The Immigration Argument Everyone’s Ignoring

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.

Ferguson’s Grand Jury Problem

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.

Brazilian Official Discusses Olympics, World Cup Planning

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.

There will be more Fergusons

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.

Ferguson shows America’s two systems of justice

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.

In Justices’ Calculations on Gay Marriage, a Legal Golden Ratio Looms

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.

What Global Warming? Pass Me a Blanket

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.

Analysis: Precedent for Divestment Suit Is Tenuous, Legal Experts Say

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.”

Three Luminaries Want Lawyers to Refocus: Business of Law

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.”

Activism Not So Bad For Companies, Says Columbia Law Review Study

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.