Media Mentions

An op-ed by Noah Feldman. The worst fight between justices in the modern history of the U.S. Supreme Court grew out of a dispute about whether coal miners should be paid for the time it took them to travel thousands of feet up and down a mine shaft to do their jobs. The bitter interpersonal war it generated between Justice Hugo Black and Justice Robert Jackson started in 1945 and reached its climax in 1946, when their dispute hit newspapers' front pages and cost Jackson the chief justiceship. So you'd think the question of what activities count as part of the workday would've been solved by now, 70 years later. You'd be wrong. In Integrity Staffing Solutions v. Busk, the Supreme Court is hearing arguments in a dispute between an Amazon.com contractor and its employees about whether workers should be paid for time spent going through security checks to make sure they haven't stolen from the warehouse on the way home.

An op-ed by Susan Crawford. Three years ago, cable titan John Malone -- chairman of Liberty Global, the largest cable company in the world -- said that when it comes to high-capacity data connections in the U.S., "cable’s pretty much a monopoly now." Last month, Federal Communications Commission Chairman Tom Wheeler proved Malone's point: For high-capacity wired data connections to the Internet, Wheeler said that more than 80 percent of Americans have just one choice -- their local cable company. The cable companies long ago divided the country among themselves, and it's about to get worse. A proposed $45 billion merger between Comcast and Time Warner Cable would strengthen the industry's near-monopolistic power. If the merger goes through, the chances of fiber competition emerging to challenge cable's dominance become even lower than they already are.

While students active in the queer community said that they welcomed the Supreme Court’s decision Monday to let lower court judgments allowing gay marriage stand, some said that they worried that the issue of same-sex marriage overshadows other concerns of the BGLTQ community...Harvard Law School professor Michael J. Klarman said that he was surprised that the Court opted to uphold the lower court rulings rather than hear the case. He added that public support for same-sex marriage has been on the rise in recent years. “The future seems pretty clearly inevitable, in that [public] opinion is going to move in the direction of gay marriage even if the Court doesn’t intervene,” Klarman said.

American public schools rely on a funding system that is rife with inequalities, experts said during a panel at the Graduate School of Education on Thursday. “Our goal is easy to articulate and hard to get there. It is to make sure every child in this country has access to world-class education. Race, socioeconomic status, zip code, and neighborhood shouldn’t matter,” said forum moderator Susan E. Eaton, research director at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, quoting U.S. Secretary of Education Arne S. Duncan '86.

When is a war not a war? Does it matter, when a bomb is dropped or a missile launched, whether it’s called “counterterrorism,” or “armed conflict,” or “hostilities”?...The administration has also said its actions are a legal response to the threat because Syria is "unwilling or unable" to fight the Islamic State itself. Naz Modirzadeh, founding director of the Harvard Law School Program on International Law and Armed Conflict, called that concept an example of "folk international law." Established law, she wrote Thursday on the Lawfare blog, includes no such distinction for violations of sovereignty.

An op-ed by Noah Feldman. Class action lawsuits are big business. The U.S. Chamber of Commerce -- admittedly, not the most objective source -- estimates that securities class actions alone cost shareholders $39 billion a year. When you add in all other class actions -- for accidents, accounting errors, you name it -- you can understand why potential corporate defendants as well as plaintiffs’ lawyers fight tooth and nail over every inch of the legal terrain. When the U.S. Supreme Court takes up an important question of how these class actions will proceed, as it is doing in the case of Dart Cherokee Basin Operating Company LLC v. Owens, it's worth taking notice of what the court is doing -- and why.

There's a "food fight" going on in Colorado, one that will appear on the ballot that gets mailed to you next week. Prop 105, one of four statewide ballot questions, would require labeling of some genetically modified food...Another expert told us that Colorado could run into trouble if it wished to require GMO labels on food products merely passing through Colorado on the way from one state to another, but that the state could require GMO labels on all foods produced here, regardless of whether it was intended for export out of Colorado. "The products are produced by and in Colorado and I know of no principle of federal law that would preclude such a law," replied Jacob Gerson, a professor of law with Harvard.

Harvard Law School Dean Martha Minow spoke at the Court of Appeals in Albany Monday during the fifth annual hearing on civil legal services. It was the last of four hearings that started in September to highlight the civil legal needs of low-income New Yorkers. Minow advised New York officials to consider public libraries as potential places to dispense civil legal services.

Tens of thousands of mental patients and troops unknowingly became malaria test subjects during the 1940s — part of a secret federal rush to cure a dread disease and win a world war, according to a book published Tuesday that exposes vast, previously unknown breaches of medical ethics...“The Malaria Project” — operating via the same covert White House machinery that drove the Manhattan Project — tasked doctors with removing malaria from naturally exposed U.S. troops then injecting those strains into people with syphilis and schizophrenia, reports author Karen Masterson, who researched files at the National Archives...“There are no easy answers,” agreed I. Glenn Cohen, a Harvard Law School professor specializing in medical ethics. "But in trying to reach an answer on a particular case, here is how I look at it: avoid hindsight bias; determine whether the study violated contemporaneous research ethics rules not whether it offends our current understandings," Cohen said. "In this case, it likely violated even contemporaneous rules."

Last spring, Lawrence Lessig, a fifty-three-year-old Harvard legal theorist who opposes the influence of money in politics, launched a counterintuitive experiment: the Mayday PAC, a political-action committee that would spend millions of dollars in an attempt to elect congressional candidates who are intent on passing campaign-finance reform—and to defeat those who are not. It was a super PAC designed to drive its own species into extinction. Lessig adopted the motto “Embrace the irony.”

An op-ed by Cass R. Sunstein. Remember George Plimpton’s classic book, "Paper Lion"? In the 1960s, Plimpton decided to find out what would happen if an ordinary person tried to play professional football. Amazingly, the Detroit Lions agreed to give him a tryout, allowing him to come to training camp as a third-string quarterback. The result? Disaster...A few days ago, I followed in his footsteps. Not, thank goodness, on the football field. My sport is squash -- played with a racquet and a small ball in an indoor court.

The Supreme Court’s surprising move to pass on deciding whether state prohibitions on same-sex marriage violate the U.S. Constitution may reflect two things about the justices: a natural inclination for incremental steps and a worry on the part of conservatives that the battle — for now — appears lost...“I’m astonished,” said Richard Fallon, a Harvard law professor who is a student of the court. Neither side of the court’s ideological split has enough motive to insist that the issue be taken up now, he believes. “There are some justices who aren’t in any hurry to take this, and four who are worried they are going to lose,” Fallon said.

If we have kill switches on consumer products, why don't we have them on military weaponry? Jonathan Zittrain is the Director of the Berkman Center for Internet & Society, and he argues we should have a way to disable dangerous weapons at a distance.

An op-ed by Noah Feldman. Back in the dark ages in America, coffee didn’t come from sleek, fast Italian machines: it dripped, one painful drop at a time, through a filter into a waiting pot. This, my best-beloved, was called “percolation” -- and it provides the central metaphor for how the U.S. Supreme Court considers whether to take controversial cases. Today's decision by the justices to deny seven petitions asking them to decide whether there is a constitutional right to same-sex marriage was a classic example. Impervious to the pressures of the news media or the gay-rights movement, the justices decided to let the issue percolate a while longer.

An op-ed by Cass R. Sunstein. Many people are stunned by the U.S. Supreme Court’s refusal to review any of the recent lower-court decisions requiring states to recognize same-sex marriages. They shouldn’t be. The court’s silence is a fresh tribute to what Yale law professor Alexander Bickel, writing in the early 1960s, called “the passive virtues.” For the Supreme Court, not to decide is often the best course, especially when the nation is sharply divided.

Translated from German: Mark Roe, Professor at the Harvard Law School in Cambridge, Massachusetts and Michael Troege Professor at ESCP Europe in Paris, … want to tax banks' debt [instead of profits on their equity]. Equity capital thus becomes more attractive as an alternative form of finance. The idea is that as a result banks would raise less debt and finance more with equity [and be safer]. In return, the corporate taxes on bank profits should decrease or be completely eliminated.”

For Alec Karakatsanis and Phil Telfeyan winning cases means getting justice for clients unable to fight for themselves. Clients like the hundreds of people locked up in a Montgomery, Ala., jail because they were too poor to pay their traffic tickets. Equal Justice Under Law, the organization founded by the two Harvard Law alums to provide pro bono legal services, filed a federal lawsuit in March arguing that Montgomery’s system of requiring people who couldn’t pay fines to sit out their debts behind bars at a rate of $50 a day was unconstitutional...Without the seed grant that Karakatsanis and Telfeyan won from Harvard Law’s Public Service Venture Fund in 2013, some of those inmates might still be in jail. The two were the first to benefit from a program designed to help Harvard Law graduates found startups that target unmet legal needs at a time when other sources of funding were drastically reduced by a recession and years of slower economic growth...“We have lots of wonderful students who are willing to forego the big salaries to work longer and take more risks about getting a job,” said Alexa Shabecoff, Harvard’s assistant dean of public service who directs the venture fund. But those students needed “a light at the end of the tunnel – a job or a way to do the work they were passionate about.”

...Before the halt, Guatemala was one of the most popular nations for Americans looking to adopt, its system sending 4,000 children a year to this country. Now, some experts say, the closure of that adoption pipeline is contributing to the flow of unaccompanied children who have poured into the United States from Central America over the past year...Fueling antiadoption sentiment in Guatemala is “a kind of nationalist attitude that says, 'We don't need this former imperialist power (America) ripping us off again,’” said Elizabeth Bartholet, a Harvard law professor and international adoption expert.

Joshua Matz didn't bother waiting to write about the Supreme Court until he went to work there. He teamed with a renowned Harvard law professor to finish a book about the court before he started his year as a law clerk to Justice Anthony Kennedy...In "Uncertain Justice: The Roberts Court and the Constitution," Matz and Harvard Law professor Laurence Tribe argue that on a range of big issues, political gridlock and societal change have increased the court's influence. ..."He was impressive enough that I felt I should call Justice Kennedy, not just write a letter, but call him and emphasize what an unusual catch Joshua would be," Tribe said in a telephone interview.

One federal judge has allowed a voter ID law to take effect in Wisconsin. Another is now contemplating whether to do the same in Texas. Defenders of these laws, which exist in some form in 34 states, insist that requiring people to show government-issued identification at the polls will reduce fraud—and that it will do so without imposing unfair burdens or discouraging people from voting. In North Carolina, for example, Republican Governor Pat McCrory wrote an op-ed boasting that the measures fight fraud “at no cost” to voters. ...But in 2008, when the Court approved Voter ID laws, the Court left open the possibility of new challenges if plaintiffs can demonstrate the laws impose a burden on would-be voters. There are now good reasons to think the laws do exactly that. One reason is a report, published over the summer, from Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice. Researchers there complied published articles and legal testimony, in order to calculate the cost of of obtaining a government-issued identification. They included everything from the cost of waiting to the cost of traveling and obtaining documentation. Their conclusion? The costs can range anywhere from $75 to $400 per person. The study is not a comprehensive, since it examines evidence from just three states— Texas, Pennsylvania and South Carolina, which had its law blocked by the U.S. Justice Department but upheld by a District Court.

If the last term is any guide, the dominance of veteran advocates and their law firms at the lectern of the U.S. Supreme Court will only continue when the court returns Oct. 6. In the term that ended in June, the justices decided 67 argued cases, less than half the caseload they handled in 1990. Three firms argued seven cases each and two argued in six — meaning that just five firms fielded lawyers on one side or the other in roughly half of the court's oral arguments. "That is truly remarkable," Harvard Law School professor Richard Lazarus said about the numbers. Lazarus has written extensively about the ­development of the elite Supreme Court bar. Less than 30 years ago, the late Chief Justice William Rehnquist said there was no Supreme Court bar as such.