The Clean Power Plan Is Unconstitutional

An op-ed by Laurence Tribe. As a law professor, I taught the nation’s first environmental law class 45 years ago. As a lawyer, I have supported countless environmental causes. And as a father and grandfather, I want to leave the Earth in better shape than when I arrived. Nonetheless, I recently filed comments with the Environmental Protection Agency urging the agency to withdraw its Clean Power Plan, a regulatory proposal to reduce carbon emissions from the nation’s electric power plants. In my view, coping with climate change is a vital end, but it does not justify using unconstitutional means.

‘Why the Innocent Plead Guilty’: An Exchange

A letter by Nancy Gertner. Judge Jed S. Rakoff’s article “Why Innocent People Plead Guilty” [NYR, November 20, 2014] is spot on, but doesn’t go far enough. True, we have a federal plea system, not a trial system. True, to call the process “plea bargaining” is a cruel misnomer. There is nothing here remotely like fair bargaining between equal parties with equal resources or equal information. The prosecutors’ power—as Judge Rakoff describes—is extraordinary, far surpassing that of prosecutors of years past, and in most cases, far surpassing the judge’s. Judge John Gleeson, a federal judge of the Eastern District of New York, made this clear during a case involving a charge for which there is a mandatory minimum sentence. As a result of the prosecutor’s decision to charge the defendant with an offense for which there is a mandatory minimum sentence, no judging was going on about the sentence. The prosecutor sentenced the defendant, not the judge, with far less transparency and no appeal.

‘Interview’ attack may signal new cyberwar

It will be a long time, if ever, before the public sees Sony Pictures Entertainment’s movie “The Interview.” Instead, we’ve seen a preview of a new kind of warfare. Hackers allegedly backed by the impoverished, backward nation of North Korea have terrorized one of the world’s richest corporations into halting the release of the film, a comedy about a fictional plot to assassinate North Korean dictator Kim Jong-Un. …But Andy Sellars, a First Amendment fellow at the Berkman Center for Internet & Society at Harvard University, doubts we’ll see a similar incident anytime soon. “To me, it feels much more like a one-off,” Sellars said. “To me, I think it’s an exceptional case under exceptional circumstances.”

Obama, Executive in Charge

An op-ed by Noah Feldman. One part of the U.S. Constitution stood out above all others in 2014: executive power. Under the presidency of George W. Bush, executive power reached what many considered its apogee, and the topic got a lot of press. During the first five years of the Barack Obama administration, the subject seemed to wane in importance, surfacing occasionally on the topic of drone strikes, and then receding. Now it’s back, on issues such as the war against Islamic State, immigration reform and diplomatic relations with Cuba. And we can expect much more concern about the use of executive power during the rest of Obama’s presidency, as the lame duck becomes the executive duck in charge.

George W. Bush’s Graceful Silence

An op-ed by Cass Sunstein. In the domain of foreign affairs, 2014 has brought heated national debates on an impressive range of subjects: Russia, Ukraine, Iran, Syria, Ebola, immigration policy and, most recently, torture, North Korea and Cuba. One of the more remarkable features of all these discussions has been the consistent grace of President George W. Bush. This month, Bush offered a rare comment on a public debate. Responding to the Senate’s release of the CIA torture report, he said, “We’re fortunate to have men and women who work hard at the CIA serving on our behalf. These are patriots and whatever the report says, if it diminishes their contributions to our country, it is way off base.” Note that Bush paid tribute to the employees of the CIA — and pointedly declined to take a shot at the Barack Obama administration.

The Case Against Boycotting SodaStream

An op-ed by Alan M. Dershowitz. I write to commend President Faust’s decision to investigate the unilateral action of the Harvard University Dining Services to boycott SodaStream products. I have visited the SodaStream factory and spoken to many of its Palestinian-Arab employees, who love working for a company that pays them high wages and provides excellent working conditions. I saw Jews and Muslims, Israeli and Palestinians, working together and producing an excellent product that is both healthy and economical.

Danielle Allen named to Harvard posts

Eminent political theorist Danielle S. Allen, M.A. ’98, Ph.D. ’01, has been appointed both to the Faculty of Arts and Sciences (FAS) as a professor in the Government Department and to Harvard’s Edmond J. Safra Center for Ethics as its director. The announcement was made jointly today (Dec. 18) by Harvard University Provost Alan M. Garber and Edgerley Family Dean of the Faculty of Arts and Sciences Michael D. Smith. Allen succeeds Harvard Law School (HLS) Professor Lawrence Lessig as director. Lessig joined the Edmond J. Safra Center for Ethics in 2009 to direct a five-year “lab” focused on institutional corruption. The lab completes its work in 2015. …“Allen is a perfect director to continue the focus of the center on issues of practical ethical concern,” said Lessig, the center’s current director. “I am incredibly happy that she will join the center to continue its work.”

At Law School, Is Insensitivity Grounds for an Objection?

On the other side of the country, Harvard law professor Jeannie Suk has taken to the New Yorker to express concern over her perception that students are increasingly likely to object when classroom discussion turns to rape. “Individual students often ask teachers not to include the law of rape on exams for fear that the material would cause them to perform less well,” she writes. “One teacher I know was recently asked by a student not to use the word ‘violate’ in class—as in ‘Does this conduct violate the law?’—because the word was triggering.”

The Year Terrorists Lost Religion

An op-ed by Noah Feldman. The horrific massacre of 132 boys this week at their school in Peshawar, Pakistan, embodies a new trend in Islamist terrorism that has emerged over this year. Past jihadi terrorists, up to and including Osama bin Laden, claimed that their violence was justified as self-defense under their interpretation of the Islamic laws of war. In 2014, however, we’ve seen radical Islamists ignoring those laws altogether. From Islamic State to Boko Haram to the Pakistani Taliban, the killers seem unconcerned to justify their actions in terms of Shariah — and this development demands careful attention to understand where the jihadis are going. Before you say that you don’t care what rationale terrorists give for their actions, recall that understanding terrorism is a necessary prerequisite to combating it.

How Hockey Got the Mumps

An op-ed by Cass R. Sunstein. Over the past two months, the National Hockey League has experienced a baffling outbreak of mumps. Thirteen players are said to have it, and there’s no telling when the outbreak will end. It is a story that seems to have stepped from the mid-20th century…By 2012, the number of reported cases shrunk to 229. Mumps has hardly been wiped out, but in terms of public health, the improvement has been nothing short of spectacular…The success story is worth underlining because both Canada and the U.S. are now experiencing an anti-vaccination movement, limited to a small part of the population, but nonetheless worthy of concern.