Media Mentions

An op-ed by Noah Feldman. The news that California will ban its judges from participation in the Boy Scouts has been on my mind since it was announced Friday. The decision is interesting on many levels, with implications from the mainstreaming of gay rights to the centrality of scouting to Mormonism and beyond. But the angle that’s been gnawing at me is constitutional: How, exactly, can the state code of judicial conduct prohibit judges from exercising what would otherwise be their constitutional right to free association? You and I can join any private organization we want. Why can’t judges?

Poor and middle-class litigants in Florida are increasingly showing up to court without lawyers, resulting in a significant access-to-justice problem throughout the state. That was the consensus of a panel on "The Importance of Access to Justice to the Judiciary" held Friday at the University of Miami School of Law. The panel was part of a Legal Services Corp. half-day seminar. Panelists included Florida Supreme Court Chief Justice Jorge Labarga; U.S. District Judge Marcia Cooke in Miami; Richard Leefe of Leefe, Gibbs, Sullivan & Dupre in Louisiana; Puerto Rico Supreme Court Chief Justice Liana Fiol Matta; and William Van Norwick Jr., a retired judge from Florida's First District Court of Appeal. The panel was moderated by Harvard law dean Martha Minow.

...To investigate the role of motivated reasoning in the sort of institutional flip-flops that politicians and judges engage in, Harvard Law School professor Cass Sunstein and I conducted a series of surveys. In one, we asked people whether President Bush acted rightly by using a loophole to make appointments in defiance of Senate opposition. Most Republicans said he did the right thing while most Democrats said he acted wrongly. We then put Obama’s name in for Bush with a different group of respondents and asked the same question. This time the vast majority of Republicans opposed the appointments while most Democrats said he did the right thing.

An op-ed by Nancy Gertner. Questioning prospective jurors is tedious. The press usually ignores it. In Massachusetts, few judges or lawyers pay much attention to it. One judge bragged about the speed with which he picked a jury: “Ten minutes, tops, no matter what the case is.” But with the two high-profile cases of Dzhokhar Tsarnaev and Aaron Hernandez , all eyes are on jury selection. A new state statute and guidelines from the Massachusetts Supreme Judicial Court may forecast a new approach for state courts — permitting jurors to be questioned by lawyers, not just judges, and on a broad range of issues — but only for cases after Feb. 1.

The Rev. Lorenzo Lynch was in his living room here, surrounded by photographs of his daughter Loretta, when he first heard the news that Attorney General Eric H. Holder Jr. was stepping down and she was on the short list of candidates to replace him...When she graduated law school, Lynch and another Harvard student, Annette Gordon-Reed, both joined the Wall Street law firm Cahill Gordon & Reindel as litigation associates. They and another African American woman at the firm called themselves “the triplets” and worked brutal hours. “We often found ourselves sitting in a conference room at 3:00 in the morning eating Chinese food and working on a case,” said Gordon-Reed, now a Harvard law professor. “She’s a Southern steel-magnolia-type person — very, very strong,” Gordon-Reed said. “But she’s also one of the funniest people I know and a good mimic.

An op-ed by Cass R. Sunstein. For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law. In that long-repudiated case, the court struck down a maximum-hours law for bakers. A week ago, Senator Rand Paul -- a likely candidate for president, and among the most influential members of the Republican Party -- explicitly embraced Lochner, and proudly endorsed the whole idea of “judicial activism.” That tells us a lot about contemporary law and politics, and probably about the future of conservative thinking as well.

A group of 38 Harvard Law School professors have signed a letter “in support of” Law School professor emeritus Alan M. Dershowitz, who was recently accused of having sexual relations with a minor who was allegedly trafficked by billionaire Jeffrey E. Epstein...A group of three Law School faculty members—Nancy Gertner, Charles J. Ogletree, Jr., and Philip B. Heymann—began the effort to write the letter in support of their colleague late last week, Gertner and Heymann said...In an interview, Heymann said he took issue with how “Jane Doe No. 3’s” lawyers presented their allegations against Dershowitz. "[The allegations have] been set up, either purposely or by accident, I don't know which, in a way that denies him all opportunity to defend his reputation [in court]," Heymann said, adding that "he can say it, but to have the [charges] resolved officially [in court] has been put out of reach."

Scored to an ironic use of “Pomp and Circumstance,” the pic opens with homevideos of women receiving their college acceptance letters, with cries of “I got in!” While this may seem like cheap cynicism, it sets up one of the major arguments of the film, which is that universities are selling a brand and have a financial incentive to downplay incidents of campus sexual assault. Citing studies from 2000 to the present that suggest that 16% to 20% of women are sexually assaulted, the film makes the case that colleges are breeding grounds — not an association they like. Harvard Law lecturer Diane L. Rosenfeld draws an analogy: If you were to advertise that a prospective student had an equivalent chance of being the victim of a drive-by shooting, their desire to pay tuition would diminish.

When some bondholders bought debt in casinos operated by Caesars Entertainment, they didn’t think they were gambling. Instead, they were relying on the guarantees of the parent company that it would stand behind the debt payments even if something went wrong. But after Caesars got into trouble and the company eliminated the guarantee, the investors turned to an obscure, rarely invoked Depression-era law devised to protect bondholders from abusive tactics...But over the decades, few cases have explicitly invoked this aspect of the law. That two recent cases do is noteworthy, Mark Roe, a professor at Harvard Law School, said, and may change the way debt restructurings are handled. “This statutory provision affects all bond issues and has long been dormant in litigation,” Mr. Roe said in an interview last week. “But now we’ve had two recent rulings in a row taking seriously the statute’s prohibition on voting outside of bankruptcy. People doing these restructurings will have to pay attention to it.”

An op-ed by Carl L. Miller [fellow] and Dennis O. Ojogho. In November, we released a video featuring several Harvard students as they struggled to pass the 1964 Louisiana Literacy Test. While the project has received overwhelmingly positive feedback, in the comments sections of many sites across the web, several debates have been sparked in response to the video. Some commenters have questioned the comparison between literacy tests and voter identification laws and others have even questioned the purpose of this project. With this op-ed, we hope to explain exactly why this project is so important and why the comparison between literacy tests and voter ID laws is absolutely valid.

The defence teams of Deputy President William Ruto and journalist Joshua arap Sang are set to file a motion of no-case-to-answer as the prosecution prepares to close its case at the International Criminal Court (ICC) by March 2015. But the possibility of halting the trial after the prosecution concludes its case is minimal, in the view of Harvard University law professor Alex Whiting. “However, because the judges must take the prosecution’s evidence at its highest during this process, these motions very rarely succeed,” Whiting explained to Capital FM News.

When Crazy Larry took the microphone in front of the State House yesterday, he did something that momentarily proved his newly adopted moniker. He told a hundreds-strong crowd of activists for campaign finance reform that their stance toward Citizens United was ungrateful...And here their leader, Lawrence Lessig, a Harvard law professor, was telling them they’re ungrateful for the 2010 ruling whose name alone spurred raucous boos? “No, really, I think we’re being a little ungrateful,” Lessig said from under the three-cornered hat he’d inherited from a rebel called Crazy Steve. “Citizens United has been the best gift to our movement since Richard Nixon.” Lessig noted that movements to take on the system of corruption in Washington have historically stalled. In New Hampshire, he said, the people backed Sen. John McCain when he said in Bedford 16 years ago that he’d take on the system, and they backed their native Doris “Granny D” Haddock when she marched across the country for the campaign finance reform movement at the age of 90. But local focus on the issue didn’t translate to the rest of the country.

At the Supreme Court Wednesday, shouts of protest and the clatter of overturned chairs disrupted the usual calm and formality of the nation’s highest court. People yelled, “We are the 99 percent,” “Money is not speech” and “overturn Citizens United.” They were protesting the court’s 2010 decision on campaign finance, which was issued five years ago. According to critics, the decision uncorked a flood of campaign cash. The protest was short-lived, as guards hauled the demonstrators out of the courtroom. But concerns about the impact of Citizens United remain. Last year, Lawrence Lessig, a Harvard Law School professor, started a Super PAC to end all Super PACs. The idea was to raise millions of dollars — a lot of it through a Kickstarter campaign — to support about six candidates last November who were sympathetic to serious campaign finance reform.

Carl Icahn thinks that eBay Inc. ’s PayPal and Gannett Co. ’s publishing business will be prime takeover targets when they soon become independent. And he is trying to make sure nothing gets in a suitor’s way. In a corporate-governance double punch that began this week with a pact with eBay and a missive Thursday to Gannett, the billionaire joined other activist investors pushing back against a recent trend in which spun-off companies are cloaked with tough takeover defenses...Some observers said the defenses are justified. “With activists prowling everywhere these days…it’s not unreasonable to give brand-new companies a little breathing room,” said Guhan Subramanian, a professor at Harvard Law School and Harvard Business School.

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.