Media Mentions

In the first Affordable Care Act case three years ago, the Supreme Court had to decide whether Congress had the power, under the Commerce Clause or some other source of authority, to require individuals to buy health insurance. It was a question that went directly to the structure of American government and the allocation of power within the federal system...These examples all come from a brief filed on the government’s behalf by a group of law professors who are specialists in statutory interpretation, administrative law or constitutional law. One is Charles Fried, a law professor at Harvard who served as solicitor general during the second Reagan administration.

An op-ed by Susan Crawford. The news that the head of the Federal Communications Commission just proposed that the agency should use its authority — under Title II of the Telecommunications Act — to oversee high-speed Internet access services should be welcomed by all who use the Internet. But let's be clear about what this is and isn't. He's not proposing to "regulate the Internet" or the websites of businesses that use the Internet to reach customers. This would not constrain what Americans can say online, nor would it constrain the extraordinary innovation that has come about because of the Internet's borderless and permission-free nature.

Laws regarding rape should be taught in criminal law classes at Harvard Law School despite its potential to trigger psychological trauma, two Law professors argued at a discussion on the topic Wednesday afternoon. Law professor Jeannie C. Suk, who has taught criminal law and procedure at the Law School, and Andrew M. Crespo ’05, who served as Harvard Law Review’s first Latino president and will teach criminal law for the first time next fall, both stressed the pedagogical value of including rape law in a curriculum. Suk spoke out on the issue when she penned a New Yorker article called “The Trouble with Teaching Rape Law" in December.

In the long-running battle over a proposed 65-story office tower next to Grand Central Terminal, a little-known real estate investor has lobbied New York City officials, supported community opposition and offered to buy the project site from the developer. Nothing seemed to work. So as the planned office tower and a rezoning proposed by the de Blasio administration nears the end of the city’s lengthy review, the investor, Andrew S. Penson, brought in a weapon that he hoped would extinguish the project once and for all: Laurence H. Tribe, a liberal constitutional scholar from Harvard...Mr. Tribe testified at a City Planning Commission hearing on Wednesday that the rezoning and the 1.6-million-square-foot tower — twice as big as the current zoning allows — “would amount to an unconstitutional taking” of the Grand Central owner’s property, saddling taxpayers with a potential $1 billion liability.

With all the critical acclaim being heaped on the civil rights drama “Selma,” which recently won an Oscar nomination for Best Picture, two big names in Boston’s African-American business community wanted to make sure black students have a chance to see the movie, too. So Flash and Bennie Wiley—he’s of a counsel at Morgan, Lewis & Bockius, she’s principal of The Wiley Group — reached out to their network of friends and colleagues, who collectively raised $120,000 for the Students of Selma Fund, which at last count has enabled 10,890 Boston middle and high schoolers to see the film for free...The scores of donors included...Harvard Law School’s Charles Ogletree and his wife, Pam, CEO of Children’s Services of Roxbury.

This week, the Federal Communications Commission is expected to propose reclassifying how Internet service providers are regulated, treating them treated like utilities. The idea is to foster net neutrality, so all data flowing across the Internet is treated equally. What would the new regulation mean for consumers? ...Jonathan Zittrain, a professor of law and computer science at Harvard University, says: “Everybody can keep powder dry. I don’t think there are any immediate changes." FCC officials seem to be just focusing on net neutrality, Zittrain says. “These are not wild-eyed radicals somehow wanting to blow up the system,” he says. Zittrain says these are all things the FCC could do, if it wanted to – and that’s a big if.

Carol Steiker’s interest in criminal justice took hold while she was at Harvard Law School (HLS) in the 1980s. While studying there, she recalled, “It began to appear to me that criminal justice was a great engine of American inequality.” Steiker became interested in capital punishment while clerking for U.S. Supreme Court Justice Thurgood Marshall, an ardent opponent of the death penalty. Now the Henry J. Friendly Professor of Law at HLS, Steiker is using her year as the Radcliffe Institute for Advanced Study’s Rita E. Hauser Fellow to work with her brother and frequent collaborator, Jordan M. Steiker, on a book about the past half-century’s experiment with the constitutional regulation of capital punishment in America. She spoke with the Gazette about the history and future of the death penalty in the United States.

Second-year Harvard Law School student and government Ph.D. candidate Jonathan S. Gould ’10 has been elected the 129th president of the Harvard Law Review, a student-run legal journal independent from the Law School. Gould succeeds third-year law student Rachel G. Miller-Ziegler. Gould hails from Newton, Mass. and studied Social Studies at Harvard as an undergraduate. The Law School posted an announcement of the election on Tuesday night.

An op-ed by Mary Ann Glendon. My title echoes a lecture given almost a century ago by the great German social theorist Max Weber, in which he argued that in modern constitutional states nearly everyone is engaged in politics at least by avocation - if only through voting and discussing the issues with one's friends. Granted, if politics is, as many believe, only about getting and keeping power, it would be silly to think of politics as a "calling" in any meaningful sense. And if politics is only about power, there is no particular reason why principled people should choose public service over other pursuits, or why men and women in private life should take much interest in civic matters. But, if one takes the Aristotelian definition of politics as "free men deliberating about how we ought to order our lives together" and combines it with Weber's insight that nearly all of us are drawn into politics, the idea of politics as a calling becomes more understandable. Moreover, one comes close to what Catholic social thought has been trying for the past fifty years to communicate about the political responsibilities of laymen and women.

I’m delighted to report that Prof. Jennifer Rothman and I have just submitted an amicus brief supporting en banc review by the Ninth Circuit in Davis v. Electronic Arts (and thus calling on the Ninth Circuit to reconsider Keller v. Electronic Arts, on which Davis relies). The brief is on behalf of 27 intellectual property law and constitutional law professors: [including]...Lawrence Lessig (Harvard Law School)...As the Keller majority acknowledged, references to real people, whether in novels, plays, songs, books, or video games, are on equal footing under the First Amendment. When that opinion, and the panel decision in this case, held that fantasy football video games are constitutionally unprotected against right of publicity claims, a wide range of speech was put in danger.

Two high-profile trials are in the spotlight in Massachusetts, but one will be devoid of photographs and video from inside the courtroom. While cameras are documenting every move in the murder trial of former New England Patriots player Aaron Hernandez in Fall River Superior Court, artist’s sketches will offer perhaps the only visual glimpse inside the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev, a former UMass Dartmouth student. “I think it’s outrageous there are no cameras allowed in the federal courts,” said retired federal judge Nancy Gertner, who now teaches at Harvard Law School. “It doesn’t make sense, and in my view, it’s actually a scandal.”

Elite colleges admit students in a way that will fail to diversify higher education -- and the current use of affirmative action has little impact, according to a new book by Lani Guinier. Her new book, The Tyranny of the Meritocracy: Democratizing Higher Education in America, has just been published by Beacon Press. In it she argues that current admissions systems are based on tests, rankings and prestige -- in ways that undermine American democracy. And she argues for replacing what she calls "testocratic merit" with a new "democratic merit." This shift would place more emphasis on the good to society of educating a diverse group of people than on identifying the people with the best credentials (as currently defined by society) for admission. Guinier, a professor of law at Harvard University, responded via e-mail to questions about her new book.

Following the lack of an indictment in two widely-publicized cases involving police homicides in Ferguson, Mo., and Staten Island, New York City, calls for grand jury reform are growing louder...But Harvard Law School professor Ron Sullivan says that secrecy also prevents the defense from being able to present evidence to the jury, and blocks them from accessing critical information that only the prosecution knows—things that can hinder a fair trial. “My personal view is that claims of secrecy are outdated, and an outmoded way of thinking about the grand jury. More information in criminal cases is more fair,” said Sullivan via a phone interview.

An op-ed by Cass Sunstein. Supreme Court Justices Antonin Scalia and Clarence Thomas are famous for being “originalists”; they believe that constitutional provisions mean what they meant at the time they were ratified. In Scalia’s words, originalism promotes the rule of law, because it can help ensure a “rock-solid, unchanging Constitution.” Whether or not we agree, Scalia's goal is honorable: He wants to limit the discretion of federal judges and allow the American people to govern themselves. As the lawyers prepare their briefs for the upcoming Supreme Court argument about bans on same-sex marriage, how remarkable, then, that some prominent originalists -- and admirers of Scalia -- are saying that such bans are inconsistent with the original understanding of the 14th Amendment.

Entrepreneurs, political scientists, lawyers, and students from Harvard and around the United States came together this weekend for the Kennedy School of Government’s #Hack4Congress, a “not-just-for-technologists” event that aimed to brainstorm solutions to what an organizer called congressional "dysfunction."...“[We] put together this hackathon based on the realization that a lot of the innovation and technology organizations today are...looking for ways to replace, [not improve], government,” said Maggie L. McKinley, one of the event’s organizers and a lecturer at the Law School. “We were hopeful that this event could remedy...not only the dysfunction in Congress but also the absence of innovative solutions.”

An op-ed by Mark Roe and Michael Troge. President Obama has reanimated the idea of taxing the debt of big banks to help stabilize the banking industry and prevent future financial crises. The administration argues that the new tax would discourage banks from taking on too much risk by making it “more costly for the biggest financial firms to finance their activities with excessive borrowing.” The president’s bank tax is unlikely to gain traction in the new Congress, following the failure of similar proposals from the administration in 2010 and last year from former House Ways and Means Chairman Dave Camp. But even if it became law, it wouldn’t put a sizable dent in bank debt. The existing tax system strongly encourages debt finance and the proposed new tax will not fundamentally change this.

In the first test of its constitutionality, a state law that makes it illegal to lie in campaign ads is being challenged by a Republican political action committee whose treasurer is facing criminal charges over a negative mailing in the last election cycle....“It’s dramatically unconstitutional in its sweep,” said Laurence H. Tribe, the Carl M. Loeb University Professor and professor of constitutional law at Harvard. “This is an easy one.” The Supreme Court even struck down a federal law that made it illegal to lie about receiving a Medal of Honor, he noted, and held that lying can be criminalized in only limited instances, such as perjury. “It’s true that our politics from the very beginning has involved a lot of mudslinging,” he said. “But only in a tyrannical society can you shut that down this broadly.”

The University of Virginia held a two-day conference last February on “Sexual Misconduct Among College Students.” One of the speakers was the Education Department’s Assistant Secretary for Civil Rights, Catherine Lhamon, who touted her office’s efforts to compel colleges and universities, under pain of losing federal funds, to adopt draconian policies on sexual harassment and assault. These policies have raised serious concerns about due process and basic fairness for the accused, and an audience member asked Ms. Lhamon how she planned to deal with such “push-back.” Her reply: “We’ve received a lot of push-back, and we need to push forward notwithstanding.” The recent experience of Harvard Law School demonstrates the value of pushing back...Most institutions yield to OCR’s pressure without significant dissent. But at Harvard, 28 law professors—including liberal luminaries Elizabeth Bartholet, Alan Dershowitz, Nancy Gertner, Janet Halley, Duncan Kennedy and Charles Ogletree —signed an open letter, published in the Boston Globe, in which they described the new policies and procedures as “inconsistent with many of the most basic principles we teach.”...Still, the law school’s new procedures are a significant improvement over the university’s, and they promise more fairness than the kangaroo-court systems many universities have adopted under OCR pressure. The investigation of Harvard College is still under way, and the university could do far worse than to follow the lead of Harvard Law, the school that pushed back.

While U.S. Supreme Court opinions are routinely examined through the political lens of the court’s nine justices, far less is known about the ideological makeup of the thousands of judges on the nation’s federal and state benches...Now, research from Maya Sen, an assistant professor of public policy with the Ash Center for Democratic Governance and Innovation at Harvard Kennedy School (HKS), and Adam Bonica, an assistant professor of political science at Stanford University, sheds some light on the opaque world of politics in the judiciary...[Nancy] Gertner said the research “comports” with her view that Republican presidents such George W. Bush selected conservative judges, but Democratic presidents, including Clinton and Barack Obama, J.D. ’91, largely pulled their punches in an effort to sidestep contentious confirmation processes...Charles Fried, the Beneficial Professor of Law at HLS, said the research documents what is already known: that politics has always played a decisive role in judicial appointments.

A senior commander in the rebel Lord’s Resistance Army (LRA), Dominic Ongwen, appeared before a judge at the International Criminal Court (ICC) this week to face charges of war crimes carried out during a 20-year conflict in northern Uganda....It is not yet clear whether the ICC’s prosecutor, Fatou Bensouda, will seek additional charges. Alex Whiting, a former member of the ICC’s Office of the Prosecutor, said it was possible fresh charges could be added as further evidence was gathered in the run-up to the trial. “Since the warrant in the case is so old, the Office of the Prosecutor will need to do additional investigation [to support existing charges],” Whiting said. “In that process, it is very possible that it will uncover evidence supporting additional charges.”

An op-ed by Noah Feldman. Why has Greece chosen a far-left government at a time when discontented and frustrated voters elsewhere in Europe have turned to the far right? In northern Europe, the frustrated voters’ parties of choice are right wing and anti-immigrant. So how come frustrated Greeks made a sharp turn to the left, electing the near-communist Syriza party to lead the government? The choice of left over right is especially striking because Greece is a first port of call for so many new immigrants to Europe.