Media Mentions

An op-ed by Noah Feldman. Back in the 1940s, when the U.S. Supreme Court last spent a lot of time struggling with the question of what parts of a worker’s day were included in the job for the purposes of getting an hourly wage, the cases tended to come out 5-4. Then, liberals inclined toward unions while moderates and conservatives preferred employers. Times have changed. Today, the Supreme Court issued a 9-0 decision that warehouse employees who spend their days fulfilling Amazon orders won’t be paid for mandatory end of the day screening designed to check if they’ve stolen anything from the shelves. To do so, the court interpreted the 1947 Portal to Portal Act essentially as a pro-employer law. And the liberal justices were supremely uninterested in the moral logic of employee compensation.

An op-ed by Noah Feldman. Why won’t any U.S. politician, official or contractor ever be prosecuted for torturing people? That big question looms in the background of the just-released CIA report. Until now, the conventional wisdom had been that the Central Intelligence Agency's actions were essentially immunized from prosecution because the agency relied on opinions from the Office of Legal Counsel at the Department of Justice -- the so-called torture memos. The report championed by Democratic Senator Dianne Feinstein of California says that CIA interrogations went well beyond the techniques described to the Office of Legal Counsel and authorized as legal in its memos. If that’s true, then the interrogators essentially flouted even the counsel's expansive and doubtful approval of enhanced interrogation techniques. So shouldn’t somebody be held criminally responsible? And if not, why not?

An article by Michael Zuckerman `17. We do a lot of punishing in America these days—more than virtually every other country, and far more than we did when crime rates were higher...In recent years, a nascent recognition has begun to take root on both sides of the political aisle that our current incarceration system is not only too harsh and too expensive, but an assault on the dignity of the people pulled into it. (Among theorists and activists, these critiques go back a lot farther.) As we think about reforms, we should note the successes of a still-exotic creature in that system: the community court.

A story in last month’s Rolling Stone magazine described the gang rape of a student at a University of Virginia fraternity house. The university responded by suspending all fraternities and a criminal investigation was launched. But in recent weeks, key elements of the alleged victim’s story have been questioned and could not be verified by other news organizations. Advocates say the firestorm around the story has led to blaming the victim and sets back efforts to address campus sex assault. Diane and guests discuss a controversial Rolling Stone article and what it means for journalism standards, the rights of victims and those accused. Guests: Diane Rosenfeld lecturer on law and director, Gender Violence Program, Harvard Law School; former Senior Counsel to the Violence Against Women Office, U.S. Department of Justice.

An op-ed by Noah Feldman. Ever sit on Amtrak's Acela high-speed service wondering why our train system is so medievally slow compared with, say, China’s? Or rather: Have you ever sat on the Acela and not thought that? Either way, the U.S. Supreme Court has a case for you. Today it's considering the constitutionality of a law that, at least in theory, allows Amtrak to pressure the companies that own the rail lines and freight trains to improve access for passenger trains. And the constitutional issue is a fascinating one that goes back to the New Deal: How much lawmaking authority can Congress delegate to bodies other than itself?

An op-ed by Bruce Hay. As another grand jury has let a cop walk away for gratuitously killing an unarmed black man, a loud silence reverberates through the country, just at it has for many years. It is the silence of the nation’s lawyers. The fact is, we operate two criminal justice systems in the United States. One is for affluent white people, who when accused of crime are treated as citizens, as people with rights. They get the benefit of the constitutional protections we boast about in textbooks and television shows, protections like due process and trial by jury and proof beyond reasonable doubt. And they are often shown great leniency for very serious crimes, including homicide. The other system is for poor people and racial minorities, who are treated more like trash to be removed from the streets.

Rhana Bazzini believes that government should change the way elections are funded. She believes the corporate influence on politics is corrupt and the power of change should be with the people. That simple idea prompted the 81-year-old activist to walk 435 miles from Sarasota to the steps of the Old Capitol...Harvard constitutional law professor Lawrence Lessig flew into Tallahassee on Tuesday to be a part of the movement. "I've been keen to support movements that are trying to push for a change in the way we fund elections," Lessing said. "We have such an incredibly concentrated and centralized way of funding elections right now. A tiny fraction of the one percent are the relevant funders of congressional campaigns."

For much of the year, Wall Street advisers were scrambling to engineer the cross-border transactions known as inversions. The result was billions of dollars in mergers and acquisitions, adding fuel to a banner year for deal-making. But an abrupt change to tax rules in September left the future of inversions in limbo...“It has elevated the issue of corporate tax avoidance to a public issue more than it has been in quite some time,” said Stephen E. Shay, a professor at Harvard Law School. “It’s also elevated the issue of anomalies in our tax rules and the need for reform.”

Add another tribute to the long list of them heaped on Margaret Marshall...over the course of her career. Monday night, the former chief justice of the state’s highest court received the 2014 “We Are Boston Leadership Award,” which honors people and organizations that embrace diversity and immigrant heritage. Marshall, of course, is a native of South Africa and wrote the 2003 Supreme Judicial Court opinion that legalized same-sex marriage in Massachusetts. She was also the first female general counsel of Harvard University.

An op-ed by Martha Minow and Robert Post. In the wake of the recent grand jury decisions in Ferguson and Staten Island, outrage and despair are reverberating across the nation, including at the law schools where we teach. Many of our students are struggling to reconcile their ideals of justice with what they perceive as manifest injustices in the criminal law system. Law establishes its legitimacy through procedures that are open and fair. Legal procedures create accountability for those who wield power. We ought to determine the law’s legitimacy at least in part from the perspective of those who suffer its coercion. When the law’s blows fall persistently on the lives and bodies of identifiable groups, and when the procedures we have designed to create legal accountability are short-circuited or fail, our aspiration for a legitimate social order is put at risk.

About 30 seconds into an appearance before the U.S. Supreme Court this fall, lawyer Paul Clement was interrupted by a question. It came from Justice Elena Kagan, and it cut to the heart of his case. But during Clement's response, another justice jumped in: his former boss, Justice Antonin Scalia. He suggested a different answer to the question that his fellow justice had posed. Clement, once a clerk for Scalia, took the cue. "You could definitely say that, Justice Scalia."...As retired Justice John Paul Stevens explained, "They earn respect by their performances. And because they have respect, they are more successful. I am not aware of any downside."...Charles Ogletree, a professor at Harvard Law School, disagrees. "I think that hearing different voices, from more women and people of color, would change the way the court looked at cases and analyzed them," Ogletree said.

Margaret Marshall, the former chief justice of the highest court in Massachusetts has been selected to receive an award honoring the accomplishments of people and organizations who embrace diversity. The "We Are Boston Leadership Award" will be presented by Boston Mayor Martin Walsh on Monday at the We Are Boston gala.

An op-ed by Susan Crawford. Last week, City Controller Scott Stringer and the five borough presidents called upon Mayor de Blasio to substantially revise his plans to transform payphones across the city into wireless hotspots — with their criticism rooted in the notion that the LinkNYC system is somehow unfair to low-income New Yorkers. This is a deeply misinformed attack on a visionary plan — an attack that, if successful, could widen, not shrink, the digital divide over the long term.

Nearly half of the Harvard Law School student body signed an open letter to President Barack Obama and Attorney General Eric Holder in the wake of recent grand jury decisions to not indict police officers for the deaths of two unarmed black men. The letter, released by the Harvard Black Law Students Association, calls for the use of body-worn cameras by police and the prosecution of police officers who “deprive black men and women of their constitutional right to life.” The latest instance of student activism in response to the decisions, the HBLSA letter collected over a thousand signatories in 24 hours, including over 800 law school students, 39 student organizations, and 30 members of the faculty and staff. Of the faculty and staff, 9 professors, including Charles R. Nesson ’60 and Charles J. Ogletree, Jr., signed their names.

An op-ed by Shakeer Rahman [`15] and Sam Barr [`15]. Eric Garner was not the first American to be choked by the police, and he will not be the last, thanks to legal rules that prevent victims of police violence from asking federal courts to help stop deadly practices. The 1983 case City of Los Angeles v. Lyons vividly illustrates the problem. That case also involved an African-American man choked by the police without provocation after he was stopped for a minor offense — a burned-out taillight. Unlike Mr. Garner, Adolph Lyons survived the chokehold. He then filed a federal lawsuit, asking the city to compensate him for his injuries. But he wanted more than just money. He also asked the court to prevent the Los Angeles Police Department from using chokeholds in the future.

Harvard University law professor Laurence Tribe, a mentor to President Barack Obama, said the administration’s carbon rule for power plants is “a remarkable example of executive overreach” that raises “serious constitutional questions.” Tribe, who submitted joint comments to the Environmental Protection Agency with coal producer Peabody Energy Corp., said the agency should withdraw its plan to cut emissions from power plants because it reverses decades of federal support for coal. “The Proposed Rule lacks any legal basis and should be withdrawn,” Tribe and Peabody wrote in their filing, which law firms for the company said was submitted to EPA on the Dec. 1 deadline. Peabody, the nation’s largest coal producer, has declined more than 44 percent in trading since the EPA plan was unveiled at the beginning of June.

An op-ed by Mark Roe. If you could make one change to the bankruptcy code, what would it be? It’s the safe harbors. The bankruptcy code works well, but even good codes could be improved. Everyone will have a favorite for making a typical industrial firm bankruptcy work better. (Mine is to better handle the time value of money during a bankruptcy proceeding.) But only one piece of the code can spill over to damage the entire American economy in a serious way. And it’s those safe harbors for repo and derivatives. They need narrowing and fixing.

Most people struggle to plan their financial futures beyond the next decade, while those with money and foresight are likely to think well in advance about what they want to leave their children, grandchildren and even great-grandchildren. But what about planning for eternity? It seems too long to contemplate. Yet in the last several decades, states have begun competing with one another for the business of perpetual trusts, which are designed to last forever, or at least 1,000 years in the case of Wyoming...But now a Harvard Law School professor, Robert H. Sitkoff, has written an academic paper making the case that perpetual trusts are unconstitutional in some of the very states that have tried hardest to persuade people to establish them..."Why do we care about these perpetual trusts?” Mr. Sitkoff said. “Because there’s a lot of money in them. Billions of dollars is pouring into these jurisdictions.”

Want to take a popular Harvard course? Go to Yale. Next fall, Yale University in New Haven, Conn., will offer a computer-science class in which its students will watch live-streamed lectures from Harvard University, and students on both campuses will take uniform tests, visit one another and collaborate in other ways both digital and physical...“A shared course allows for interactions not possible within a single physical classroom…cultivating a healthy diversity of viewpoints,” said Jonathan Zittrain, a Harvard Law School professor who co-founded the school’s Berkman Center for Internet & Society.

When newly elected Massachusetts State Senator Eric P. Lesser ’07 [HLS `15] arrived at Harvard from his hometown of Longmeadow, Mass. in the fall of 2003, his career in politics was well along its way...Lesser...Lesser will begin serving on Beacon Hill in Boston on Jan. 7.

The deaths this summer of two African American men at the hands of white police officers again brought racial tension to the national spotlight; The death of unarmed black teen Michael Brown in Ferguson resulted in a decision to not indict Officer Darren Wilson last month, and on Wednesday, a grand jury in New York decided to not charge NYPD Officer Daniel Pantaleo in the choking death of Eric Garner. Protests and rallies nationwide aim to drive home the same point: Racial inequality is alive and well, and exacerbated by the American justice system. Illinois Public Media's Hannah Meisel spoke with race relations expert and Harvard Law School professor Charles Ogletree about where the country goes from here.