HLS faculty weigh in on recent legal news

A selection of analyses and opinions from Harvard Law School experts.

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.

Continue Reading at Bloomberg »

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.

Continue Reading at The Boston Globe »

Five principles that should govern any U.S. authorization of force

An op-ed by President Obama has stated that he wants “to begin engaging Congress” over a new Authorization for Use of Military Force (AUMF) against the Islamic State and also that he wants to “right-size and update” the 2001 AUMF “to suit the current fight, rather than previous fights.” It appears that Congress, too, is finally getting serious about putting U.S. counterterrorism operations on a contemporary and more rigorous statutory footing. There are many politically contested questions about how the government should accomplish these goals — about, for example, whether U.S. ground troops should be banned from Syria and Iraq, how the fight against the Islamic State should be conducted consistent with U.S. policy against Syrian dictator Bashar al-Assad and what rules should govern the targeted killing of U.S. citizens abroad…We differ among ourselves on some questions. We nonetheless believe that, however they are resolved, an important foundational consensus can be reached — across branches and parties — on five core principles that should guide any new or revised authorization of force related to counterterrorism.

Continue Reading at The Washington Post »

Why It Matters That The World’s Two Biggest Polluters Forged A Climate Accord

An op-ed by by Robert C. Bordone and Sara E. del Nido [clinical fellow]. On Tuesday, Nov. 12, President Obama and President Xi Jinping of China announced a climate accord that demonstrates real promise in making progress to stem global climate change. The climate accord also represents something that is rarely achieved in the struggle to come together around environmental issues: a long-term agreement that meets the interests of both parties; lays the groundwork for future actions by other key players; fundamentally changes the strategic negotiation game; and takes substantial steps toward solving the problem of collective action.

Continue Reading at WBUR »

Harvard’s New Sexual Harassment Policy Must Change

An op-ed by Janet Halley. Students have rightly protested shoddy and outright malign handling of sexual harassment and sexual misconduct claims and demanded fairer procedures on college campuses. Many of the resulting reforms will improve things by sending the clear message that sexual abuse will not be tolerated or condoned. But, as often happens when public indignation and government power combine to force reform, it is easy to go too far and to make hasty fixes that threaten values that are forgotten at the moment of crisis…We have reached that point in the institutional, political and governmental demand for stricter enforcement of sexual harassment policies by institutions of higher education. Harvard University’s new Sexual and Gender-Based Harassment Policy, and its new procedures for student discipline, exemplify this trend.

Continue Reading at WBUR »

Protect Those Who Protect Our Food

An op-ed by Jacob E. Gersen and Benjamin I. Sachs. Every year, 5.5 million people are sickened by norovirus, a highly contagious gastrointestinal bug. According to the Centers for Disease Control and Prevention, norovirus is the leading cause of food-borne illness in the United States and is spread primarily by “infected food workers.” Last year cooks, waiters and other workers were involved in about 70 percent of the outbreaks. This is just one example of the critical role that food workers play in our nation’s economic and public health systems. And yet, while we often tailor employment rules for work that has a special impact on the public, the law has yet to recognize food workers as a distinct class — an approach that harms consumers, the economy and the workers themselves. Sick restaurant workers provide a particularly vivid example of the kind of legal reform that’s needed.

Continue Reading at The New York Times »

Obama’s Presidential Moment

An op-ed by Susan Crawford. I keep saying that telecom policy is blood and guts stuff — giant principles of equity, speech, and the importance of free markets run headlong into the extraordinary political powers wielded by Comcast, Verizon, Time Warner Cable, and AT&T. All too often the drama is buried in an avalanche of acronyms and incremental influence. Then came yesterday’s message from President Obama. Here was our best Obama, telling the FCC in plain language that it should consider acting like a regulator. The message actually brought a tear to my eye. It’s the equivalent of the moving part of the war movie when the gruff but effective leader calls his troops to their better selves, reminding them why they’re there in the first place. So although the president sounded like the law-professor-in-chief yesterday (“I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act”), to me it was a General Patton moment. This is a battle cry designed to give heart to his administration — and particularly the corner of the executive branch crouching in terror behind the walls of the FCC.

Continue Reading at Medium »

Obamacare May Die So Gay Marriage Survives

An op-ed by Noah Feldman. Today’s word is linkage. For example, Iran is confirming that, in October, President Barack Obama sent supreme leader Ayatollah Ali Khamenei a letter linking ongoing nuclear talks to the two countries’ joint interests in fighting the Islamic State. At the Supreme Court, linkage is going to be just as important. The U.S. Court of Appeals for the Sixth Circuit last week essentially forced the Supreme Court to decide whether there’s a constitutional right to same-sex marriage, by refusing to recognize such a right itself. The next day, the court agreed to hear a potentially fatal legal challenge to the Affordable Care Act. Taken together, these two cases transform the current Supreme Court term into a blockbuster — and the linkage relationship between them will be all-important.

Continue Reading at Bloomberg »

It’s Not Obama, It’s Just the Sixth Year

An op-ed by Kenneth W. Mack. If you want to know who to blame for any number of global and domestic crises, there is one simple answer, according to many critics: Barack Obama. The tide turned against many Democratic Congressional candidates in this year’s mid-term elections largely, some claim, because of President Obama’s relatively low approval ratings. Critics have charged Obama with indecision in the face of crises ranging from ISIS to Ebola. The seeming drift began soon after his second inaugural address – delivered only last year – when his ambitious call to collective action was quickly overtaken by a series of controversies ranging from the NSA surveillance leaks to the botched rollout of healthcare.gov. Yet a quick look back at history complicates the notion that these challenges are rooted in President Obama’s individual leadership deficiencies. It also illuminates a factor that does, indeed, make this president’s situation unique: the often-ignored fact that he is America’s first black president.

Continue Reading at The Weekly Wonk »

We must ensure everyone has access to equal justice

An op-ed by Martha Minow. Neglected in today’s headlines, blogs, and talk radio is a silent, shameful crisis that inflicts suffering and costs the nation money, legitimacy, and decency. Our justice system has become inaccessible to millions of poor people and so every day, we violate the “equal justice under law” motto engraved on the front of the grand United States Supreme Court. Americans who cannot afford legal help routinely forfeit basic rights as a result. Because the law does not enforce itself, veterans seeking benefits the nation has guaranteed, victims of domestic violence needing legal protection, and tenants and homeowners pursuing their rights since the financial disaster all need advisors and guides through the law and its agencies and courts.

Continue Reading at The Boston Globe »

Court Wrangles With Edward Snowden’s Shadow

An op-ed by Noah Feldman. Edward Snowden may never appear before a U.S. court, much less the Supreme Court — but that doesn’t mean his whistle-blowing is far from the justices’ minds. What they think about it will be very much in evidence as the court hears oral arguments today in Department of Homeland Security v. MacLean, a case concerning an air marshal who was fired for disclosing “sensitive security information” to the media. The justices will have to decide whether the federal law that protects whistle-blowers extends to those who break an agency’s regulations but not a law passed by Congress. This will matter for individual whistle-blowers in the future as well as for the overall environment in which prosecutions of government employees continue to be brought.

Continue Reading at Bloomberg »

Hayek’s Message for Victorious Republicans

An op-ed by Cass R. Sunstein. In tomorrow’s election, the Republican Party seems poised to make significant gains in the U.S. Senate and the House, and might well end up with control of both. If so, how will it define itself? It is tempting to answer by pointing to concrete policy proposals — reducing regulation, promoting free trade, cutting the federal budget. But does any general theory, or approach to government, unify those proposals? In a magnificent essay, one of modern conservatism’s greatest heroes, Friedrich Hayek, offered an answer. Published in 1960, Hayek’s “Why I Am Not A Conservative” deserves careful attention today, perhaps above all from Republicans.

Continue Reading at Bloomberg »

A Voting Rights Amendment Would End Voting Suppression

An op-ed by Lani Guinier and Penda D. Hair (co-director of the Advancement Project). Contrary to popular belief, Americans’ right to vote is not guaranteed. Sure, the Constitution mentions voting more than any other right – forbidding it from being abridged on the basis of race, for example, or the ability to pay a poll tax. Yet it contains no language that makes this right explicit. This missing safeguard has become more glaring in recent years, as politicians have enacted laws that make it harder for certain people to vote. The Supreme Court’s gutting of a key provision of the Voting Rights Act in 2013 in the Shelby County vs. Holder decision made voting rights more vulnerable than ever. In the past two years alone, the Advancement Project and other civil rights organizations legally challenged restrictive voting laws in Texas, Florida, Wisconsin, North Carolina and other states.

Continue Reading at The New York Times »

Obama, Not Bush, Is the Master of Unilateral War

An op-ed by Jack Goldsmith and Matthew Waxman. Late in the summer of 2013, President Barack Obama pulled back from his announced plans to use unilateral military force against Syria and stated that he would instead seek Congress’s approval. “I believe our democracy is stronger when the president acts with the support of Congress,” and “America acts more effectively abroad when we stand together,” he said. “This is especially true after a decade that put more and more war-making power in the hands of the president … while sidelining the people’s representatives from the critical decisions about when we use force.” Congress never authorized Obama to use force in Syria, and Russian President Vladimir Putin gave him an out by brokering a deal to eliminate Syria’s chemical weapons. But Obama’s statement on the need for congressional consent, and the noted contrast with his predecessor, are nonetheless clarifying in their irony.

Continue Reading at The New Republic »

Rethink Harvard’s sexual harassment policy

An op-ed by 28 members of the Harvard Law School faculty. As members of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration and the Corporation on all parts of the university, including the law school. We strongly endorse the importance of protecting our students from sexual misconduct and providing an educational environment free from the sexual and other harassment that can diminish educational opportunity. But we believe that this particular sexual harassment policy adopted by Harvard will do more harm than good.

Continue Reading at The Boston Globe »

Class Action Case Could Bend the Law

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.

Continue Reading at Bloomberg »

The Weekly Wonk Podcast: A New Kind of Campus “Diversity”

Promoting diversity in education was one the biggest and most widely practiced ideas of the 20th century. But as Tomiko Brown-Nagin, Daniel P.S. Professor of Constitutional Law and Professor of History at Harvard, argued in last week’s edition of The Weekly Wonk, diversity isn’t getting us where we need to go to help students who are truly disadvantaged. She has another big idea to make higher education a real pathway to social mobility: directing resources to students who are the first in their families to attend college. In this episode, Anne-Marie Slaughter and Brown-Nagin outline the stakes for how reaching out to first-generation students can make college, in the words of Horace Mann, a “great equalizer.”

Continue Reading at New America »

We Should Be Protesting, Too

An op-ed by Lawrence Lessig. This week, tens of thousands of Hong Kong residents turned out to protest China’s plan for bringing democracy to that city. Rather than letting voters pick the candidates that get to run for chief executive, Beijing wants the candidates selected by a 1,200 person “nominating committee.” Critics charge the committee will be “dominated by a pro-Beijing business and political elite.”…But there’s not much particularly Chinese in the Hong Kong design, unless Boss Tweed was an ancient Chinese prophet. Tweed famously quipped, “I don’t care who does the electing, so long as I get to do the nominating.” Beijing’s proposal is just Tweedism updated: a multi-stage election, with a biased filter at the first stage. The pattern has been common in America’s democracy too.

Continue Reading at The Huffington Post »

Obama Doesn’t Want Your Approval for War

An op-ed by Noah Feldman. The Barack Obama administration has offered no credible legal authorization for a war against Islamic State, and Congress plainly will not provide one. What’s going on here, asks the shade of James Madison? Has the U.S. completely lost the part of the Constitution that imagines Congress and thus the people as a check on the president’s war powers? And if so, does it matter?

Continue Reading at Bloomberg »

Why We Need a New College Admissions Strategy

An op-ed by Tomiko Brown-Nagin. Sometimes, vague can be misleading—and harmful. For years, colleges have identified disadvantaged students based primarily on “diversity” and “need.” But those categories are broad and unspecific, and can be gamed by sophisticated applicants and parents. The result? Schools aren’t helping the students that really need it. And higher education is now perpetuating—rather than alleviating—inequality. We can reverse this pattern by learning from our education history and shifting the focus of that aid effort to first-generation college students. The key here is this: Colleges need to get more specific about who they want to help, and why.

Continue Reading at The Weekly Wonk »

Students before teachers

An op-ed by Laurence Tribe. When I decided to join Students Matter, the group that spearheaded a lawsuit that invalidated California’s teacher tenure, dismissal and “last in, first out” layoff laws, I expected negative reactions from fellow progressives. Sure enough, the day of the announcement, lots of incredulous and even hostile e-mails appeared in my inbox, accusing me of betraying the Democratic Party, our allies in organized labor and even my own K-12 public school teachers. These negative reactions are rooted in a misunderstanding of what is at stake as lawsuits similar to Vergara v. California spread to the other states with similar laws.

Continue Reading at USA Today »

Obama’s Breathtaking Expansion of a President’s Power To Make War

An op-ed by Jack Goldsmith. Future historians will ask why George W. Bush sought and received express congressional authorization for his wars (against al Qaeda and Iraq) and his successor did not. They will puzzle over how Barack Obama the prudent war-powers constitutionalist transformed into a matchless war-powers unilateralist. And they will wonder why he claimed to “welcome congressional support” for his new military initiative against the Islamic State but did not insist on it in order to ensure clear political and legal legitimacy for the tough battle that promised to consume his last two years in office and define his presidency.

Continue Reading at Time »

The Case for Kill Switches in Military Weaponry

An op-ed by Jonathan Zittrain. This summer the insurgent group ISIS captured the Iraqi city of Mosul—and along with it, three army divisions’ worth of U.S.-supplied equipment from the Iraqi army, including Humvees, helicopters, antiaircraft cannons and M1 Abrams tanks. ISIS staged a parade with its new weapons and then deployed them to capture the strategic Mosul Dam from outgunned Kurdish defenders. The U.S. began conducting air strikes and rearming the Kurds to even the score against its own weaponry. As a result, even more weapons have been added to the conflict, and local arms bazaars have reportedly seen an influx of supply. It is past time that we consider whether we should build in a way to remotely disable such dangerous tools in an emergency.

Continue Reading at Scientific American »

The Mystery of ‘Living Will’ Rules for Banks

An op-ed by Hal Scott. Most college students now returning to campuses will never hear the words that the Federal Reserve and the Federal Deposit Insurance Corp. spoke in August to the managements of the country’s 11 largest banks: You’ve failed. Each of these big banks flunked the course titled “living wills.” The Fed and the FDIC required the banks to make contingency plans detailing how in a crisis they would be wound down without suspending critical financial services, and without public support. The two regulators announced jointly last month that no plan earned a passing grade.

Continue Reading at The Wall Street Journal »

China Slaps Hong Kong, Taiwan Reels

An op-ed by Noah Feldman: The message China’s leaders sent when they announced that they would have to approve any future elected leaders of Hong Kong should be heard loud and clear — not as much in Hong Kong as in Taiwan, where it really matters, and throughout the region.

Hong Kong isn’t just a unique entity within China, governed in theory by the principle of “one country, two systems.” It’s also a model of what Taiwan could expect if Chinese hegemony over the island it claims as its own were to become greater. China’s message to Hong Kong puts Taiwanese democrats in a difficult strategic bind in their attempt to assure their future. It also has consequences for American efforts to engage Asian allies who are growing economically closer to China each passing day.

Continue Reading at Bloomberg »

Could Trade Law Curb Chinese Hackers?

An op-ed by Noah Feldman. When a computer somewhere in China hacks into your company’s server, the Department of Justice says that’s a crime. But good luck hauling an anonymous junior officer in the People’s Liberation Army into court — much less deterring future Chinese cyber-attacks through criminal prosecution. SolarWorld Americas, a major U.S. producer of solar panels, has another idea. It has asked the Department of Commerce to impose trade sanctions against China as retaliation for cyber-attacks it has suffered. The idea is legally creative, politically risky — and the harbinger of things to come in the emerging cool war between China and the U.S.

Continue Reading at Bloomberg »

The First Amendment Should Protect Disfavored Viewpoints

An op-ed by Laurence H. Tribe: The United States Supreme Court has said that “the constitutional right of free expression is powerful medicine.” Powerful and essential, and it needs to be administered to everyone, including physicians and those regulating their practice. Recent decisions by two federal appeals courts suggest, to the contrary, that the doctor’s office is becoming a First Amendment-free zone…Still, both judicial opinions are troubling for the same reason: They broadly paint medical care as “conduct,” not “speech,” and thereby entirely exempt occupational-licensing laws from the usual First Amendment scrutiny.

Continue Reading at New York Times »

How to Deregulate Cities and States

An op-ed by Edward Glaeser and Cass Sunstein: A lot of attention has been devoted in recent years to overregulation at the national level. For many people, though, the regulations that hit hardest come from states and localities. The story of Uber’s fight with overzealous local regulators is only a well-publicized tip of the iceberg. A 2012 study conducted by the Institute for Justice finds that 102 trades and occupations now face licensing requirements in states or cities. The people who suffer most from them are those without a lot of money or advanced education.

Continue Reading at Wall Street Journal »

Who Cares What Economists Say About Immigration?

An op-ed by Cass Sunstein: In his 2014 State of the Union address, President Barack Obama tried to attract support for one of his highest priorities when he said, “Independent economists say immigration reform will grow our economy and shrink our deficits.” He’s right. Economists disagree about a lot of things, but on behalf of immigration reform, there is a professional consensus that cuts across the usual political divisions. Why, then, has reform stalled in Congress?

Continue Reading at Bloomberg View »

US has yet to overcome its tortured racial past (registration required)

An op-ed by Annette Gordon-Reed. For a founding father who usually took a sunny view of his nation’s prospects, it was a darkly pessimistic prophesy. In his Notes on the State of Virginia, Thomas Jefferson argued that if – as he hoped – America’s black slaves were one day set free, the result would be conflict and an inevitable descent into racial war. And in the hours after Governor Jay Nixon imposed a night-time curfew on the Missouri town of Ferguson following the killing there of an unarmed teenager by a police officer earlier this month, it is indeed reasonable to wonder whether a form of war (sometimes hot, sometimes cold) has been waged against blacks in America from Jefferson’s time until our own.

Continue Reading at Financial Times »

James Brady’s Death Isn’t a Murder 33 Years Later

An op-ed by Noah Feldman. The government would have to overcome major legal hurdles to charge John Hinckley Jr. in the murder of James Brady some 30 years after the fact. But if that were the morally right thing to do, it would be worth trying, despite the improbability of success. Is it? The answer is no — but not for the reasons you might think. It doesn’t have to do with Hinckley’s guilt or Brady’s heroism or Ronald Reagan’s presidential status. The reason not to prosecute Hinckley lies in the kind of criminal justice system we want to have: one that doesn’t seek solely to punish the guilty, but rather to punish the guilty subject to the requirements of basic fairness.

Continue Reading at Bloomberg »

How Maine Saved the Internet

An op-ed by Susan Crawford. Rockport, Maine, population 3,321, is trying to solve the existential dilemma of small-town America: How do you get people like Meg Weston’s students to stick around?…The town’s Internet access connection didn’t have enough room to handle the school’s demands, and private companies would charge too much to be a realistic option. That is, until this week, when Rockport opened its own gigabit-scale municipal fiber optic network — meaning it can transmit a thousand megabits of data a second.

Continue Reading at Bloomberg »

The Death Penalty Is Incompatible With Human Dignity

An op-ed by Charles Ogletree. I have wondered countless times over the past 30 years whether I would live to see the end of the death penalty in the United States. I now know that day will come, and I believe that the current Supreme Court will be its architect.

Continue Reading at The Washington Post »

Obamacare Has a Scary Day in Court

An op-ed by Noah Feldman. Just when you thought it was safe to get back in the water, the judges in Washington took another big chomp out of the Affordable Care Act. No, not the Supreme Court — this time it was the U.S. Court of Appeals for the D.C. Circuit. In a 2-1 panel decision on partisan lines, the appeals court ruled that the tax subsidies for insurance coverage purchased from federal exchanges are illegal. The effect of the decision is to drastically undercut Obamacare by enabling all 36 states that don’t have their own exchanges to exempt millions of people from the individual mandate that they buy insurance. Meanwhile, across the Potomac River, the U.S. Court of Appeals for the Fourth Circuit ruled the opposite way.

Continue Reading at Bloomberg »

The Poor Need Ryan’s Regulation Reform

An op-ed by Cass. R. Sunstein. While Representative Paul Ryan’s new anti-poverty plan has provoked significant discussion, little attention has been given to his ideas for regulatory reform. Those ideas deserve separate analysis and also considerable credit. They point in helpful directions, and they suggest the possibility of bipartisan cooperation on some important questions.

Continue Reading at Bloomberg »

Apple Pay Could Make You Poorer

An op-ed by Cass R. Sunstein. The new Apple payment system has extraordinary promise. With Apple Pay, you might not need a wallet, and you can leave your credit and debit cards at home. In terms of ease and convenience, payment cards represented a big leap from the era of cash. Apple hopes its system will be a comparable leap from the era of cards. Skeptics have focused on questions of security and privacy, but prospective users might want to pause over a different problem: When payment becomes easier, and when people don’t see the money they’re handing over, they tend to spend a lot more. And as payment becomes more automatic, people become less sensitive to what they’re losing. Apple Pay users might find that their thinner phones are making their bank accounts thinner as well.

Continue Reading at Bloomberg »