A selection of analyses and opinions from Harvard Law School experts.
An op-ed by Jeannie Suk…We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California. More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list. …The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society. It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties.
An op-ed by Hal Scott. The Federal Reserve and the Federal Deposit Insurance Corp. recently determined that five of America’s largest banks do not have credible plans to go through bankruptcy without relying on extraordinary government support. If these five firms— J.P. Morgan Chase, Bank of America, Wells Fargo, Bank of New York Mellon and State Street—can’t develop “living wills” that satisfy regulators, then the Dodd-Frank Act authorizes the government to break them up as soon as 2018. What led to their failing grades on living wills? It can’t be lack of effort: Every year, American banks can each spend more than $100 million and one million hours preparing them, according to the Government Accountability Office (GAO). The real reason for failure is that the banking regulators have not disclosed enough details about how they assess the credibility of a living will. This opaqueness casts serious doubt on the legality of the determinations—and the threat to break up the banks.
An op-ed by Andrew Manuel Crespo. First he called Latinos “rapists.” After that, Donald Trump forcibly ejected the country’s leading Latino journalist from a press conference, swiped at Jeb Bush for being married to a Latina, praised supporters who assaulted a Latino man, and sharply criticized the country’s only Latina governor — a fellow Republican. In terms of denigrating Latinos, that’s a hard list to top. But Trump’s most recent attack, this time against federal judge Gonzalo Curiel, is among his very worst. Unanimously confirmed by the Senate, Judge Curiel is presiding over a lawsuit that accuses Trump of swindling students at the unaccredited Trump “University,” which Trump’s own employees have described as a fraud. At a recent rally, Trump said that Judge Curiel should step off the case, and then told the crowd, who had previously chanted “build that wall,” that Judge Curiel, born in Indiana, “happens to be Mexican.” That comment was widely criticized as coded racism. A week later, however, Trump doubled down, telling a reporter that Judge Curiel’s “Mexican heritage” disqualifies him from the case because, in Trump’s words, “I’m building a wall. It’s an inherent conflict of interest.” Being Latino, that is. Only numbness to Trump’s streaming insults could spare this latest slur from becoming a campaign ender.
An op-ed bWith 24 cases still to decide this term and only eight justices to decide them, the Supreme Court has mustered all its resources to find (or manufacture) consensus. Many rulings — even those with lopsided majorities — hint strongly of compromise. So far, the justices have mostly decided not to decide, drafting narrow opinions that leave big questions unanswered. It is in vogue to treat this term as a one-off, yet another result of madhouse election-year politics. On that view, the court just needs to tread water a while longer. In the meantime, each of us can hope that justices who share our particular vision will end up with a majority. But when “exceptional” circumstances endure long enough, advance powerful political interests and are tolerated by the public, they can easily become the new normal.
An op-ed by Elizabeth Bartholet and Paulo Barrozo. Republican Representative Tom Marino of Pennsylvania and Democratic co-sponsors David Cicilline of Rhode Island, Jim McDermott of Washington, and Brian Higgins of New York introduced a bill last week that would put the United States in the position of supporting — rather than undermining — the human rights of children worldwide. It is a simple bill, consisting of only a few lines of text and requiring no new resources. But it would have a profound effect on one of the most significant human rights crises of our time. The bill would essentially tell the State Department to stop discriminating against children through its refusal to consider the violations of human rights inherent in their unnecessary institutionalization.
An op-ed by Charles J. Ogletree Jr. & Kimberly Jenkins Robinson. Current discussions about K-12 education often highlight the reforms that seek to improve the quality of schooling. Some of these measures—the common-core standards, teacher evaluation, and, most recently, the Every Student Succeeds Act—undoubtedly have the potential to improve educational opportunities for students. However, what is often missing from education reform conversations is how these reforms can create sustainable changes to the education system. We believe the system’s very foundations are broken, and school funding is one of the most pressing issues in need of repair.
An op-ed by Noah Feldman. As law professors go, I’m pretty sympathetic to Clarence Thomas’s constitutional jurisprudence. It’s not that I agree with him, which I almost never do. But I think he genuinely tries to apply originalism using historical methods. And when it comes to the law of race, where again I disagree with Thomas, I respect his effort to give voice to a distinctive form of conservative black nationalism that insists on colorblindness because it’s better for blacks.
An op-ed by Nancy Gertner. When we talk about political corruption, what often comes to mind is what the law calls “quid pro quo”: I give a politician money and in exchange he or she gets me a government contract or votes in my favor. But there is a continuum of quid pro quo exchanges, some plainly illegal, some not and some ambiguous. In the case of former Virginia governor Robert McDonnell, the Supreme Court will decide whether it is constitutional to prosecute a public official for conduct on that continuum, conduct never before determined to be at the illegal end. The issue is not whether we should regulate gifts to public officials; the issue is whether the criminal law can be used as a bludgeon when we have not done so. I think not. As a matter of due process, criminal prosecutions can be brought only when we have clearly defined what is legal and what is not.
An op-ed by Lawrence Lessig. U.S. Rep. David Jolly, a Republican from Indian Shores, has generated enormous enthusiasm for his Stop Act — a proposal to ban members of Congress from personally asking people for money. “60 Minutes” did a special segment about the idea. That followed an incredibly powerful piece by comedian John Oliver describing with perfect clarity just how absurd the system has become. From my own survey of research, we know that members of Congress can spend anywhere between 30 percent and 70 percent of their time raising money. Even at the low end of that estimate, this should astonish anyone. Critics are wrong to call this a “do-nothing Congress.” To the contrary, it does an incredible amount — of fundraising. That life of fundraising changes the members of Congress. How could it be otherwise? If you spent half of your time sucking up to powerful and wealthy people, you’d be changed, too.
An article by Samuel Moyn. The duty to remember—especially to remember victims lost to political evil—has become one of the most commanding mantras of our culture. Yet it is astonishing how recently this imperative became so authoritative. Kings have raised monuments to their own alleged greatness for millennia, but commemoration of the dead of the wars of nations reached its apogee only in the early twentieth century with the end of World War I and now-familiar invocations of the heroism and self-sacrifice of soldiers for the sake of the nation’s political fortunes.
An op-ed by Hal Scott. In remarkably unusual public statements, Treasury Secretary Jacob Lew has aggressively criticized U.S. District Court Judge Rosemary Collyer’s legal decision to invalidate the Financial Stability Oversight Council’s designation of MetLife as a systemically important financial institution (SIFI). Mr. Lew asserts that Judge Collyer overturned FSOC’s conclusion that MetLife is a SIFI and that her decision contradicted key policy lessons from the financial crisis. He’s wrong. Judge Collyer makes no specific determination as to whether MetLife is a SIFI and certainly does not base her judicial decision on the policy lessons of the financial crisis.
An op-ed by Noah Feldman. Justice Stephen Breyer is against the death penalty — but not because it’s morally wrong. He briefly reiterated his arguments Monday when dissenting from the court’s refusal to hear a California death row inmate’s case. First, he said the death penalty may be unconstitutional in California because it’s applied arbitrarily and unreliably. Those are plausible and unremarkable arguments. They no doubt appeal to the technician in Breyer, who believes that government should do things pragmatically and correctly. But his third reason was most striking. Following a view he has held since the 1990s, Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.
An op-ed by Nancy Gertner and Jack Corrigan. The Globe reported Sunday that Boston Mayor Martin J. Walsh wouldn’t say whether he had been a grand jury witness in a federal investigation into the tactics of Boston Building Trades unions. Since then, many have chided him for not being more forthright. But that misses a critical point: Grand jury proceedings are supposed to be secret. Government agents are bound by strict confidentiality rules. They may not disclose who has been called, when they testified, or what the subject was; they are barred from releasing information about wiretaps or other evidence they have assembled. While witnesses may speak about their testimony, they do receive a letter from the government with their subpoena that strongly urges them not to do so to protect the integrity of the grand jury investigative process. And that “suggestion” is particularly important in this probe and one that Walsh was right to heed.
An op-ed by Noah Feldman. The Washington Redskins are headed for the Supreme Court – in the guise of a dance rock band called The Slants. The Department of Justice has asked the court to review a lower court’s holding that the Patent and Trademark Office violated the band’s free-speech rights by denying it a registered trademark on the grounds of offensiveness. The justices are likely to take the case – which would mean that next year they will effectively decide whether the National Football League franchise can also be denied trademark registration. It also means that the question of what to do about names that offend some listeners is going to get its day in court.
An op-ed by Bonnie Docherty. Dozens of countries are holding a multilateral disarmament conference at the United Nations in Geneva today to discuss a new and disturbing threat to humanity. Military powers from across the world are developing technology that could lead to the creation of fully autonomous weapons—that is, weapons that would select targets and fire without “meaningful human control.” The diplomats in Geneva need to decide how to deal with these “killer robots” in international law before it is too late.
An op-ed by Jack Goldsmith. Last week the State Department’s top lawyer, Brian Egan, gave an important but underreported speech that marked the final stage of the Obama administration’s normalization of once-controversial Bush-era doctrines about the conduct of war. Before a gathering of geeky international law-loving lawyers in Washington, D.C., Egan announced the Obama administration’s official embrace of the same preemption doctrine that justified the invasion of Iraq. Egan’s speech marks the culmination of a continuity project that began, to many people’s surprise, at the beginning of Barack Obama’s first term. Since 2009, Obama has adopted the notion of a global war against al-Qaeda and associates; he expanded the legal basis of that war to include ISIS; he embraced military detention without trial, military commissions, state secrets and large-scale secret surveillance; and he ramped up drone strikes, deployment of Special Forces and cyberattacks.
An op-ed by Noah Feldman. The administration of President Barack Obama just won a big legal victory for its decision to let some children of illegal immigrants remain in the country. On the surface, that might seem to augur well for the administration’s efforts to ease other immigration restrictions in the face of Congressional opposition. Don’t count on it. The federal court decision that backed Obama was based on precarious legal reasoning that’s vulnerable to reversal by the Supreme Court.
An op-ed by Cass Sunstein: Predicting the experience of his successor General Dwight Eisenhower, President Harry Truman said this: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike — it won’t be a bit like the Army. He’ll find it very frustrating.” Donald Trump and Ted Cruz have promised to get rid of a whole host of executive actions from the Barack Obama administration. (If the Republican convention produces a different nominee, expect similar promises.) But there’s good reason to doubt how much would happen if one of them wins. The principal reason is simple: the law.
An op-ed by Laurence Tribe. A one-line opinion. That’s what the Supreme Court gave us this week, in what many expected to be one of the biggest cases of the year. At stake in Freidrichs v. California Teachers Association was the ability of public-sector unions to collect fees from non-joiners unwilling to pay for the unions’ collective bargaining efforts. Some thought the fate of the American labor movement hinged on the outcome. The court had mountains of materials to consider. But it said only this: “The judgment is affirmed by an equally divided Court.” If the Republican Senate keeps stonewalling Judge Merrick Garland’s nomination, pretending that it can discharge its advice and consent duty by doing nothing, get used to hearing that sentence. This year, contraception, abortion, voting rights, religious freedom and affirmative action are on the court’s docket. Next year and beyond we can expect cases on guns, campaign finance and the balance between security and privacy. But an incomplete court will deadlock 4-4 on many of these issues.
An op-ed by Jack Goldsmith. One unmistakable sign of the stellar reputation of Merrick Garland, President Obama’s Supreme Court nominee, is the praise he received from the President’s most conservative critics. Ed Whelan, an influential opponent of President Obama’s judicial nominees, expressed “very high regard” for Garland, whose “intellect and decency” he admires. His National Review colleague Andrew McCarthy, another sharp critic of the President’s judicial choices, thinks “very highly” of Garland and says “there is no doubting Garland’s intellect and integrity.” Both men, however, oppose Garland and urge the Senate not to consider the nomination. And Senate majority leader Mitch McConnell announced that Garland would not in fact receive a hearing.
An article by Jody Freeman (registration required): In February 2016, the U.S. Supreme Court made an extraordinary decision. It temporarily suspended the implementation of President Barack Obama’s signature climate change initiative—the Clean Power Plan—which requires coal- and gas-fired power plants, the largest source of U.S. carbon pollution, to cut their emissions for the first time. At the Paris climate talks just two months prior, nearly 200 nations pledged to mitigate their greenhouse gas emissions using a variety of domestic policies. Obama’s plan had become a crucial part of the United States’ strategy for meeting its own commitment in Paris: to reduce greenhouse gas emissions by up to 28 percent by 2025, compared to 2005 levels.
An op-ed by Noah Feldman. Russian President Vladimir Putin had his “mission accomplished” moment Monday, announcing that Russia would withdraw its main forces from Syria after they turned the tide in President Bashar al-Assad’s struggle against Syrian rebels. The announcement partly explains why Putin has been supporting a cease-fire and truce talks over the last month: His goal is to consolidate the gains he and Assad made together. From a purely cynical perspective, the operation has been a fairly impressive success for Putin: Bomb intensely to create a humanitarian crisis while your troops advance, then negotiate peace to look like a good guy while assuring that the other side can’t fight back without violating the truce. And accomplish all this while strengthening your bargaining position vis-à-vis the U.S. and Europe.
An op-ed by Cass Sunstein. Suppose that you think that Donald Trump would be a terrible presidential nominee and an even worse president, and you want to convince his supporters that you are right. What should you do? Behavioral science reveals why there’s no easy answer — yet it also offers some clues about what might work. The most important findings involve the risk of “backfiring corrections.” A growing body of research demonstrates that when people’s convictions are firm, attempts to correct those views, with evidence, can make them firmer still. That should be a red flag for anyone who seeks to turn Republican voters against Trump.
An article by I. Glenn Cohen and Eli Y. Adashi…Mitochondrial replacement therapies (MRTs) constitute a family of technologies that seek to prevent the transmission of mutant mitochondrial DNA (mtDNA) from carrier mothers to their children. The embryos so created comprise nuclear DNA from the intended mother and nonpathogenic mtDNA from another woman (the ‘mitochondrial donor’)2. As such, MRTs allow a woman at risk to be the ‘genetic mother’ of the resulting child (at least in terms of her nuclear DNA) without passing on the pathogenic mtDNA.
An op-ed by clinical instructor Robert E. Proctor. As Housing Day approaches and we celebrate “randomization” as a mechanism to diversify the House system, Harvard still struggles to make House staff more diverse. According to House lore, in the early 1990’s there was a top ranked law student, and later president of the Harvard Law Review, who applied to be a tutor in each Harvard College House. Without so much of an interview, every House outright rejected him—save one that rejected him after his interview. This law student went on to become the 44th President of the United States.
An op-ed by Noah Feldman. Filing a friend-of-the-court brief to the Supreme Court sounds like an act of spontaneous intellectual generosity meant to help the justices see all sides of a case. Or maybe an exercise in lobbying by interest groups. Actually, it’s neither. A new article by two law professors shows that an organized business they dub the “amicus machine” generates hundreds of amicus curiae briefs, planned and coordinated by the specialized guild of lawyers who argue before the court. Surprisingly, the authors think the machine is a good thing.
An op-ed by Mihir Desai. Removing the incentive for American companies to move their headquarters abroad is a widely recognized goal. To do so, the U.S. will need to join the rest of the G-7 countries and tax business income only once, in the country where it was earned. Notably, this principle—called territoriality—is included in the bipartisan framework for international tax reform developed by Sens. Rob Portman (R., Ohio) and Charles Schumer (D., N.Y.) in 2015. Unfortunately, recent reform proposals have a serious flaw: a “minimum tax” on foreign business income. This flaw is in President Obama’s fiscal 2017 budget, and Republican presidential front-runner, Donald Trump, has broached a similar idea on the campaign trail.
An op-ed by Cass Sunstein. On the Supreme Court, both conservatives and liberals admire bold, heroic figures, invoking the Constitution to strike down what they dislike most — whether it’s Obamacare, affirmative action programs, restrictions on abortion, bans on same-sex marriage or executive actions by Democratic or Republican presidents. But the U.S. has had enough of judicial heroism. As the nation debates the future membership and direction of the court, it’s a good time for minimalists, who speak softly and carry a small stick.
An op-ed by Einer Elhauge. Like many people, I have been wondering: What on Earth explains Donald Trump’s remarkable appeal to voters? I’ve come to the conclusion that the answer is fairly simple. The message of his Republican opponents has effectively been: We are more faithful to conservative principles. Trump’s message has been entirely different. He essentially says: I will protect you. I’m conservative, but if protecting you requires jettisoning conservative ideology, I will do so. Protecting you is the prime directive. This message has powerful resonance, especially for voters who feel the Republican Party has failed to protect their interests.
An op-ed by Mark Roe. HSBC’s decision last week to keep its headquarters in London, after reports that it would leave the UK if the levy on bank liabilities were not lifted, will have been greeted with relief at the Treasury. However, there is good reason to think the Treasury got a bad deal, jeopardising financial safety for not very much in return. In his Autumn Statement last year, Chancellor George Osborne promised to phase out the levy, offsetting this with an 8 per cent surcharge tax on bank profits. Taxing bank profits is popular with voters, even though it makes the financial system weaker. Because it makes bank equity more expensive and ending the levy makes debt cheaper, the surcharge will push British banks to use less safe equity and more risky debt.
An op-ed by Bruce Hay. In the two weeks since his death, many have spoken about Antonin Scalia’s undeniable impact on American law. As attention shifts to filling the vacancy he has left on the Supreme Court, I would like instead to talk about his less appreciated impact on contemporary physics…His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility. Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn.