Media Mentions

With his time in office waning, President Barack Obama is speaking out on race and poverty in increasingly blunt terms as violent protests in U.S. cities highlight the unrealized promise of his election....“I must confess to having shared that great optimism, especially because I had been so impressed personally with Barack Obama when he was my student and research assistant,” said Laurence Tribe, a constitutional law professor at Harvard University."

An op-ed by Robert J. Smith and Charles J. Ogletree Jr: Last week, the U.S. Supreme Court heard oral arguments in a death penalty case, Glossip v. Gross, challenging the use of midazolam — a drug intended to induce an anesthetic and unresponsive state — in executions. The court must consider whether midazolam’s use violates the Eighth Amendment’s ban on cruel and unusual punishment, and specifically whether there is an intolerable risk that the drug, which has been tied to at least three botched executions, will cause gratuitous suffering. Doctors have referred to the use of midazolam as “a failed experiment.” Sen. John McCain (R-Ariz.) labeled a botched execution in Arizona “torture.” And Justice Elena Kagan observed during oral arguments that regaining consciousness during an execution by lethal injection is “like being burned alive.”

Panelists raised concerns about the implications of the U.S. Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. at Harvard Law School’s annual conference on law, religion, and health on Thursday. ... Law School professor Charles Fried provided context for the issue Dionne raised, pointing to a different interpretation of the protection of religious freedom under the First Amendment, which he said was not always used to challenge laws. “It was assumed that the First Amendment had to do with beliefs and persecution of people for their beliefs,” Fried said. “[It] had nothing to do with granting exemption from what have come to be called laws of general applicability.” Law School Dean Martha L. Minow recognized the difficulty of this topic and empathized with the personal nature of religion in many people’s lives. In cases where individuals cannot find a way to reconcile this issue, Minow proposed an extreme solution. “There will be some issues where the values of this country will run in conflict with some people’s religious views, and if they can’t live with it they should leave,” she said. Minow herself could imagine choosing to leave the country over renouncing her religion, she said.

The U.S. Supreme Court has almost certainly made its decision about the right to marry for same-sex couples. The justices met in private conference Friday, May 1, and took a vote. They have until June 30 to issue their decision. ... Roberts' seeming willingness to recognize sex discrimination in the context of bans on same-sex marriage stood in stark contrast to his equally blunt comment to same-sex couples' attorney Mary Bonauto. "My question is you're not seeking to join the institution, you're seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship." To that remark, Harvard Law Professor Charles Fried said he would have replied, "So what?" "At one time, people thought women were inferior to men intellectually and physically, and Aristotle thought women made no contribution to the genetic component." said Fried, a U.S. solicitor general under President Ronald Reagan and a former member of the Massachusetts Supreme Judicial Court. "They were wrong then, and we think we've got it right now. If I had been arguing ... I'd have said, 'Maybe that was the definition back then, but it's the wrong definition of the concept we're talking about now.'"

An op-ed by Noah Feldman: In a major vindication for Edward Snowden -- and a blow for the national security policy pursued by Republicans and Democrats alike -- the U.S. Court of Appeals for the Second Circuit ruled Thursday that the National Security Agency’s metadata collection program is unlawful. This is the most serious blow to date for the legacy of the USA Patriot Act and the surveillance overreach that followed 9/11. The central question depended on the meaning of the word "relevant": Was the government's collection relevant to an investigation when it collects all the metadata for any phone call made to or from anywhere in the U.S.? The court said no. That was the right decision -- not so much because it protects privacy, as because it broke the bad precedent of secret law created by the NSA and endorsed by the secret national security court known as the Foreign Intelligence Surveillance Court.

An op-ed by Noah Feldman: Reports of German spying on European corporate targets at the behest of the U.S. have led to calls that Chancellor Angela Merkel was hypocritical for complaining about U.S. spying on Germany. Well, yes -- but the hypocrisy of politicians hardly comes as a shock. What’s more striking about the recent revelations is their targets -- and what they say about U.S. government claims that it doesn’t spy on behalf of private U.S. corporations. Start with a rather obvious question: Why would the U.S. government rely on Germany to spy on European corporations? Why not just do the spying directly? It’s not as if the U.S. lacks the intelligence capacity to do it. After all, the U.S. spied directly on Merkel in the episode that made her object so strongly and publicly and hypocritically.

Where is the legal star power on this year’s law school commencement circuit? It seems the nine justices of the U.S. Supreme Court will sit out the 2015 graduation grind. ... Preet Bharara, U.S. attorney for the Southern District of New York, seems the 2015 law school graduation MVP. He is slated to deliver remarks during the University of California, Berkeley School of Law’s May 15 ceremony, followed by graduations at Pace Law School on May 17 and New York University School of Law on May 21. Bharara is a veteran on the law commencement scene—he earned rave reviews along with actress Mindy Kaling when they spoke together during Harvard Law School’s class day in 2014. For this year’s class day event, Harvard law students will hear from former U.S. Rep. Gabrielle Giffords and her husband, astronaut Mark Kelly. The couple has advocated gun control since Giffords was wounded in a 2011 mass shooting. ... At least three Harvard law professors will address students at other schools: Cass Sunstein at the University of Pennsylvania Law School; Charles Fried at Columbia Law School; and David Wilkins at the University of Iowa College of Law.

Facebook has published new research that claims the social network is not an "echo chamber" that keeps people from being exposed to political opinions that are different from their own. The study published Thursday in Science magazine explored the question of whether Facebook creates "filter bubbles." ... Christian Sandvig says only 9% of Facebook users identify their "ideological affiliation" in a way that was "interpretable." Of those that report an affiliation, only 46% reported an affiliation that was "interpretable," said Sandvig, who is an associate professor at the University of Michigan and a faculty associate of the Berkman Center for Internet & Society at Harvard University.

On a daily basis, you probably type dozens of URLs into your browser to get the websites where you read the news, check your email, access your bank records, and shop online. But chances are you don’t know much about the complex, decentralized naming and numbering system that makes it all work behind the scenes—or the worldwide discussion about who should be responsible for overseeing this system when the U.S. government gives up that role at the end of 2015. ...It was Postel, for example, who assigned two-letter country codes to every nation of the world, which is how Tuvalu and Micronesia fortuitously ended up in control of such profitable TLDs. To make it sound more official, Postel was referred to as the Internet Assigned Numbers Authority, or IANA, because, as Harvard Law professor Jonathan Zittrain put it, “As the Internet’s protocols were written up it seemed a little informal to say with a technical document, ‘Well, a guy named Jon performs this function.’ ”

Comcast Corp. and Home Box Office Inc. were sued by pay-per-view customers who claim they were ripped off by a failure to disclose boxer Manny Pacquiao had a shoulder injury going into his May 2 fight with Floyd Mayweather Jr. ... They're trying to force the companies that televised the fight, the boxers and their management companies to forfeit the estimated $300 million they made from the event. A class-action defense lawyer not involved in the case said it may face an early knock-out attempt. "If I were representing any of the defendants, I would relish making a motion to dismiss," said Andra Greene of Irell & Manella LLP in Newport Beach, California. "There's no specificity as to who knew what when."... Harvard University law professor William Rubenstein echoed the California litigator. "If the claims are based on state law and the law is different in every state, than it would be hard to have a nationwide class action," he said.

Columbia law professor Tim Wu smarmily insinuates on the New Yorker’s website today that if colleagues like Harvard’s Laurence Tribe are going to speak on behalf of huge corporations like Peabody Energy in its lawsuit against the Environmental Protection Agency, instead of defending “underrepresented” clients whose views otherwise “would not be heard,” then universities ought to rethink their longstanding policy of letting faculty lawyers work for private clients. It is deliciously self-satirical that Wu also directs a Columbia Journalism School First Amendment center as well, for the real purpose of his piece seems less a complaint about the wealth of Tribe’s client than an effort, however anemic, to silence Tribe’s defense of constitutional views that Wu dislikes. Free speech, indeed.

The Office of Attorney General Maura Healey will on Thursday defend the constitutionality of a state statute that makes it a crime to knowingly lie in political campaign material — opposing civil liberties advocates, newspaper publishers, and a trend in judicial rulings that concludes such laws can have a chilling effect on free speech....Laurence H. Tribe, professor of constitutional law at Harvard, noted that while an attorney general may decline to defend a law, “in sufficiently extreme cases,” or when directed by the president as Holder was, Tribe said “an independently elected state AG like AG Healey might be regarded as having less discretion to take such a stance.”

Boston leaders and community activists have long called for more and better ways to handle civilian complaints of police misconduct. The news that the Boston Police Department is developing a third-party mediation program in conjunction with Harvard Law School shows that the department is serious about building better bridges with the community...But other details of the program are still being tweaked...For example, the police department says it won’t force any officer to attend a mediation session. Rachel Viscomi, who is assistant director at the Harvard Negotiation & Mediation Clinical Program and who worked with the Boston police to develop the initiative, agrees. “Mediation should always be voluntary."

An op-ed by Nancy Gertner. The anti-shackling bill passed last year abolished the barbaric practice of putting restraints on incarcerated women who are pregnant and sought to create a minimum level of care for pregnant women in correctional facilities. When the bill was signed into law, Marianne Bullock of the Prison Birth Project said the next challenge would be to ensure the law is enforced. That challenge still needs to be met.

What is going on with Laurence Tribe, professor at Harvard Law School, mentor to Barack Obama, and one of the most venerated legal scholars in the country? Over the past month, he has come under widespread and sometimes vicious attack. He has been called a sellout and a traitor whose arguments are “baseless” and “far-fetched” by professors at New York University, Harvard, and Georgetown. Most of the specific criticism arises from his representation of Peabody Energy, a coal company, in its effort to squash the Environmental Protection Agency’s regulation of carbon emissions. Of course, it is natural, and part of the job of an academic, to have people disagree with you. But there is a more serious question here: Is Tribe being unfairly indicted for a deviation from liberal orthodoxy, or has he taken steps that justifiably undermine his credibility as a scholar?

The fatal shootings in Garland, Texas, of two extremist gunmen as they attacked an anti-Islamist meeting was a vivid reminder of the virtually unique protections afforded by the US constitution to free speech, no matter how hate-filled or provocative, according to prominent first amendment experts...Harvard University law professor Laurence Tribe said the Garland attack illustrated a major difference in free speech law between the US and almost every other country in the world. “Most other nations recognize a category of hateful speech that is likely to trigger outrage and even retaliation, but the first amendment has for many decades been interpreted to allow speakers like Pamela Geller to spread their disturbing messages to the world at large,” Tribe said.

An op-ed by Susan Crawford. Mobile wireless — which allows you to make calls while you are driving a car, as signals are handed off from one tower to the next — is an ever-smaller part of the overall wireless marketplace. We don't always need to simultaneously move and communicate. Most of the time, in fact, we're in one place — in a room, at work, at home. And when we are stationary, it's very likely that we are using WiFi. As more tablets, smartphones, and other wireless devices (including sensors monitoring everything around us) are connected to the Internet, the demand will grow for WiFi, in which our information is transported over unlicensed airwaves made possible by wires near us.

An op-ed by Alan Dershowitz. When Baltimore’s state attorney Marilyn Mosby announced charges last week against six officers in the death of Freddie Gray and proclaimed to the city that “I heard your call for ‘no justice, no peace,’” it’s possible that her decisions were based, at least in part, on the understandable goal of preventing further riots. This goal is commendable, but the mean selected to achieve it — hearing the call of demonstrators — raises fundamental questions regarding the due process right of those charged with serious crimes. No decision on charges should ever be made on the basis of satisfying the demands of demonstrators or under the threat of violent demonstrations. Crowd control is not a proper component of prosecutorial discretion and is inconsistent with due process. Prosecutorial discretion should be exercised on the basis of an objective application of the law to the facts and not on the basis of the impact it may have on the crowd.

In an upcoming initiative, the Harvard Mediation Program at Harvard Law School would help mediate complaints levied by civilians against Boston Police Department officers, according to Rachel A. Viscomi, the assistant director of the Harvard Negotiation & Mediation Clinical Program at the Law School...“Mediation provides an opportunity to engage and potentially repair individual instances of hurt and misunderstanding, helping to strengthen connection and understanding between police officers and the communities they serve,” Viscomi wrote in an email.

Jasleen Kohli estimates that she’s attended more than 100 protests, but until 2013 she couldn’t get arrested in this town. As a lawyer, she often was called on to witness demonstrations and spring her fellow activists from jail...These days, as director of UCLA law school’s Critical Race Studies program, Kohli trains students to scrutinize the role of race in the justice system...Mentored by Lani Guinier, Bill Clinton’s short-lived nominee for assistant attorney general for civil rights, Kohli gravitated toward economic justice issues. “Think about jobs, housing, education — a lot of it comes down to different access to resources. The way those resources are allocated comes from a history of racism and institutional privilege.”

An op-ed by Noah Feldman. It was morally wrong for two men to attack an anti-Islam installation last weekend in Garland, Texas, and no one should mourn the death of these terrorists. But what about deliberately provoking the assault by staging a competition for the most insulting caricature of the Prophet Muhammad? Was that morally wrong? Or was it just a reasonable exercise of the right to free speech? It’s easy to be distracted by the condemnation of the crime, which should be absolute. No verbal provocation can justify killing. But it’s also easy to be distracted by the First Amendment.