Media Mentions

An op-ed by Mark Roe. Detroit’s bankruptcy offers a cautionary tale for responsible municipal officials on how, and how not to, manage their budget. The pressure from pension obligations was a big factor in the Detroit bankruptcy. The simple lesson focuses on how municipalities save up to pay pensions to their retired police, firefighters, and other municipal employees. The city sets aside funds for the future retirement payments and expects earnings from the investments to help pay the pensions.

An op-ed by Noah Feldman. Finally, after intense negotiation between the Barack Obama administration and senators including drone-strike stalwart Rand Paul, the government released the much discussed memo justifying the killing of Anwar al-Awlaki, which was written by David Barron when he was the acting head of the Office of Legal Counsel. And the revelation is … nothing, or near enough to it. The reason isn’t that the memo is benign. It’s that it’s crucially incomplete. The administration redacted the important passages of the memo referring to Awlaki’s due process rights as a U.S. citizen. And it referred to another memo, also by Barron, that dealt with the constitutional issues. That memo is -- you guessed it -- still secret.

An op-ed by Laurence H. Tribe. We know, or at least think we know, how Supreme Court terms are supposed to end: with a string of high-profile, divided decisions. That's certainly what happened last term. Ten of the court’s final 12 decisions of the term featured dissenting opinions—including 5–4 decisions (along what some describe as “party lines”) about gay marriage, the Voting Rights Act, and employment discrimination. This term, however, something very different is happening. With only two cases remaining to be handed down, a trend has already appeared: This is the term for high-profile unanimous decisions.

An op-ed by Laurence H. Tribe. …Wednesday’s decision—remarkable in its unanimity—was only superficially about cellphones. As Chief Justice John Roberts said, the term cellphone is “itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” He added, “They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

The Supreme Court, offering a sweeping endorsement of Americans’ right to digital privacy, unanimously declared Wednesday that police must obtain a warrant before searching a suspect’s cellphone….“This is a very clear ruling about cellphone searches incident to an arrest. I would not extrapolate from it,” said Charles Fried, a Harvard law professor who served as solicitor general under President Reagan. Fried pointed to a separate concurring opinion written by Justice Samuel A. Alito Jr., who invites Congress to weigh in and enact legislation that draws “reasonable distinctions based on categories of information.” “Alito generally has been rather skeptical about honoring the concerns of the privacy Taliban,” Fried said.

The U.S. Supreme Court gave the Environmental Protection Agency the green light to regulate greenhouse gases that are emitted from new and modified utility plants and factories on Monday…"This was kind of reminiscent of Macbeth's final soliloquy — a lot of sound and fury signifying nothing," said Harvard Law professor Richard Lazarus, who specializes in environmental law. "The EPA's authority and ability to use the Clean Air Act to address climate change is essentially unchanged after today."

em>An op-ed by Noah Feldman. In a decision that was a legal defeat for the Barack Obama administration but may well be a practical victory, the U.S. Supreme Court’s conservative justices voted 5-4 to block the Environmental Protection Agency from a creative-yet-practical interpretation of the Clean Air Act that would have let the EPA significantly increase its regulation of greenhouse gases. In an opinion by Justice Antonin Scalia, the conservatives nevertheless threw the EPA a bone, allowing regulation of greenhouse gases from plants that already emitted significant other pollutants.

An op-ed by Cass R. Sunstein. Yesterday’s U.S. Supreme Court decision involving the Environmental Protection Agency’s authority to regulate greenhouse gases was generally a big victory for the Barack Obama administration. But the court’s opinion contains a poison pill, one that lawyers will undoubtedly invoke in future cases involving the Affordable Care Act. While the decision, written by Justice Antonin Scalia, largely upheld the EPA’s authority, it invalidated the agency’s decision to exempt small emitters and thus “tailor” its greenhouse-gas regulations to allow greater flexibility. The text of the Clean Air Act seems to prohibit the EPA from creating such exemptions, but there are millions of small emitters, and the EPA invoked the idea of “administrative necessity” to exempt them.

In a big win for environmentalists, the Supreme Court on Monday effectively endorsed the Obama administration’s efforts to regulate greenhouse gas emissions from sources like power plants, even as it criticized what it called the administration’s overreaching…The decision, said Richard J. Lazarus, a law professor at Harvard, “gave the agency a tongue-lashing and suggested the potential for some significant limitations on how the agency chooses to exercise its authority in the future.”… That statement was “a warning shot,” said Jody Freeman, a law professor at Harvard. “It suggests that the courts will look skeptically at assertions of authority that are very new and very far-reaching.”

The U.S. Supreme Court has always been riven and 5-4 rulings under Chief Justice John G. Roberts on issues including prayers at government meetings and federal recognition of same-sex marriage isn’t a new phenomenon, high-court scholar Laurence Tribe said in an interview. Roberts’s predecessors heading the court managed to persuade their colleagues more often to hide those divisions, Tribe said in a Bloomberg Radio interview today. Tribe is a Harvard University law professor and author of “Uncertain Justice,” a book examining the work of the court under Roberts.

Picking up a book entitled Uncertain Justice: The Roberts Court and the Constitution, it is reasonable to assume that the book is critical: the title promises to damn the Court as not reliable in delivering justice, or, at the very least, as a little wobbly and tentative when it does justice. It’s a tantalizing title, since there is nothing more appealing to legal pundits (and by extension book publishers) than a scathing critique of a court that has lost its way. The fact that one of the authors, Professor Laurence Tribe of Harvard Law School, is among the nation’s most celebrated legal scholars raises the stakes that much more.

An op-ed by Noah Feldman. Executive power lost the battle but won its war with the Senate over recess appointments in an important case decided today by the U.S. Supreme Court. The court held that the president may make recess appointments during both breaks within sessions and breaks between sections, for offices that come open either before or during these recesses. This part was the win for executive power. It also said that breaks within sessions of between three and 10 days are presumptively not recesses -- and therefore canceled the National Labor Relations Board appointments that Barack Obama had made and that were challenged in this case. This was the battle at hand, and the administration lost it.

An op-ed by Noah Feldman. It’s becoming a June ritual: Chief Justice John Roberts joins the liberals to issue a moderate, centrist opinion, and leaves his erstwhile conservative admirers flailing. Roberts’s latest foray into moderation comes in today’s free-speech case involving a 35-foot no-access zone around hospitals or abortion clinics opposed by Massachusetts law.

…On Thursday, the Supreme Court unanimously overturned a Massachusetts law creating buffer zones around the state’s abortion clinics…“It was a bad law,” said Harvard law professor Mark Tushnet. “It would be astonishing if any lawyer won this case.” Tushnet credited the Massachusetts attorney general’s office with winning a small tactical victory, even in defeat. A majority of the justices, he noted, found that the law did not discriminate against antiabortion protesters for the content of their speech. Instead, the justices found, it impinged on the rights of everyone outside the clinics, whatever their views. Tushnet said the finding, that the buffer zone law was “content-neutral,” could provide an opening for new, more limited measures designed to protect clinic-goers and employees…Nancy Gertner, a former US District Court judge and now a law professor at Harvard University, said she is not surprised that the two unanimous decisions did not produce a simple “bad week for Coakley” narrative. “You can’t begrudge the attorney general of the state defending a statute that supports the right to choose,” she said.

An op-ed by Noah Feldman. Dilemma for the day: You run the pension plan for your own company -- and as an insider, you know the company’s stock is seriously overvalued. What are you supposed to do? You can’t sell without violating insider-trading laws. But you’re also a fiduciary of the plan, so if you don’t sell, you’re violating your responsibilities under the Employee Retirement Income Security Act, which is, by the way, your bible. You are, ahem, flummoxed either way. Today, the U.S. Supreme Court tried to help out pension plan decision-makers who are also corporate insiders. Its answer was a little complicated but, in essence, the court said: “Don’t break the law by selling; don’t buy any more of the stock; and we’ll try to cover you if you get sued.”

An op-ed by Susan Crawford.A group of Democratic lawmakers sent a letter to the Federal Communications Commission today, demanding it do everything in its power to let cities build competitive fiber networks. It's the next big fight in telecom policy -- and the FCC is going to need all the help it can get.

An op-ed by Noah Feldman. Sometimes the law is an ass -- but not, apparently, when it comes to Aereo, the cable-television-to-your-computer service that was designed to save you money by exploiting a loophole in the copyright laws. The U.S. Supreme Court closed the loophole today -- and with it shut down Aereo. This was a victory for the cable companies, to be sure. But more important, it should send a message to anyone who wants to start a company based on an innovation that means nothing in the real world.

Imagine that you are a diabetic. Except you can’t speak English, don’t read, and don’t have any food in the cupboard. It’s a scenario likely to end in an emergency room visit, and is a predicament that Massachusetts-based Community Servings, and more recently Harvard Law’s Center for Health Law and Policy Innovation, is seeking to alleviate. The two organizations have partnered together in a recently released study to prove why food is medicine, and to encourage insurance providers and hospitals to help pay for medically tailored meals.

Why the hell is Eric Holder still around? That’s a question many of Barack Obama’s political advisers have asked at various points throughout Holder’s tumultuous five years at the helm of the Justice Department...“He’s a race man,” says Charles Ogletree, a longtime friend of Holder’s who taught and mentored Obama and his wife, Michelle, as Harvard Law School students in the 1980s. “He’s gone farther and deeper into some issues of race than the White House would like, but I know he has the president’s well-wishes. It’s clear [Obama and Holder] believe in the same things.”

Hayat Mohamed, a Tougaloo College senior, and Laurel Oldershaw, a 2014 graduate of Brown University, recalled their experiences on each other’s campus…Their conversation, joined by several current and former students from both schools, was part of Freedom 50, a conference on the Tougaloo campus commemorating the 50th anniversary of the bloody 1964 Freedom Summer in Mississippi...Lani Guinier, the Bennett Boskey Professor of Law at Harvard University, presented findings from her current research on meritocracy in academia. She said standardized tests such as the LSAT are placing students who are not from upper middle-class backgrounds at a distinct disadvantage. “It’s what I call a testocracy,” she said noting that 86 percent of the time LSAT scores are “totally irrelevant” in predicting student performance in law school.

A group of leading American constitutional and criminal law scholars and practitioners wrote to US President Obama to urge that he commute American-Israeli spy Jonathan Pollard’s sentence to time served. The letter, dated June 20, was signed by seven professors from Harvard Law School, Obama’s alma mater: Alan M. Dershowitz, Charles J. Ogletree, Jr., Philip B. Heymann, Mary Ann Glendon, Gabriella Blum, Frank I. Michelman and Irwin Cotler (a Canadian law professor emeritus, former justice minister and attorney general of Canada, and a sometimes visiting professor at Harvard).