Category Archives: Opinion

Commentary by members of the Harvard Law community.

From the Print Edition / Opinion  /  April 3, 2015  / 

Letter to the Editor: Further in Defense of Dershowitz

To the Harvard Law Record: I see that the controversy swirling around HLS Professor Emeritus Alan Dershowitz, and the sensational allegations made in legal papers filed in federal court in Miami, continue unabated, nationally and in the pages and the on-line site of the Harvard Law Record. I had hoped that my comments (published in your print edition of March 12th) would be the last that I would have to say on the matter, but I feel compelled now to make two additional points which must be borne in mind by those who are demanding that Dershowitz disclose the documentary evidence that he has said he possesses that would put the lie to the allegations of his involvement in abuse of an underage girl (now a 31-year old adult). I have known Professor Dershowitz since his and my arrival at HLS in 1964 – he as professor, I as student. … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

Shatter the Ceiling Annual Report

1L Participation at HLS: A 1 Week Long Snapshot Gender Breakdown of Normative Measures of Success at HLS

From the Print Edition / Opinion  /  April 3, 2015  / 

Confrontation

The Supreme Court has confused the right to confrontation with the right to cross-examination. Our constitution’s fundamental right to confrontation is now lost in a swamp of common-law hearsay. Confrontation and cross-examination are distinct rights. The right to confrontation speaks to the quality and legitimacy of the prosecution’s case in chief. The right to cross-examination protects the defendant’s right to defend. The confrontation entitlement for which Sir Walter Raleigh fought was for the prosecution to prove his guilt by producing live sworn witnesses testifying from personal knowledge to his jury. This is the right to be confronted with the witnesses against you. This right, if contravened, is enforced by dismissing the charges at the close of the prosecution’s case-in-chief. It is a rule of production, not a rule of admissibility. It prevents the prosecution from basing its case on hearsay, whether it is ‘admissible’ hearsay or not. Hearsay declarants are … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

What Harvard Law Students Should Know About the Recent Supreme Court NC Dental Case: Arguably the Most Important New Precedent for Public Interest, Administrative, Antitrust, and State Government Law Since 1943

Is that title the product of ubiquitous attorney hyperbole? Or accurate? I believe the decision maybe the seminal example of the “King Wears No Clothes” lesson. Indeed, it has spawned no recognition within the popular press, and is apparently not comprehended by any editorial board from the Wall Street Journal to USA Today. The U.S. Supreme Court case of North Carolina Dental Board v. FTC last month is, for antitrust and state regulatory law, the equivalent of Brown v. Board of Education for education and civil rights. To explain, in 1943 the same Court decided the seminal case of Parker v. Brown. It held that federal antitrust law applies, as a matter of supremacy, to matters affecting interstate commerce (pretty much everything). But an exemption was made for what is termed “state action.” That is, a state regulatory agency could arrange what would otherwise be an antitrust offense. Such a … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

What Harvard Law Students Should Know About the Torture Lawyers: What Will They Tell Their Children?

In Robert Bolt’s play, Man for All Seasons, Sir Thomas More is condemned to death for denying the legitimacy of the king’s divorce. The only witness against him is Richard Rich, an ambitious young lawyer who, by false swearing, dooms More and damns his own soul for all eternity. As More struggles to understand why, he learns that Rich has just been appointed Attorney-General for Wales. “For Wales?” he asks the young man. “Why Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales?” I think of Richard Rich each time I read of another lawyer who has disgraced himself for power or preferment. Indeed, I have invented the “Richard Rich Society” in my mind for just such people. Their numbers include the Justice Department lawyers who authorized the kidnapping, torture, indefinite detention, and assassination of alleged terrorists by the … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

What Harvard Law Students Should Know About Reining In Corporate Welfare

First, the bad news: there is a serious public policy problem at which lawyers, when swinging for the fences, have repeatedly struck out. Now the good news: lawyers, when working with community organizers and labor leaders, are winning terrific precedents. The policy problem is corporate welfare, especially when states and localities (not counting Uncle Sam) spend an estimated $70 billion per year on “economic development incentives” that are all too often windfalls extracted when companies exploit federalism to whipsaw states against each other. In a Darwinian corporate version of rising inequality, the problem has gotten much worse the past decade, with the soft economy creating more desperate politicians. Whereas we used to count about 10 “megadeals” per year (essentially deals costing taxpayers nine or ten figures each) for a total of $3 billion annually, we are now counting about 20 megadeals per year costing more than $6 billion. Boeing’s record … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

What Harvard Law Students Should Know About the Rights of Employees to Litigate Claims of Wrongful Discharge

The common law followed by most states is the so-called “employment at-will” doctrine – that employees can be terminated for any reason. There are many exceptions to the “at-will” doctrine. Discharges in violation of federal or state statutes, for example non-discrimination statutes such as Title VII of the Civil Rights Act, are forbidden. Further many employment agreements, for example collective bargaining agreements applicable to union shops, forbid discharges without “just cause”. Victims of discriminatory discharge because of race, gender etc., and protected by statute can often enforce their rights by filing charges with the appropriate governmental agency, for example the Equal Employment Opportunity Commission (EEOC) or National Labor Relations Board (NLRB). Where an employment agreement forbids unjust discharge victims may obtain relief for breach of contract under state law in state court or in federal court where there is diversity of citizenship. Wrongfully discharged employees covered by a collective bargaining … Continue reading

From the Print Edition / Opinion  /  April 3, 2015  / 

Trolling the Harvard Law Review Competition

Journals are a funny thing. Students by and large hate editing them, and professors by and large hate handing over their careers to the whims of know-nothing students. We naturally have come to the conclusion that students should edit articles about which they are ignorant, and professors must spend endless waking hours wondering if they have pleased the 3Ls gods that hold the fate of academia in their hands. Of course, both sides perform monumental intellectual feats just for the chance to participate in this system. The pinnacle of these intellectual feats is none other than our own Harvard Law Review writing competition. Every year, hundreds of 1Ls (and a few, desperate SJDs) line up in Hauser Hall after the worst academic year of their lives to go through one final ordeal of self-flagellation: a week-long battle with a 1500 page package covering the narrowest questions of law in the … Continue reading

From the Print Edition / Opinion  /  March 24, 2015  / 

Gender Disparities in Law School Participation Remain

Gender disparities in law school performance remain pervasive at even the most elite schools. Studies evaluating grades from the past two decades at both Stanford (2001-2012) and Yale (1995-96, 1997) Law Schools found that women receive lower grades and, at Yale, a lower percentage of clerkships. [1] Research suggests that grades and participation may be correlated. Yale law students in 2011 collected classroom data from 21 classes of different sizes, which included how often men and women answered cold-calls, volunteered comments, and interrupted other students. [2] When adjusted for attendance, only 42.8% of “participation events” came from women. [3] Harvard is no better. HLS alum Adam Neufeld evaluated student performance from 1997-2003. [4] He found that men received higher grades in 1L classes and were more likely to graduate with latin honors. [5] Moreover, in a study monitoring 32 1L courses for 190 total class meetings in Spring 2003, [6] … Continue reading

From the Print Edition / Opinion  /  March 24, 2015  / 

Harvard Heat Week: Student Call to Action

From April 13th to 18th, Harvard students, faculty, and alumni will assemble in Harvard Yard for Harvard Heat Week, a week of action for fossil fuel divestment. As climate change threatens to become the worst humanitarian crisis that humans have ever faced, we ask all students to join us in the movement for climate justice. Divest Harvard calls on Harvard to immediately divest from major fossil fuel companies. In this historic moment, Harvard confronts a choice that will influence its legacy for hundreds of years. Will it continue to endorse the fossil fuel industry’s destructive practices? Or will it act to ensure a livable future for young people, future generations, already-marginalized communities, and all those on the frontlines of climate chaos? Why escalated action and civil disobedience? For three years, Divest Harvard has worked to build a movement on campus using a wide range of tactics. Over 230 faculty members, … Continue reading