Media Mentions

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).

Insurance companies may have found a way to skirt one of Obamacare's most popular promises: equal access to insurance coverage for patients with preexisting conditions…"Insurance companies have a long history of undertaking practices designed to restrict [high-risk pools]—through preexisting-protection preclusions, and higher premiums," said Robert Greenwald, director of the Center for Health Law and Policy Innovation at Harvard Law School. "All those options are now off the table clearly and explicitly. So what we're seeing instead are other practices—lack of transparency, failing to cover other medications, refusing to accept third-party payments, or the tiering of medicines."

…But how can schools attract and retain good principals? One education-policy think tank suggests that part of the answer may be making the role more like an executive and giving each principal a $100,000 salary raise...But while there’s certainly a “you-get-what-you pay-for” aspect to any profession, educators don’t necessarily correspond neatly to executives. Generally, bonuses work, so long as they don’t cause principals to focus on certain criteria at the expense of their job as a whole, according to Jesse Fried, professor of law at Harvard and co-author of Pay without Performance: The Unfulfilled Promise of Executive Compensation. “People going into teaching are obviously not motivated solely by the prospect of financial gain,” he says. “[But] if society substantially underpays principals, many good people will not seek these jobs or stay in them.”

An Illinois healthcare worker's legal challenge of mandatory union dues from public employees reaches a climax on Monday when the U.S. Supreme Court is due to rule in the case at the final session of its nine-month term. If the justices agree with the sweeping argument made by home healthcare worker Pamela Harris that compulsory union dues are forced association and speech prohibited by the U.S. Constitution's First Amendment, it would essentially establish a national right-to-work law and deliver a blow to public employee unions. Harvard Law School professor Benjamin Sachs said that if the perception holds that the Supreme Court saves blockbuster opinions for the end, it will mean a union loss. "If the union wins, it means the Supreme Court is affirming longstanding precedent. That is less of a 'blockbuster' kind of opinion than overturning longstanding precedent," Sachs said.

An op-ed by Noah Feldman. Class-action securities litigation survived today -- and the big news is that it was saved not just by swing voting Justice Anthony Kennedy, but also by Chief Justice John Roberts. Roberts wrote the opinion for the court affirming the presumption that, if you bought stock in a reasonably well functioning market, you relied on material information that the market knew. The decision showed once again the realism that has cost Roberts the admiration of hard-core conservatives ever since his pragmatist treachery in upholding the individual mandate in the Affordable Care Act case.

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.

An op-ed by Noah Feldman. Perhaps, like me, you trust Mormon missionaries and enjoy chatting with them even if you already have your own religion. Even so, if you happen to see one with his hand in your mailbox, you should probably tell someone. Kevin Loughrin used phony LDS missionary cover to steal checks from boxes all over Salt Lake City. He then altered the checks, used them to buy stuff at Target, and later returned the goods for cash. Today, the U.S. Supreme Court held that he was guilty of federal bank fraud.

Earlier this month, digital rights activist and Harvard law professor Lawrence Lessig launched Mayday PAC, a super political action committee aimed at reforming U.S. campaign finance laws. To date, the Super PAC has raised more than $1.2 million in pledges from 17,500 people. Through Mayday, Lessig hopes to turn the mechanism of corporate influence in politics against itself. “If we are effective,” he says, “we will reduce the power of money.”

Several Silicon Valley billionaires, many of them startup veterans, are getting behind an effort to ... reduce the influence of billionaires. The group, spurred into action by digital rights activist and Harvard law professor Lawrence Lessig, is funding a Super PAC, or political action committee, designed to obviate the need for Super PACs. "We are a crowdfunded SuperPAC to end all SuperPACs," reads the Super PAC's web site. "Ironic? Yes. Embrace the irony."