Media Mentions

An op-ed by Cass R. Sunstein. The U.S. Supreme Court’s historic decision on recess appointments has been treated as a big loss for the Barack Obama administration. That's narrow thinking, in terms of the arc of constitutional law and the system of separation of powers. A look at the actual opinions shows that the most important questions in the case produced a sharp split between Justice Antonin Scalia's approach to constitutional interpretation and that of Justice Stephen Breyer -- long Scalia's principal intellectual adversary. The outcome was an unambiguous victory for Breyer.

An op-ed by Noah Feldman. Chief Justice John Roberts' announcement yesterday that Justice Samuel Alito would deliver both of the Supreme Court final decisions for the term marked a personal triumph for Alito. Thus far, his year at the court had been relatively quiet. He’d for the most part refrained from any dramatic concurrences or dissents -- as though keeping his powder dry for Burwell v. Hobby Lobby, the biggest religious-liberty decision in years.

An op-ed by Noah Feldman. Today, in the U.S. Supreme Court's much-anticipated Hobby Lobby case, swing Justice Anthony Kennedy tried to cut the unborn baby in half. He joined four conservatives, signing a majority opinion written by Justice Samuel Alito stating that closely held corporations are exempt from the Affordable Care Act’s contraceptive mandate.

An op-ed by Noah Feldman. Labor unions lost a legal battle today as the U.S. Supreme Court held, 5-4, that “partial” public employees can’t be required to contribute to unions to cover the cost of collective bargaining. The unions averted, for now, a far greater disaster: the possibility that the court would reverse its precedent and hold that no public employees at all can be made to contribute to unions' collective-bargaining costs. That result could’ve broken many public unions. But the sword of Damocles still hangs over them.

An op-ed by Susan Crawford. We are witnessing another swing of the pendulum in the way the U.S. conducts surveillance. This time, to ensure that National Security Agency programs remain effective without violating people's privacy, Congress needs to ensure that the NSA is subject to better judicial oversight.

About 700,000 of Facebook’s one billion or so users recently served as test subjects in a psychology experiment. Researchers altered the users’ “news feeds” — the news stories and photos that roll across everyone’s Facebook’s home page…The clearly marked ads we understand — nothing hidden about that agenda. But for everything else, “people really are trusting them to be acting more or less in their interests,” said Harvard law professor Jonathan Zittrain…The US does not have anywhere near the same attitude toward regulating the Internet as Europe, and even if we were to adopt tougher restrictions here, Zittrain points out those would likely violate the companies’ First Amendment right to publish what they choose. So Zittrain suggests an alternative — Internet gatekeepers would voluntarily agree to abide by ethical standards similar to what doctors, lawyers and financial planners pledge. Those standards would codified in the companies’ terms of service, so they would be legally bound to follow them.

POISON pills are again being dispensed by corporate America with all the enthusiasm of an exterminator in a rat-infested basement. The metaphorical rodents nowadays are not just hostile bidders—the pests that the poison-pill defence was designed to exterminate, back in the 1980s—but in some cases shareholders simply trying to change the way companies are run…Lucian Bebchuk, a Harvard law professor and campaigner for corporate-governance reforms, calls this “pernicious”: the board would be seeking to stifle legitimate debate among the owners of the company by making it hard to build a majority for change.

The “super PAC to end all super PACs” reached its fund-raising goal in just over two months, but now comes the hard part: winning elections. The Mayday PAC, a project begun May 1 by the Harvard Law School professor Lawrence Lessig, seeks to elect a Congress that will achieve “fundamental reform in the way political campaigns are funded by 2016,” beginning with five pilot races in this year’s House elections. In a July 4 posting to supporters after announcing the PAC reached its goal, Mr. Lessig wrote, “You have guaranteed” change.

An op-ed by Cass R. Sunstein. Consider this hypothesis about modern presidential elections: Whenever American voters elect a new president, they choose someone who is, along a critical dimension, the antithesis of the incumbent. The Incumbent Antithesis hypothesis, as I’ll call it, fits recent history, and it may be correct. If so, it suggests a real challenge for the next Democratic nominee, even if it is Hillary Clinton -- perhaps especially if it is.

Years after the end of the recession, enrollment at the nation’s law schools continues to plummet, a wrenching shift that has forced many schools to cut expenses and raised concerns about the long-term financial prospects of some…At Harvard, applications for the first-year class of about 600 are up significantly this year, a promising sign and part of a national increase among students who score high on the LSAT. “The turn-around at the top of the pool shows that people who are serious about law school are coming back,” said Jessica Soban, assistant dean and chief admissions officer at Harvard Law School.

Celebrated Harvard Law professor Charles Ogletree convened a distinguished panel of speakers to mark the 50th anniversary of the Civil Rights Act.

Governor Deval Patrick and Attorney General Martha Coakley, responding to last week’s Supreme Court decision striking down the state’s buffer zone law, called Wednesday for legislation to crack down on harassment and obstruction outside abortion clinics…But Laurence Tribe, a constitutional law professor at Harvard University, said that any effort to narrowly tailor the legislation could go too far and appear to target antiabortion protesters for the content of their speech. Crafting “a package that is limited to the abortion situation just raises the suspicion that these are all indirect ways of suppressing antiabortion speech,” he said.

Embark, whose software helps colleges to process online applications, has owed graduate and professional schools millions of dollars and misled university officials about why it wasn’t quickly paying up, a former executive of the company is alleging amid an ongoing legal dispute…In February 2013, a graduate program within Harvard Law School asked Embark for $120,000 owed to it since November and December 2012. “Despite the promise of wire transfers by Embark (supposedly made on Feb. 1 initially and then again on Feb. 20), and despite our request for actual confirmation of the transfers, we have not received anything, not even evidence that any of the wire transfers were actually made,” Harvard assistant dean Jeanne Tai wrote in a February 2013 email, which appeared in the court filing. Harvard is not a party to the litigation. Reached last month by phone, Tai said everything had since been squared away.

An op-ed by Laurence H. Tribe. Even as a committed supporter of a woman’s — increasingly imperiled — right to choose, I must acknowledge that the Supreme Court got it right on Thursday. In McCullen v. Coakley, the Court unanimously struck down a Massachusetts law setting a 35-foot buffer zone around abortion clinics. While the buffer zone was enacted to ensure the safety of women seeking abortions, it also restricted the peaceful activities of the plaintiff, Eleanor McCullen, and other opponents of abortion, who sought to stand on the sidewalk and urge those women not to make what they see as a tremendous mistake.

An op-ed by Randall Kennedy. On January 20, 2009, when Barack Obama assumed the presidency, the overwhelming majority of African-Americans cheered and prayed for him. His inauguration was a signal moment in black history, reminiscent of the celebrations that accompanied the Emancipation Proclamation, Joe Louis’ victory over Max Schmeling and the March on Washington…For many, the passion has cooled. For some, the thrill is gone.

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."