Media Mentions

Two Harvard Law School professors -- one a former federal judge -- and a national defense lawyer organization want to help former governor Bob McDonnell win bond pending his appeal...Nancy Gertner, a former federal judge in Massachusetts now a senior lecturer at the Harvard Law School, and Charles J. Ogletree, who also teaches there and is the executive director of the Charles Hamilton Houston Institute for Race and Justice, filed papers Tuesday siding with McDonnell...In their brief filed Tuesday, Gertner and Ogletree wrote that they intend to file a brief urging McDonnell's convictions be reversed and argue that the "official act" question is a substantial one.

As the Harvard-led academic crowd continues to fire salvos at a Republican Securities and Exchange Commission chairperson, the debate over what will either benefit corporate management, keeping board of director positions more secure, or activist investors such as Bill Ackman, making board structures weaker, hangs in the balance. Boston University Law School Professor Tamar Frankel was the latest to fire a salvo directly at SEC Commissioner Dan Gallagher. In a post on titled “What Sitting Commissioners Should and Shouldn’t Do,” Frankel again used a Harvard Law School blog to launch his attack of Commissioner Gallagher. Frankel says that it was improper for Gallagher to publish accusations against specific individuals or organizations unless that took place as part of an SEC process. The spat started when Gallagher and Joseph Grundfest, a Stanford professor, published an academic report questioning if the Harvard Shareholder Rights Program violated federal securities law.

An op-ed by Cass Sunstein. As recently as 20 years ago, it would have been pretty preposterous to argue that the U.S. Constitution requires states to recognize same-sex marriages. But there is a good chance that this summer, the Supreme Court will rule that it does. To the many people who believe in judicial restraint, or in following the original understanding of the document, such a dramatic shift in the Constitution’s meaning is alarming, even illegitimate. Are they right? A vivid answer can be found in an important but widely neglected speech from one of the greatest figures in the history of America law: Justice Thurgood Marshall.

An op-ed by Noah Feldman. On the surface, there was not much noteworthy about the U.S. Supreme Court's decision today in Holt v. Hobbs except maybe that a Muslim won a religious liberty case in the infidel West. The Arkansas prison regulation that prohibited prisoners from growing beards was silly. The court applied the federal Religious Land Use and Institutionalized Persons Act to hold that Arkansas didn't have a compelling interest in the rule and failed to adopt the least restrictive means necessary to avoid a religious burden. Deep in the weeds of the decision, however, lurk signs of a much bigger project being pursued by Justice Samuel Alito and other members of the court. Step by step, the justices are expanding the logic of religious exemptions from otherwise neutral laws. Over time, this is leading to a de facto reversal of the Supreme Court's doctrine that ordinarily denies religious exemptions under the Constitution.

An op-ed by Noah Feldman. It’s the eve of the U.S. invasion of Havana -- and it’s legal to bring back cigars now. But souvenirs aside, is anything changing in Cuba after the U.S.'s diplomatic opening and Cuba's release of 53 political prisoners? I spent the last four days in Havana, fortuitously arriving the day the new U.S. regulations kicked in. On the basis of thoroughly unsystematic conversations with Cuban-Americans who do business there, government officials and artists, the answer is: not yet.

...According to a 2014 study conducted at Harvard Law School, “more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the originally cited information.”...The footnote problem, though, stands a good chance of being fixed. Last year, a tool called Perma.cc was launched. It was developed by the Harvard Library Innovation Lab, and its founding supporters included more than sixty law-school libraries, along with the Harvard Berkman Center for Internet and Society, the Internet Archive, the Legal Information Preservation Alliance, and the Digital Public Library of America. Perma.cc promises “to create citation links that will never break.” It works something like the Wayback Machine’s “Save Page Now.” If you’re writing a scholarly paper and want to use a link in your footnotes, you can create an archived version of the page you’re linking to, a “permalink,” and anyone later reading your footnotes will, when clicking on that link, be brought to the permanently archived version.

The first page of a petition seeking Supreme Court review is the most important. It sets out the “question presented,” the one the court will answer if it takes the case. The justices do not ordinarily tinker with the wording of those questions. But on Friday something unusual happened: In agreeing to hear four same-sex marriage cases, the court framed for itself the issues it would address...“The court’s order represents good housekeeping,” said Laurence H. Tribe, a law professor at Harvard. But Professor Tribe also voiced a small note of caution. “The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”

An op-ed by Mark Roe. Last month, the United States Congress succumbed to Citigroup’s lobbying and repealed a key provision of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act: the rule that bars banks from trading derivatives. The Dodd-Frank law’s aim was to prevent another financial crisis like that of 2007-2008; the repeal reduces its chances of success...This sub rosa government indemnification of major banks’ derivatives portfolios undermines financial stability. If a major bank defaults on its derivative trades, the banks with which it has traded could also fail. If several large, interconnected derivatives-trading banks collapse simultaneously, the financial system could be paralyzed, damaging the real economy – again.

An op-ed by Cass Sunstein. Suppose you're watching a baseball game, and your favorite player, a terrific hitter with a .320 average, has struck out three times in a row. If you’re like most people, you might think, “He’s due!” -- and conclude that on his fourth at-bat, he’s likely to get a hit. Now suppose that you are working in a college admissions office. Your job is to evaluate 200 applicants, about 50 of whom will be admitted. You've just accepted three in a row, and now you might be inclined to think that the next two are unlikely to deserve admission. You might even evaluate their applications with that skeptical thought in mind.

An op-ed by Noah Feldman. The Affordable Care Act challenge that the U.S. Supreme Court will consider later this year, and presumably decide in June, could be the biggest case of the year. It will definitely be the most important statutory interpretation case in a long time. It's tempting, therefore, to depict it as a battle royale between the two leading theories of statutory interpretation that have been fighting it out at the court for the last two decades, known to cognoscenti as textualism and purposivism. I've certainly tended to see it that way, and in a column this week I suggested that two textualist statutory interpretation decisions written by Justice Antonin Scalia might provide a preview of what's coming.

Activists sparred Saturday with the mayor and police chief of Ferguson, Mo., during a Harvard Law School event exploring, among other topics, the shooting of Michael Brown, an unarmed black man killed by one of the city’s police officers in August. The event, sponsored by the school’s Charles Hamilton Houston Institute For Race and Justice, came after decisions not to indict police officers in the deaths of Brown and another unarmed black man, Eric Garner, in New York City...But panelist Derecka Purnell [`17], a Harvard Law School student who protested in Missouri, said she was uncomfortable sitting next to people “who are responsible for the guns that were pointed in my face.”

An op-ed by Derecka Purnell [`17].At a recent protest in Boston, a middle-aged woman angrily chanted at four black men: “Go to school! Get a job!” These men were my fellow Harvard Law School classmates, serving as legal observers to protect the rights of the protesters. Her thinking was an extreme representation of what many others believe: Young people are aimlessly “die-ing in” or stopping traffic without goals, strategies, preparation or even stakes. But young people are working and organizing.

An op-ed by Noah Feldman. The Washington Redskins finished the season well out of the National Football League playoffs -- but the court case involving the trademark on the team's name and logo won't go away. The Department of Justice has announced that it will intervene in the latest iteration of the suit, in which the Redskins are challenging a decision by the U.S. Patent and Trademark Office denying them trademark registration. The Justice Department's intervention is significant. The government is defending the constitutionality of the provision of the Lanham Act that denies registration for disparaging marks. That suggests the Justice Department thinks the arguments for the unconstitutionality of the law are serious enough to warrant a response. In turn, this raises a question about the meaning of the First Amendment and its application to racial hate speech -- a topic of global significance after the Charlie Hebdo attack last week in Paris.

An op-ed by Susan Crawford. I want you to remember President Obama as he appeared Wednesday in Cedar Rapids, Iowa. He was loose, lanky, delighted; he was on his game. This was his FDR moment....President Obama’s Wednesday announcement about community fiber was the most American of statements, made in the most American of places. He had a message to deliver about opportunity, choice and freedom, for every American. This is a key moment for this president, for his legacy and for our understanding of ourselves as a country.

This session, the Connecticut General Assembly will weigh a bill that would allow people to make food in their homes for commercial sale, dubbed "cottage food" production..."Allowing for cottage food operations is an easy way that states can support the development of small businesses and increase the availability of local products within their borders," wrote Alli Condra, clinical fellow in the Harvard Law School Food Law and Policy Clinic. "The fact that 42 states allow some sort of in-home processing of non-potentially hazardous foods demonstrates that these types of operations are important and valuable."

A U.S. Securities and Exchange Commission member’s dispute with a prominent Harvard Law School professor has turned into something of a gang fight, academy style. More than 30 law professors from universities such as Harvard, Columbia and Stanford are calling on SEC Commissioner Daniel Gallagher to withdraw his paper accusing Harvard’s Shareholder Rights Project of filing misleading proposals in corporate elections. The project, led by Lucian Bebchuk, has sought annual elections for boards of directors. “We are especially concerned that a sitting SEC commissioner has chosen to issue such allegations without support from a prior investigation by the SEC staff and without due process of law,” the professors wrote in a paper posted today on Harvard Law School’s blog on corporate governance and financial regulation.

An op-ed by Noah Feldman. Moones Mellouli is getting his day before the U.S. Supreme Court -- and the issue, believe it or not, is a sock. Specifically, the sock in which Mellouli was holding four tabs of Adderall after he was arrested and accused of driving under the influence. Mellouli, a Tunisia native who had become a permanent U.S. resident, pleaded guilty to misdemeanor possession of drug paraphernalia: not a bong or a works but a sock. Then the Department of Homeland Security went to court to get him deported.

Mancini lay much of the responsibility for community mistrust of police with the media, which, he said in response to one woman’s question about officers who violate civilians’ constitutional rights, “will always focus on the bad apple..." That comment did not sit well with several of those in attendance. “In fact, the officers do violate the Constitution,” retorted Aaron Bray [`16], a Harvard Law School student who grew up in the Bowdoin/Geneva neighborhood. “Any young man who grew up in this neighborhood knows that, so don’t give me that line about bad apples.”

...One activist, Susan Crawford, a visiting professor at Harvard Law School, wrote this month that sponsored data is “pernicious; it’s dangerous; it’s malignant.” And, she argued, it ought to be outlawed. At least one nation, Chile, has done just that. Crawford fears that if Facebook, for instance, pays for your data whenever you’re logged onto it, you may end up spending most of your wireless online time on Facebook. Soon all the big boys — Google, Twitter, Pinterest — will do the same. Next thing you know, any Internet service hoping to build a mobile audience must buy a sponsorship. Companies that can’t pay are frozen out.

Only at the level of philosophy, it seems. It’s as if everywhere at once, innocents are cannon fodder for ideology and power. Do our lives matter? For local Nigerian immigrants, that more brutally personal question is especially pressing lately...“The people I speak to back home feel hopeless and helpless,” said Aminu Gamawa, an international lawyer and activist who is working on a doctorate at Harvard Law School. “They feel abandoned, first by our government, second by the media, and third by the international community.” Gamawa is frustrated that “people are discussing Paris over dinner and breakfast, but only a few talk about Boko Haram. . . . It is painful to see the double standard.”

An op-ed by Alan Dershowitz. Imagine the following situation: You’re a 76-year-old man, happily married for nearly 30 years, with three children and two grandchildren. You’ve recently retired after 50 years of teaching at Harvard Law School. You have an unblemished personal record, though your legal and political views are controversial. You wake up on the day before New Year’s Eve to learn that two lawyers have filed a legal document that, in passing, asserts that 15 years ago you had sex on numerous occasions and in numerous locations with an underage female. The accusation doesn’t mention the alleged victim’s name—she’s referred to as Jane Doe #3, and the court document includes no affidavit by her...Welcome to the Kafkaesque world of American justice. But Kafka was writing fiction when he described the ordeal faced by Josef K in his famous novel, “The Trial.” What I have described is real. It is happening to me right now. And if it can happen to me, it can happen to anyone.