Media Mentions

An op-ed by Cass R. Sunstein. Both sides in the debate over President Barack Obama's immigration reforms have offered simple legal arguments. According to critics, the president is acting unlawfully by defying acts of Congress and arrogating the authority of a king. According to supporters, Obama is acting within his broad discretion as chief executive to deport those he thinks should be deported and let others stay in the U.S. But the administration's own legal analysis is much subtler and more precise. The Justice Department's Office of Legal Counsel argues that the Department of Homeland Security does indeed have the authority to “prioritize” the removal of certain categories of undocumented aliens, and it can create a “deferred-action program” to let some people remain in the U.S. for a specified period. But it has to be careful about how it decides who gets to stay.

An op-ed by Noah Feldman. When was the last time you heard of a grand jury decision causing a riot? Well … never. That's because grand juries are obscure relics of past practice, not designed to bear the full weight of a politically and symbolically important decision like the nonprosecution of police officer Darren Wilson for the death of Michael Brown in Ferguson, Missouri. The decision by St. Louis County Chief Prosecutor Robert McCulloch to put the issue neutrally before the grand jury was intended to create a sense of public legitimacy for whatever result followed, and also no doubt to deflect blame from the prosecutor's own exercise of discretion. It failed on both counts -- and with good reason.

Emphasizing the importance for host nations to develop infrastructure, services, and policy that last after the conclusion of major sporting events, Brazilian Vice-Minister of Sports Luis Fernandes discussed Brazil’s preparation for both the 2014 FIFA World Cup and the 2016 Summer Olympics at a panel on Monday evening. Held at the Law School and moderated by Law School professor Charles R. Nesson ’60, the panel opened with Nesson noting that the event was relevant to Boston’s current bid to host the upcoming Olympic Games in 2024.

An op-ed by Nancy Gertner. It isn’t surprising that a grand jury on Monday ruled against indicting police officer Darren Wilson in the fatal shooting of Michael Brown last August in Ferguson, Mo. Although many are saying that the decision may have to do with race, it is more likely that Wilson is not facing charges because courts have decimated the law that holds officers accountable for excessive force, rulings that make incidents similar to Ferguson all the more likely. For example, two months before the Brown shooting, the US Supreme Court ruled in Plumhoff v. Rickard that even egregious police conduct is not “excessive force” in violation of the Constitution.

An op-ed by Johanna Wald. For weeks this summer, after black teenager Michael Brown was gunned down by Darren Wilson, a white police officer in Ferguson, Mo., the nation was witness to many disturbing images. We saw police in riot gear jumping out of armored trucks as if they were an occupying army, citizens being tear gassed in their own yards, and community members gasping in horror and disbelief. But the image that is seared forever in my consciousness is of the lifeless body of Michael Brown, lying on the ground in the street, alone, uncovered, in the middle of the afternoon, with blood spilling from his head. He was left by the police to lie like that for four hours. No grand jury decision not to indict Darren Wilson can erase that image. No amount of justifications or rationalizations by the Ferguson Police Department about procedures or protocols will ever convince me that they would have allowed a white body to linger on the street like that. That image gave the permanent lie to any notions that we have somehow transformed into a “post-racial” society. It powerfully conveyed what those of us who examine the research on a regular basis have long acknowledged. In this country, we have two systems of justice: one for White America and one for Black America, particularly for Young Black Male America.

The Constitution is not a math problem, but numbers can play a role in the Supreme Court’s calculations. When the court struck down bans on interracial marriage in 1967, such unions were still illegal in 16 states. When the court struck down laws making gay sex a crime in 2003, 13 states still had antisodomy measures. Should the court take up the question of same-sex marriage this term or next, as it seems likely to, the unions will be against the law in no more than 15 states. ...But the comparisons are not completely airtight, said Michael J. Klarman, a legal historian at Harvard Law School. The decision on interracial marriage in Loving v. Virginia, he said, followed democratic consensus. State legislatures, not judges, had done almost all of the work in driving down the number of bans to 16.

An op-ed by Cass R. Sunstein. “Global warming strikes America! Brrrr!” So tweeted Missouri Representative Vicky Hartzler last week, as much of the U.S. experienced extreme cold. (In Buffalo, it was a full Snowpocalypse.) Do frigid temperatures give you doubts about global warming? You wouldn't be alone. When people think the day’s weather is exceptionally cold, research shows, they're less likely to be concerned about global warming. And when the day seems unusually hot, concern jumps.

Harvard divestment advocates caught national attention when they took their fight to court last week, but legal experts say the case’s claims may ultimately be too tenuous to be heard....Responding to legal experts arguments, Alice M. Cherry [`16], a plaintiff and second-year student at the Law School, maintained on Sunday that the case was intended to expand upon tort precedent. “We are arguing for an expansion of the law,” she said. “There is a long history in tort law of expansion of liability...to address new social problems.”

Amid the quarterly reports of law firm performance and rankings in various league tables, three vaunted lawyers are calling on firms, in-house counsel and law schools to re-evaluate their priorities and obligations. Ben Heineman Jr., the former general counsel of General Electric Co.; William Lee, a partner at Wilmer Cutler Pickering Hale & Dorr LLP; and David Wilkins, a professor at Harvard Law School, have co-written “Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century.” The essay, prompted by a discussion with Harvard Dean Martha Minow, is intended to address the current state of legal practice and education. The three write that there is “widespread agreement that the legal profession is in a period of stress and transition; its economic models are under duress; the concepts of its professional uniqueness are narrow and outdated; and, as a result, its ethical imperatives are weakened and their sources ill-defined.”

Contrary to claims that activism hurts a company’s long term outlook, Lucian Bebchuk, speaking at the Federalist Society Conference in Washington DC, said activism actually helps. Bebchuk, author of a forthcoming study with Alon Brav, and Wei Jiang titled “The Long-Term Effects of Hedge Fund Activism,” due out in June 2015 from the Columbia law review, says the claims by myopic activists are just wrong, specifically pointing out one activist critic by name – Marty Lipton.

An article by Sean Mirski `15. On July 1, 2014, Japanese prime minister Shinzo Abe and his Cabinet engaged in a dramatic constitutional reinterpretation. Traditionally, Japan’s constitution had been read as imposing pacifism on the country: Japan could not engage in military force except in absolute self-defense. But under Abe’s new reading, the constitution would grant Japan the right to engage in collective self-defense—in other words, to come to the aid of allied forces under attack even if Japan itself is not targeted. This update may seem minor when set alongside the robust military campaigns launched by other nations like the United States. But for Japan, Abe’s reinterpretation represents a significant shift away from the island-nation’s postwar pacifism—a shift that will have important and largely beneficial consequences for the U.S.-Japanese alliance. By the end of the year, the two states will release revised Guidelines for Defense Cooperation, which will build in part on Prime Minister Abe’s constitutional reinterpretation and update the framework that governs the U.S.-Japanese alliance in times of both peace and war.

Noah Feldman discusses Obama's anticipated executive action on immigration reform. Then we talk to you to see what you think.

Once every 90 seconds, Google Inc. receives an appeal from someone seeking to keep part of their personal history from showing up on an Internet search. In the so-called “right to be forgotten” decision earlier this year, the European Court of Justice ruled that search engines with European domains – such as Google, Bing, and Yahoo – must allow EU and European Economic Area citizens the ability to remove links to personal information that is “inadequate, irrelevant, or no longer relevant."...This all points to a new normal for the way global Internet companies operate in Europe. Indeed, says Adam Holland, project coordinator at the Berkman Center for Internet and Society at Harvard Law School, the right to be forgotten reflects starkly different notions of privacy in Europe and the US. “In the US, we value freedom of speech and freedom of info more highly than necessarily moral rights to that information,” says Mr. Holland. “It is a moral issue, not necessarily a legislative issue. The EU places a higher precedent on the rights of the person.”

President Barack Obama’s announced immigration executive actions are lawful, a group of ten prominent legal scholars wrote in a joint letter shared by the White House with TIME. Pushing back on Republicans who have blasted Obama’s action as unconstitutional and unlawful, the signatories include Columbia University President Lee Bollinger, Harvard Law School Professor Laurence Tribe, conservative legal scholar Eric Posner, and former Yale Law School Dean and former State Department Legal Advisor Harold Hongju Koh. “While we differ among ourselves on many issues relating to Presidential power and immigration policy, we are all of the view that these actions are lawful,” the professors wrote. “They are exercises of prosecutorial discretion that are consistent with governing law and with the policies that Congress has expressed in the statutes that it has enacted.”

An op-ed by Michael Shammas '16. In 1603, Sir Walter Raleigh was convicted of treason in a sham of a trial. Raleigh had no knowledge of the charges' substance until the morning of the tribunal, when he learned he was accused, on hearsay alone, of plotting to enthrone Lady Arabella Stuart. Years later, as a partial result of his conviction, resigned to the great injustice done to both his body and his name by the tribunal of 1603, Raleigh placed his head on the block, refused a blindfold and -- after the reluctant headsman delayed -- implored, "Strike man, strike!" How did this murder disguised as justice occur? The answer is simple: an inexcusable absence of due process. I include this (admittedly drastic) example because outrage at the great injustice done to Raleigh in this witch hunt called a "trial," in this persecution disguised as prosecution, contributed to the development of numerous facets of what we today call due process. A recognition of the protracted period it took for such crucial and hard-won protections to develop is, partly, what led 28 Harvard Law professors to criticize Harvard's new sexual assault policy for lacking "the most basic elements of fairness and due process."

Right now in Massachusetts, for-profit colleges are facing big questions, new regulations and lawsuits. The state attorney general is investigating about 12 of them — amid charges of low graduation rates and deceptive sales tactics that leave too many students mired in debt...But Mike DiGiacomo’s story is just one of many that raises a lot of questions about the for-profit college industry, at a time when it’s facing a lot scrutiny over high rates of debt and low rates of graduation and employment. Guests...Toby Merrill, attorney and senior clinical fellow at the predatory lending practice at the legal services center of Harvard Law School.

An article by Michael Zuckerman `17. Katlyn Beggs, a 2009 alum of the California School of Culinary Arts, calls herself one of the lucky ones: After graduating, she got a job. How did she get so lucky? Partly by having worked in the food industry—but also by not telling her future boss that she’d gone to CSCA...Starting in 2008, CSCA graduates began filing lawsuits against their former culinary school, alleging fraudulent and unfair business practices. By 2012, five of their complaints had been combined into one consolidated and amended complaint, filed in Los Angeles County Superior Court...The class action addresses this problem by letting one voice speak for all. And, as Harvard law professor William B. Rubenstein has pointed out, the benefits don’t just accrue to the plaintiffs: Just by looming as a means of enforcement, the class action produces a positive externality for society by keeping companies honest. “The mechanism,” Rubenstein writes, “makes possible the production of a good that would not otherwise be produced. That good is a lawsuit.”

Third-year Harvard Law School students clashed in the high drama of the venerable Ames Moot Court Competition on Tuesday under the jurisdiction of visiting federal judges, including one of the nation’s foremost legal authorities, U.S. Supreme Court Associate Justice Antonin Scalia. “It was fully as good as one would expect at Harvard Law School,” a pleased Scalia said during his final comments...The judges didn’t render a decision, but named Kevin Neylan the best oralist, awarded the petitioning team the best-brief award, and named the respondents the best overall team. The petitioner’s team was made up of Jennifer Garnett, Jordan Moran, Ivan Panchenko, and Tom Ryan, along with oralists Ezra Marcus and Katie McCarthy. The respondent’s team was made up of Jay Cohen, Cody Gray, Spencer Haught, and Christina Martinez, along with oralists Sean Mirski and Neylan.

When most people hear the word “tourism,” they immediately think of flocking to the sandy beaches of the Caribbean or exploring museums in a European city. For Harvard Law School graduate I. Glenn Cohen, the word has a different implication: travelling to another country for medical treatment. The now-Law School professor discussed this phenomenon, called medical tourism, and his new book, “Patients with Passports: Medical Tourism, Law, and Ethics,” on Wednesday afternoon. Cohen was joined by three other panelists—Kennedy School of Government professor Amitabh Chandra, School of Public Health professor Alicia Ely Yamin, and Medical School professor Nir Eyal—for a discussion of medical tourism and its implications.

An op-ed by Mark Roe. At a closed-door conference attended by senior bankers, regulators, and some academics, Federal Reserve Governor Daniel Tarullo and Federal Reserve Bank of New York President William Dudley used their bully pulpit to do something unexpected. Instead of focusing on how to bolster bank stability – channeling more capital toward the largest institutions, curbing their riskiest activities, and determining how to manage a failing bank without bailing it out – the officials discussed the bankers themselves.

In her latest paper, Harvard Law School professor Elizabeth Bartholet does her best to dismember the widely popular child welfare strategy known as Differential Response, or simply DR...But as controversial as her ideas may be, Bartholet’s “Differential Response: A Dangerous Experiment in Child Welfare” is a notable contribution to the growing debate around DR, and the chronic battle fought in a resource-starved child welfare field over family preservation and child safety.