Interested in writing? Contact Annika Boone (VP of Speakers) at aboone@jd19.law.harvard.edu for more information and to apply.


Steven Calabresi (9/20)

By Winston Shi, J.D. ’19

On September 20, Federalist Society co-founder Steven Calabresi (Northwestern) debated with Professor Jack Beermann (Boston University) about what Professor Calabresi called “Three Infirmities in the Administrative State.”

Professor Calabresi began by writing down Article 30 of the Massachusetts Constitution, which enshrined the separation of powers as a bedrock principle of democracy. Explaining that the Framers saw separation of powers as essential to “a government of laws and not of men,” he argued that administrative law has tilted the balance of power from Congress to the President, because the administrative state is not truly independent from the Executive. While Professor Calabresi was careful to avoid calling for the abolition of any specific agency, he deplored the “hyper-presidentialism” of the modern administrative state. To reform the administrative state, Professor Calabresi made three substantive proposals.

  1. Reviewing agency rulemaking

Under the current administrative law framework, agencies make law, and the delegation of regulatory power is the delegation of the power to make law. Professor Calabresi argued that in declining to use the non-delegation doctrine to avoid engaging in policy, the Supreme Court permits the administrative state to excessively engage in policy. He endorsed the proposed Regulations from the Executive in Need of Scrutiny (REINS) Act, and in particular the requirement that regulations with a $100 million economic impact should trigger Congressional review. He would have gone even further, because such regulations also ought to trigger the non-delegation doctrine.

Professor Calabresi suggested that putting separation of powers-based checks on agencies would also improve business confidence, because under the current President-dominated administrative state, regulations could differ wildly under different Presidents, creating uncertainty and eroding business confidence.

  1. Giving Administrative Law Judges life tenure

Currently, ALJs – a core feature of the administrative state – do not have true independence, which goes against the spirit of separation of powers. Their decisions are subject to agency review, and they even share office space with agency enforcement personnel. “Whether constitutional or not,” Professor Calabresi said, non-independence is a bad idea, citing the fact that our peer nations generally separate administrative law courts from agencies. He proposed supporting ALJ independence by giving ALJs tenure for good behavior, District Judge-level salaries and resources, separate courthouses.

  1. Restoring the civil jury right in administrative cases

Continuing the theme of making ALJs more like Article III judges, Professor Calabresi also recommended clarifying the position of ALJs in the federal system. He would allow ALJ decisions to be appealed directly to district courts, and limit their jurisdiction to the areas in which they are specialized. But most importantly, he suggested that current procedure violates the right to a civil jury trial: in other words, the people, through juries, ought to have a greater say in the administrative system.

Response

In response, Professor Beermann argued that the administrative state is the state that Congress wanted and that it got. “No agency has the power to do what Congress hasn’t authorized to do,” he explained. “Congress can always take back what it delegates….This is not a symptom of the administrative state. This is a symptom of Congress.”

He also said that the judiciary should leave agencies be, as the non-delegation doctrine turns judges into activist “philosopher-kings…who would like to impose” their own visions on society. Systems like the REINS Act and the legislative veto sounded like great ideas, he admitted, but got in the way of regulation and its “massively positive social effects.” (Professor Calabresi responded that the administrative state could hardly be said to move quickly to begin with.)

The two professors agreed on the bottom line, that elections should have consequences, but disagreed on what exactly that should mean for the administrative state. Professor Beermann argued that while lodging the administrative state within the executive might create lurches in policy, it was also more democratic. Professor Calabresi argued that when agencies decide big questions like net neutrality and climate change, they may decide in ways that are different from those of the people. “Elections should have consequences,” he said. “It’s just how big the consequences should be.”


Can You Have Your Cake and Keep the First Amendment Too? A Conversation with Sherif Girgis and Ben Klein on Masterpiece Cakeshop

By Aaron Fenton, J.D. ’19

Are cakes a second-class form of expression? On September 15th, religious liberty scholar Sherif Girgis and LGBT rights advocate Ben Klein attempted to answer this question with regard to the upcoming Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Girgis equates cake-creation to artistic expression. He believes that, should Masterpiece Cakeshop be required to create cakes for events regardless of the message or connotation, it would threaten the core of First Amendment protections against compelled speech. This could lead not only to the baking of a myriad of offensive cakes, but also to the forced creation of offensive paintings and other art. Girgis contends that his view is even more defensible because a wedding cake exists to celebrate the very union to which the artist objects. Indeed, the baker could legally organize a protest just outside the venue, but if cakes aren’t treated as speech then he would still be required to bake the pastry that sits so near the center of his protest.

While Girgis examined wedding cakes as a form of artistic expression, Klein argued that this classification misconstrues the true issues involved. “This case is not about free speech,” Klein began. “This case is about denial of access to services provided to the public.” As such, Klein believes that Masterpiece Cakeshop is a matter of non-discrimination law—rather than First Amendment law—and that, were the cake denied on other grounds such as race, then it would be recognized as discrimination from the outset. By not embracing this parallel, he claims, Girgis’s position makes three mistakes: it fails to understand the extent of the harm caused by discrimination, does not correctly recognize the LGBT community as a class still in need of protection, and mischaracterizes the refusal of cake-creating services as being different from other discrimination.

“Live and let live,” said Girgis in relation to forced expression against one’s religious beliefs, yet considering the resulting harm to an LGBT couple’s dignity, identity, and humanity, Klein believes that this specific religious belief is one which cannot stand. In the end, the court has two options: recognize baking as a form of artistic expression under the First Amendment, or hold this service to the same anti-discrimination standards as other, less expressive, service professions.


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Judicial Restraint & the Rise of American Populism

By Asher Perez, J.D. ’19

On October 27th, Mr. Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, spoke at HLS regarding judicial activism on the Roberts Court and its impact on the 2016 election cycle – including the popularity of Donald Trump. Showing the rise of judicial restraint as a form of judicial activism that had been embraced by the right, Mr. Shapiro argued that judicial restraint actually causes a decrease in respect for institutions and is partially responsible for the political upheavals taking place. Specifically, that the Supreme Court’s decision, and Chief Justice Roberts swing vote, in NFIB v. Sebelius gave rise to Donald Trump as the current Republican nominee marshaling authoritarian populism generated from the politically motivated vote and opinion.

Mr. Shapiro mapped the rise of judicial restraint as originating from the progressive left in the 1900’s; J. Thayer in Plessy v. Ferguson (defer to state legislatures), J. Holmes in Lochner v. New York and Buck v. Bell (defer to legislatures on eugenics; “If my fellow citizens want to go to hell, I will help them”), and Yale Law Professor Bickel’s views judicial review overruling legislatures as problematic. Mr. Shapiro said that the issue with that is that judicial power isn’t a means to an end, but an enforcement mechanism for the strictures of the Constitution; the judicial power both curtails its excesses as it helps the exercise of the liberties granted in it. Judicial restraint results in a weakening of the Judicial Branch’s power and role in ensuring limited government by failing to check the power of the other government branches. Thus, Mr. Shapiro opined that judges shouldn’t be restrained because their restraint is actually leading to the erosion of the Constitutional values they are trying to advance.

An example that Mr. Shapiro gave of the failure of using judicial restraint as a substitute for Constitutional conservatism was Chief Justice Roberts vote in NFIB v. Sebelius and his failure to strike down the ACA as unconstitutional. Chief Justice Roberts’ finesse in rewriting two main parts of the act and upholding the ACA under the Taxing Clause (something that Congress had not envisioned or considered) showed the fallacy of judicial restraint as an approach. Public trust in the Supreme Court as a neutral arbiter fell after that decision and led to populism that led to the rise of Donald Trump. According to Mr. Shapiro, the solution is for judges to stay true to their values, such as Justice Scalia did in his tenure on the Court, even if it leads to unpopular decisions. The role of the Judicial Branch is to interpret the Constitution and check the power of the other two branches of the government. Only by abstaining from judicial restraint and politically motivated rulings will the public’s trust in institutions and the Judicial Branch be restored.


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Arizona Attorney General Mark Brnovich: Edge of the Sword: On the Front Lines Against Federal Overreach

The Harvard Federalist Society hosted Arizona Attorney General Mark Brnovich on October 13th to discuss his work in combating federal overreach. General Brnovich urged students to think critically about judicial decisions and to recognize that just because people in positions of power have decided a matter, that doesn’t mean a decision is correct. His central message was the importance of the rule of law and, specifically, the importance of the Constitution in law and public policy. General Brnovich’s talk focused on his role as Attorney General but also drew on his tenure as a prosecutor.

Discussing his current work, Brnovich spoke critically of the Obama Administration’s tendency to unilaterally change law. Specifically, he has fought the administration on immigration, on environmental issues, and in federalism disputes. Though he never expected to run for office, his team is more concerned with the rights of Arizonans than fighting any particular issue. He argued that limiting the growth of executive power ought to be important for liberals and conservatives, as the political winds can change without much warning. Student questions touched on climate change and the reliability of scientific consensus.


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Natural Law v. Legal Positivism: Bioethics in Somatic Cell Cloning

By Asher Perez, J.D. ’19

On October 6th, Nik Nikas, the General Council of the Bioethics Defense Fund, spoke at HLS regarding recent developments in law and bioethics and the intersection of law and morality in relation to them.  Showing the advancement of technologies relating to cloning in mammals (both human and animal), Mr. Nikas argued that there is a danger to the moral fabric of society in allowing unrestricted experimentation with cloning that destroys human embryos.

Mr. Nikas referenced the Nuremberg Trials as a point in history where natural law and legal positivism conflicted.  Theoretically, the Nazis had a valid argument in that they had violated no laws and that the Nuremberg Trials were applying newly established laws to past actions (ex-post facto law).  Nonetheless, the Nuremberg Trials were essential to mankind in establishing a higher level of responsibility, natural law, where morality superseded law.  As well, Mr. Nikas brought in Dred Scott v. Sanford and Buck v. Bell as cases illustrating the shortcomings of legal positivism.

Lastly, Mr. Nikas spoke about the technological advancement in somatic cell cloning where scientists have been able to clone animals using only the female chromosomes by transferring the nucleus of a somatic cell (most cells in the human body) into an empty egg.  As recent as two years ago humans have been cloned as well at the embryonic stage.  The issue with cloning at the embryonic stage is that the two embryos get destroyed in the process and since life begins at conception, (referenced California v. Peterson where Mr. Peterson was charged with double murder/homicide of his pregnant wife), this raises legal and ethical questions about this type of cloning.  At the end of his lecture, Mr. Nikas mentioned the other ethical dilemmas of somatic cell cloning such as the ownership of the cells, post-mortem cloning, hybrid cloning (mixing human and animal cells) and a three-parent embryonic cloning that occurred in Mexico this past year.


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Supreme Misconduct? Justice Ginsburg against Donald Trump

By David Phillips, J.D. ’18

The Harvard Federalist Society kicked off the 2016-2017 academic year on September 15 by hosting Ed Whelan, President of the Ethics & Public Policy Center, to discuss Justice Ruth Bader Ginsburg’s recent comments on Donald Trump.  Mr. Whelan — a former clerk for Justice Scalia and a frequent contributor to the National Review — argued that even though the Code of Conduct for United States Judges is not binding on Supreme Court Justices, Justice Ginsburg clearly violated the their ethical norms.  Justice Ginsburg explicitly took a position of opposition to a political candidate, and should recuse herself from any matter involving Donald Trump’s election interests.  For Mr. Whelan, this should include her abstaining from consideration of stays on voting laws—like those in North Carolina and Michigan that recently came before the Court.

Mr. Whelan gave a limited defense of Justice Ginsburg, in that giving voice to political outcomes is consistent with her jurisprudence.  Her subsequent statement of regret for her comments demonstrates, contrary to some pundits, that Justice Ginsburg was not purposely risking her legacy to save the country.  Finally, Justice Ginsburg’s recent willingness to publicly opine on politics may go hand-in-hand with her increased celebrity status as the “Notorious RBG.”

Judicial & Legal Ethics Professor Andrew Kaufman took an even more restrictive view of the proper role of judges outside of the courtroom.  For Professor Kaufman, judges speak publicly too much in general, even on strictly legal matters.  Judges should think hard before participating in actives like moot courts where they may inadvertently tip their jurisprudential hands.  Student questions touched on other past examples of potential conflicts of interest involving Justice Scalia and Justice O’Connor.


FedSoc-Judge Preska

Chief Judge Preska: The Sad State of the First Amendment on College Campuses

By: Taylor Thompson, J.D. ‘18

On March 28th, Chief Judge Loretta Preska of the U.S. District Court for the Southern District of New York (SDNY) spoke at HLS on the disconcerting rise of free speech zones, safe spaces, and censorship at American universities. Placing such developments in historical context, Judge Preska argued that they cut against the very concept of free speech and ought to be resisted in any form.

Chief Judge Preska pointed to last year’s terrorist attacks on the offices of the French satirical newspaper Charlie Hebdo as a reminder of the distinctive and important place that the ideal of free speech holds in Western societies, the United States above all. Even before the Founding, the United States has had a tradition of expanding and defending the right to speak freely without government interference or fear of reprisal. Chief Judge Preska referenced the case of John Peter Zenger, a German-American printer accused of libel in 1735 for satirical attacks on the royal governor of New York. Zenger’s lawyers successfully defended him, in part by arguing that truth should be a defense to libel, thereby establishing a principle of American free speech jurisprudence that would carry through to landmark modern cases like New York Times Co. v. Sullivan.

Throughout her remarks, Chief Judge Preska emphasized the need to guard vigilantly against restrictions on speech, and she identified university campuses as the most troublesome place such censorship is taking place. A “free speech zone,” Chief Judge Preska believes, is a euphemism that allows administrators (and overzealous campus protesters) to marginalize unpopular views. She also believes that campus rules on speech create absurd results. She cited the case of two students who sued the University of Hawaii in 2014 after being told not to pass out copies of the Constitution outside speech zones on campus. The rule was later changed to permit the students’ activities, but as Chief Judge Preska pointed out, “What’s most shocking is that the rule was ever anything else.”

While universities attempting to limit speech is bad enough, the hecklers’ veto is even worse, Chief Judge Preska argued. Protesters denied former Secretary of State Condoleezza Rice and former New York Police Commissioner Ray Kelly the chance to speak at Rutgers and Brown, respectively, in what Chief Judge Preska views as a startling reversal of campus attitudes toward speech, debate, and the exchange of ideas. “Back in the day,” as she put it, students demanded unvarnished public debate, without restrictions, limitations, or coddling of the kind now expected in some quarters. Chief Judge Preska encouraged those in attendance to resist such censorship, whether it comes in the form of social pressure, government or university rulemaking, or even violence.


S&C

Jeff Wall of Sullivan & Cromwell Discusses Whether the Roberts Court is Pro-Business

By: George Maliha, JD 18

Amid growing criticism that the Roberts Court is “pro-business,” the Federalist Society hosted Jeff Wall, co-head of Sullivan & Cromwell’s Appellate Litigation Practice, to provide a counterargument to this narrative. At the March 21st event, Mr. Wall – a former clerk to Justice Clarence Thomas – focused his attention on a recent empirical article claiming that business was faring better at the Court in recent years. His critique touched on several of the Court’s areas of cutting edge jurisprudence, including employment, arbitration, administrative, and IP law.

Mr. Wall sought to place the Court’s recent decisions in a larger jurisprudential context. Providing statistics of his own, he demonstrated that the “win” rate for business was not significantly different from other litigants. In fact, some of the so-called “pro-business” decisions were quite narrow and minor rulings. Others had more to do with the Court’s efforts to reform and improve law such as in pleading or jurisdiction while some were simply part of the process of common law development. Of course, Mr. Wall acknowledged some major “pro-business” victories in recent years but attributed that small group to better organization and case selection by litigants. Indeed, Mr. Wall noted that the Court docket was increasingly shrinking – even as litigants from both pro-business and other interest groups have devoted more resources to selecting and developing cases.

Mr. Wall and Judson Littleton – also of Sullivan & Cromwell’s Appellate Practice and himself a former clerk to Chief Justice John Roberts – answered questions from the audience and provided general career advice to attendees.


Lorence

Trinity Lutheran and Government Hostility to Religion

By Jimmy Chalk, JD 18

On March 2, Jordan Lorence, Senior Counsel for Alliance Defending Freedom, spoke with the HLS Federalist Society about Trinity Lutheran Church of Columbia, Inc. v. Pauley, a religious liberty case set to be argued at the U.S. Supreme Court in October. Lorence is organizing the amici effort in support of the plaintiff. Responding was Noah Feldman, Harvard Law School’s Felix Frankfurter Professor of Law, and author of Divided by God, America’s Church-State Problem–and What We Should Do About It.

While recycled tires and religious liberty would appear to have little in common, Trinity Lutheran brings them together, in a case unlike many of the religious liberty cases the court has heard recently, where plaintiffs seek exemption from statutes they believe violate their religious liberties, as in Burwell v. Hobby Lobby Stores. Here, the plaintiffs seek to compel the state of Missouri to treat them as it would any other non-religious organization.

The plaintiff in the case is Trinity Lutheran Church of Columbia, Missouri, which sought to participate in a Missouri state program that subsidizes the installation of rubber surfaces made from recycled tires on playgrounds that are open to the public. While the church met all of the necessary criteria for participation, Missouri opted not to extend the grant to the church, on the basis of its religious affiliation. The church brought suit but met with little success at the district court or appeals court.

Lorence says the key issue in the case is the scope of the Court’s ruling in Locke v. Davey, in which the Rehnquist Court permitted the state of Washington to forbid state scholarship funds from being used to pay for certain theological studies. In its decision, the Court cited the “play in the joints” between the Free Exercise clause–the provision of the First Amendment that guarantees free exercise of religion–and the Establishment Clause–which forbids Congress from making any law respecting an establishment of religion. The tension between these provisions has long been a source of controversy. The 8th Circuit Court of Appeals based its decision on the Supreme Court’s ruling in Locke v. Davey, and Lorence said that lawyers for the plaintiff will seek to convince the court to constrain Locke’s scope.

Professor Feldman noted the immense strides that religious organizations have made in expanding their rights under the Free Exercise clause; convincing courts, for example, that states are permitted to allocate funds to religious institutions including church schools through voucher programs. He believes, however, that attempting to apply equal protection principles to churches by overriding the Establishment Clause will prove difficult and that the Court is unlikely to constrain the scope of Locke in a way that will satisfy the plaintiffs in this case.


Nixon photo

The Criminalization of Politics

By: Nick Varone, JD 18

Geoff Shepard, a former Domestic Council staffer under President Nixon’s administration and member of President Nixon’s Watergate defense team, believes that President Nixon was the victim of underhanded prosecutorial tactics and vitriolic partisan politics. In a talk to the Federalist Society on February 18th,  entitled “The Criminalization of Politics,” Shepard related President Nixon’s lifelong opposition to the “Liberal Eastern Establishment” epitomized by Harvard University and its graduates. Beginning with then Representative Nixon’s dogged pursuit and exposure of Alger Hiss, a man Shepard described as “everything Harvard stood for,” as a Soviet spy, President Nixon’s career was constantly in conflict with Harvard University graduates and democratic adversaries. Half of the lawyers of the Watergate Special Prosecution Force had graduated from Harvard University and the top seventeen lawyers in the Special Prosecutor’s Office had worked in President Kennedy and President Johnson’s Department of Justice and were ousted after Nixon won the election. After extensive research and analysis of personal memos, Shepard has reached the conclusion that the prosecutors in the Watergate cover-up trial decided to cheat, secretly meeting with Chief Judge John Sirica of the District Court for the District of Columbia, making a pact to bring indictments at such a time that the Judge would be able to preside himself over the trial and even surreptitiously meeting with Judge Bazelon of the D.C. Circuit to attempt to stack the deck for appellate reviews. Shepard described this as a “hostile takeover without an election” that could happen again if the responsible individuals aren’t held accountable. He contends that the descendants of the defendants should seek to vindicate their ancestors in court and that America owes Richard Nixon an apology.

In broadly responding to Shepard, Chris Robichaud, Lecturer in Ethics and Public Policy at the Harvard Kennedy School of Government, praised him for reevaluating an agreed-upon theory in the quest for truth. Robichaud contends that it’s necessary to critically evaluate even the most orthodox historical and political understandings instead of accepting them as gospel. Approaching the Watergate scandal from the perspective of political and governmental theory, Robichaud explained that the partisan polarization and ideological narrative of “good vs. evil” and seeing the other side as genuine enemies leads to an atmosphere wherein individuals become increasingly likely to resort to extralegal means to undermine political adversaries. Robichaud and Shepard agree that this trend emerged from the Nixon presidency, and Robichaud predicts that it is a trend that will continue, without solution, until America “beats itself up” enough to reconcile or there is a substantial national threat. However, using a few quotes by President Nixon concerning presidential powers, Robichaud noted that rather than prosecutorial attacks on the presidency, he is more concerned with the powers vested in the president and whether the Executive continues to be a balanced governmental branch.


suk pic

Professors Jeannie Suk and Jon Hanson on The New Student Protest

By Stephen J. Hammer, JD18

On Tuesday, February 9th, the astonishing New Hampshire primary victories of Donald Trump and Bernie Sanders revealed an America united in its deep frustration with the current political system but utterly at odds about virtually everything else. The next day, at Harvard Law School, the Federalist Society hosted a discussion about one manifestation of this remarkable season of discontent: the student protest movement.

Speaking to an overflow student audience, HLS Professor Jeannie Suk discussed the student protest movement at HLS and her recent New Yorker article, “A New Family Feeling on Campus.” In response, HLS Professor Jon Hanson offered a critique of what he termed the “protest against the protest.”

Professor Suk noted that while the campus protesters of the 1960s and 70s sought to limit college administrators’ control over student life, today’s protest movement wants the opposite: assurance that university officials will provide students with the safety and security of home. She also argued that today’s protest movement at HLS differs from those at others institutions around the country. At HLS, Professor Suk said, the protest is uniquely focused on a structural critique of the legal system as a whole, as reflected in its demand to restore the radical perspective of the Critical Legal Studies movement to the center of legal education. Professor Suk, commending the intellectual focus of the HLS student protest movement, stated, “I actually prefer the HLS protests to the ones across the country. They differ in substance. They differ in tone.”

Professor Hanson largely echoed Professor Suk’s thesis, and expanded her argument into a criticism of those who “protest against the protest.” Citing Professors Alan Dershowitz, Peter Shuck, Richard Epstein, and Randall Kennedy as prominent critics of the protest movement, Professor Hanson claimed that these professors exemplify what is wrong with law school because they fail to understand the injustice of the legal system as a whole. Professor Hanson claimed that only by “pushing back” against those who view the protestors in this unfavorable light can the fight for systemic justice make progress.

Left unspoken in the discussion was the conservative counter-argument to the student protestors’ radical critique: that Harvard Law School, despite its flaws, is a noble institution that must be unapologetically defended if it is to be preserved. As Professor Kennedy recently stated, “Harvard Law School is not the enemy. And if you are constantly treating Harvard Law School as the enemy, you’ll make it the enemy.” In this new political era of deep frustration and bitter disagreement, Professor Kennedy’s courageous plea for humility and perspective is sorely needed.


FedSoc-Barnett

Defending Judicial Engagement

By: Taylor Thompson, JD 18

On January 28th, Professor Randy Barnett of Georgetown University Law Center spoke at Harvard Law School about Williamson v. Lee Optical Co. and the origins of substantive due process doctrine. Tracing the history of judicial review from its origins in the jurisprudence of Chief Justice John Marshall, Barnett distinguished current rational-basis scrutiny from past approaches to the protection of liberty interests under the Fourteenth Amendment.

Barnett argues that legislatures may act in bad faith; they may restrict rights for reasons other than those stated by lawmakers. When that happens, Barnett believes, our republican constitution enables citizens – the ultimate source of sovereignty – to challenge legislators’ bad faith exercise of power. Rather than making “a presumption of liberty,” as he puts it, post-New Deal courts, following the precedent of Williamson, have been able to shift the burden of proof onto the aggrieved party. Very often, in his view, that party (as in Williamson) is an upstart disruptor competing against established interests. If a court finds even a hypothetical basis for justifying the state’s exercise of its police powers, it will be deemed to stand up to rational-basis scrutiny, a presumption which Barnett believes not only permits legislatures to engage in bad faith exercises of power, but which also is at odds with the historical approach to the federal government’s regulation of the rights of citizens.

In responding to Barnett’s views, Professor Richard Fallon of Harvard Law School suggested that while Williamson may be the “exemplar for deference” to Congress, it is not necessarily the guide to understanding how courts approach substantive due process. In other words, Williamson may not be as important as Barnett argues. The key disagreement between Fallon and Barnett, Fallon suggested, is that Fallon views some rights – he called them “fundamental liberties” – as more important and more deserving of the “heightened scrutiny” applied by courts under substantive due process doctrine. Meanwhile, Barnett, as a libertarian, is less inclined to differentiate between rights and instead views any government regulation as a potentially grievous moral wrong demanding a much higher standard of review.


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The Importance of State Constitutional Law

By: David Phillips, J.D.  ‘18

On January 13, a discussion of state constitutional law opened with an analogy: if the Harvard basketball team had two opportunities to make a game-winning shot to win the national championship, would they ever restrict themselves to only making one attempt? Judge Sutton of the United States Court of Appeals for the Sixth Circuit began by arguing that this irrational basketball decision is akin to what most lawyers do when they make constitutional challenges at the federal level but not at the state level. Apart from litigation tactics, Judge Sutton argued that robust state constitutional law practice is vital to the health of the American legal system, and should be part of standard law school curriculum.

As of 2007 only 20 American law schools offered courses in state constitutional law, and Judge Sutton rejected certain accounts for why this has been the case. Law schools do not unequivocally favor federal law over state law, as most foundational courses (e.g. torts, contracts, etc.) are built on state precedents. Neither is the dominance of courses aimed at bar passage to blame for the lack of state constitutional law, as many law schools still find room for classes on cinema, Shakespeare, and neurobiology. Although many law professors clerked at the federal level, a relatively untouched area like state constitutional law should be a boon to many in their quest for tenure. Law schools would do well to incorporate state constitutional law into the body of their curriculum.

State constitutional law is important in Judge Sutton’s view first because clients are results-oriented and want to maximize opportunities to win their case. Further, the limited scope of state court decisions gives judges greater freedom than those at the federal level to make innovations in the law and to provide future remedies. Creating these changes at the state level is also one of the best ways to influence federal jurisprudence, a viable approach for many theories of constitutional interpretation. Finally, for Judge Sutton, the concern that elected state judges are less free to uphold counter-majoritarian rights than appointed federal judges is overblown. The federal confirmation process is also majoritarian, and the high bar for undoing federal court decisions indicates that the American legal system is better off being innovative at the state constitutional level. Student questions touched on the tension between adopting state decisions at the federal level and allowing states to be self-determining, and led to a discussion of the increased role of the state solicitor general.


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Title IX and the National Rape Debate

By: Nicholas Varone, JD ’18

Heather MacDonald, the Thomas W. Smith Fellow at the Manhattan Institute, doesn’t see a rape epidemic occurring on American college campuses. She questioned why, if campus rape is an epidemic, females are still applying to colleges in record numbers, and why, if sexual assault affects one in four or one in five female students and results in a lifetime of negative effects, females graduate college at a rate 23% higher than males. Rather than an epidemic, she contends that “sexual liberation is having a nervous breakdown” stemming from “campus feminists’” attempts to reconcile the previous default rule of “no” to premarital sex in the current era defined by a backdrop of permissiveness to premarital sex. This has manifested in neo-Victorian, contract-like campus sexual consent rules, a return to “a Victorian ethos in which the male is presumed the guardian of female safety,” and a disciplinary process that grants “an opportunity to replay every grope and caress before a tribunal of voyeuristic administrators.” Mac Donald believes that what is happening on campus is not rape, but complex, ambiguous and attributable in some part to women who feel uncomfortable or embarrassed around males with whom they had a one night stand. She conceives of sex as “the very realm of the irrational and the inarticulate,” wherein “doing something that you were not certain about does not make it rape, it makes it sex.” Though Mac Donald believes the solution not to be more legal process, but more personal responsibility and prudence, she is a proponent of routing all rape allegations through the criminal justice system where they will be reviewed according to a “proven beyond a reasonable doubt” standard.

Professor Erin Buzuvis, director of the Center for Gender & Sexuality Studies at the Western New England University School of Law, responded by first agreeing with MacDonald that rape is not an epidemic on college campuses. Nevertheless, she quickly countered that it is endemic, a “means of sustaining a patriarchal power structure.” Prof. Buzuvis argued that no matter what the numbers say, campus sexual assault needs a comprehensive response involving primary prevention education, victim support services, and a process for holding individuals accountable for acts of sexual assault and rape that do occur. Instead, Prof. Buzuvis said, what is on the horizon is legislation, such as the Safe Campus Act, that would hamper universities’ investigative abilities by disallowing campuses from investigating sexual assault allegations unless the reporting party has also complained to the police. Prof. Buzuvis, disagreeing with Mac Donald, contends that the logical solution to campus sexual assault is for campuses to take the problem seriously and implement a disciplinary procedure that fairly balances the rights of complainants and respondents, not to route the cases through the criminal justice system. Furthermore, she is in favor of a “preponderance of the evidence” standard. While someone could be falsely disciplined under such a standard, the risk and consequences are much smaller than even one missed opportunity to hold someone responsible for their sexual assault. She maintains that individuals must be held responsible as a way of establishing consent as a cultural norm to take into their adult lives. Despite the intense debate surrounding this topic, Prof. Buzuvis is nevertheless hopeful that it is possible to have a prompt and equitable response to reports of sexual assault.


 

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Principled Prudence and Planned Parenthood

By: Taylor Thompson, J.D.  ‘18

Dr. William B. Hurlbut, M.D., Consulting Professor of Neurobiology at the Stanford Medical School and a member of President Bush’s Council on Bioethics, gave a presentation entitled “Principled Prudence and Planned Parenthood” at the Harvard Law School on November 10. The event was co-sponsored by the Harvard Federalist Society and the Catholic Law Students Association.

Dr. Hurlbut began his talk with an overview of the undercover videos released by the Center for Medical Progress, which, among other things, showed Planned Parenthood officials discussing the harvesting of fetal organs and tissue for biomedical research. The videos set off a media firestorm, in part because they included graphic images of aborted fetuses. “They were human beings in their earliest stages of development,” Hurlbut said. “There’s no getting around that—human beings reduced to raw materials for research projects.”

Without a legal background, Hurlbut reads Roe v. Wade and other abortion cases from the perspective of a physician and an ethicist. The widespread focus on concepts like the potentiality of life and fetal viability are, in his view, discordant with firsthand knowledge of biomedical science. As a member of the Council on Bioethics during the second Bush administration, Hurlbut participated in the debates over federal funding for embryonic stem cell research. Those debates, he claimed, formed the starting point for the current controversy over aborted fetal tissue. He noted that it is very hard to relate to an embryo, and that that poses a fundamental problem in terms of how we form our moral intuitions. “We need to be very thoughtful about where we go as a civilization. Those who choose the beginnings of a road also choose its destination,” he said.

We are only beginning to ask the questions raised by the nexus of abortion and biomedical research. Among these, Hurlbut specifically raised four. Should embryonic research be limited to stem cells, or should embryos be employed in other areas? Will we permit the specific creation of embryos for research purposes? How many embryos is it okay to use? Will we allow research on embryos beyond 14 days of development?

In her response, Dr. Louise King, M.D., J.D., of Harvard Medical School, said she did not see the issue as “black and white.” As a practicing physician who has performed abortions, King said she found it a difficult topic to discuss. Nonetheless, she defended Planned Parenthood, advocated for more access to contraception and sex education, and argued that easier access to abortion would result in fewer medical complications and late-term terminations. She also suggested that, given the current legal status of abortion, the best option is to make use of fetal tissue rather than dispose of it. The critical issue, she argued, is dialogue and continued attempts at finding common ground.

Dr. Hurlbut noted that some commentators and scientists have gone as far as advocating a market in fetal organs, or even farms of artificial wombs, to permit the widespread harvesting of organs and tissue for biomedical research. In closing, he quoted Voltaire: “What is madness? To have erroneous perceptions and to reason correctly from them.” Having erroneously concluded that a “clump of cells” is not a human being, Hurlbut suggests, there is no logical limit to what we may do with those cells. The moral consequences, he said, have been, are, and will be disastrous.

 


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Voting Rights and One Person, One Vote — Who Counts?

By: Nicholas Varone, JD18

Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation’s Center for Legal and Judicial Studies, returned to Harvard Law School for the first time in two years to speak about the “one person, one vote” doctrine and the upcoming United States Supreme Court case Evenwel v. Abbott. Beginning with a historical overview of voting rights and redistricting cases in the Supreme Court, Mr. von Spakovsky traced the evolution of the Court’s reasoning from thinking of redistricting as a purely political question to basically “artificially creating” a rule based on the Fourteenth Amendment that a state has to redistrict every ten years. However, as Justice Thomas has stated, the Court has never explicitly decided what population a state must use when redistricting.

This problem is at the center of Evenwel. Plaintiffs are challenging Texas’s use of total population, including non-citizens, in apportioning state legislative districts rather than voter population, resulting in certain districts being overpopulated or underpopulated with voters by as much as 50% from the ideal. Evenwel, who lives in a district overpopulated with voters, contends that her vote is worth less than the vote of a citizen living in a district that has many non-citizens living there. If the Court rules in Evenwel’s favor and holds that Texas is violating the “one person, one vote” doctrine, it could lead to a “tectonic shift” in political power in the United States. Some experts estimate that such a ruling could cause a shift of eight to twelve Congressional seats from Democrats to Republicans. Mr. von Spakovsky, who has contributed to an amicus brief for this case, argues that the Court should rule for the plaintiffs, stating that “when the value of the vote that Sue Evenwel is casting is worth only half of that of someone from another district, that seems like an issue that the Supreme Court should take up.” Oral arguments for Evenwel v. Abbott are scheduled for December 8, 2015.


 

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Professor Sai Prakash on the American Presidency: “Imperial From the Beginning”

By: Stephen Hammer, JD 18

It’s a familiar story: the American presidency, originally a modest office of strictly limited powers, has grown so dominant in recent years that it would put George III’s ambitions of arbitrary rule to shame. From President Jefferson, who refused to deliver the State of the Union address in person for fear of appearing too monarchical, we’ve arrived at Presidents Bush and Obama, unabashed masters of the veto threat, signing statement, and executive order. The founders would be astonished. Or would they?

On Tuesday, October 27, the Federalist Society hosted University of Virginia School of Law Professor Sai Prakash for a discussion of his new book, Imperial From the Beginning: The Constitution of the Original Executive. Responding to Professor Prakash was Professor Jack Beerman of the Boston University School of Law.

During the event, Professor Prakash argued that, contrary to common perception, the presidential office was regarded as monarchical even at its founding. In fact, opponents of the Constitution, like Virginia governor Edmund Randolph, denounced the unitary executive as the “fetus of monarchy,” and foreign observers, like the Dutch stadtholder William V, believed that the Constitution created “a king, under the title of President.” And though the presidency, as originally created, was weaker than the British monarchy, it was stronger than several other contemporary monarchies, and much stronger than the majority of revolution-era state executive offices. As a matter of historical fact, the founders largely recognized that they were imbuing the new office of president with extraordinary powers.

In response, Professor Beerman largely concurred with Professor Prakash’s argument that the executive branch was endowed with tremendous power at its creation. Pointing to President Washington’s refusal to serve a third term as president, Professor Beerman emphasized the role of historical precedent in constraining the use of presidential power. While the distinction between a “president” and a “monarch” may be primarily symbolic, that symbolism itself served as an important normative safeguard on the exercise of executive authority in the nascent republic and kept early presidents from exploiting the full power residing in Article II of the Constitution.

 


 

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Fritz Schwarz discusses government secrecy

By: Jimmy Chalk, JD 18

On October 23, the Federalist Society and the American Constitution Society hosted Fritz Schwarz, Chief Counsel of the Brennan Center for Justice, to discuss his new book “Democracy in the Dark: The Seduction of Government Secrecy.” Responding to Mr. Schwarz was Harvard Law Professor Jack Goldsmith, former head of the Office of Legal Counsel under the Bush administration.

Schwarz brings a unique historical perspective to his critique of the government’s secrecy practices, having served as a member of the Church Committee, which investigated the excesses of the United States’ intelligence community in the mid-1970s.

Forty years later, Schwarz is even more convinced of the need to counteract the lure of ever-heightening classification policies. He cited the Declaration of Independence (“the consent of the governed”) and Lincoln’s Gettysburg Address (“by the people”) as two key hems of American Democracy that are frustrated by excessive secrecy.

“How can citizens consent without knowledge of what [the government] is doing?” Schwarz asked, adding, “How can you have a government ‘by the people’ without knowledge?”

Surprising to some, Professor Goldsmith agreed with many of Schwarz’s critiques, conceding, “Government officials have every incentive to classify. It’s compelling and seductive to know secrets.”

However, Goldsmith said that he believes the secrecy problem is not as bad as some might think, for two reasons. First, making judgments ex ante is difficult, as officials must balance transparency interests with the protection of sources and methods of intelligence gathering. Second, he says, the United States’ intelligence community is the most transparent in the world.

“No one else tells its people more about what they’re doing than ours,” he said, adding that the intelligence community is kept honest by statutes, by public Congressional hearings, and most importantly, by the press, whose First Amendment protections give it freedom to publish closely held government secrets.

The strongest remarks of the event came from Professor Charles Fried, who referred to The New York Times reporter James Risen as an “arch-press vandal” and National Security Agency leaker Edward Snowden as an “arch-traitor” who makes the professor reconsider his anti-death penalty stance.


 

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Professor Nicholas Rosenkranz on the Structure of Judicial Review: “The Subjects of the Constitution”

By David Phillips, JD 18

On Tuesday, October 20, the Federalist Society hosted Professor and constitutional scholar Nicholas Rosenkranz, who spoke on the structure of judicial review, with application to notable cases. Professor Rosenkranz began by noting a peculiarity in last term’s Los Angeles v. Patel, in which the Supreme Court had to decide if a group could allege the unconstitutionality of an ordinance without reference to any execution of that law that violated their rights. Specifically, it is odd that up until 2015 the court had yet to settle whether facial challenges of this sort on 4th Amendment grounds are permissible. He argued that this lag is due to a fundamental error in how people are taught to think of and speak about constitutional violations.

We often use phrases like “this statute violates the Constitution,” but that way of speaking is technically incorrect: the language of the Constitution doesn’t forbid statutes, it forbids certain actions, and those actions are committed by actors. For Rosenkranz, the first thing to ask of any case then, is “who violated the Constitution?” Once we answer this question, the issue of “when” the violation occurred is much easier to sort out, streamlining the whole judicial review process.

This system simplifies many cases when the court examines the relevant part of the Constitution for what actor it contemplates. When the language explicitly restricts Congressional action (e.g. the 1st Amendment and the commerce clause), constitutional challenges on those issues can only take aim at Congress, not at any executive agency applying a particular law. In these cases, facial challenges without reference to a statute’s application are appropriate. Conversely, when the 4th Amendment speaks passively prohibiting rights from being violated, it contemplates violations by the actor enforcing a given statute. In Patel then, the 4th Amendment challenge should not have been directed at the local ordinance, but at the agency executing the law.

Attendees asked about the possibility of 1st Amendment challenges to facially-neutral laws in Rosenkranz’s system, which state actor would be in violation in those cases, and how his view would approach the pending Little Sisters of the Poor Home for the Aged v. Burwell.


David Lat and Professor Charles Fried

By Trenton Van Oss, J.D. Candidate ’17

On Thursday, September 24th, the Harvard Federalist Society welcomed David Lat, managing editor of Above the Law, to campus to talk about clerkships, HLS students’ pursuit of clerkships, and his new book about the clerkship process, Supreme Ambitions. The event was a lively one, with Professor Fried bringing his usual wit and insight to bear on Mr. Lat’s description of his book and its broader themes—gender, ambition, and short-term vs. long-term moral decision-making, among others. Mr. Lat described the “fetishization” of Supreme Court clerkships and the lengths to which ambitious law students will go to obtain them, while Professor Fried cautioned against this trend and urged students not to encourage it. Professor Fried’s summary of Mr. Lat’s book, as well as his commentary, evoked more than a few laughs and brought a unique perspective from someone who has served as a clerk, hired clerks as a judge, and recommended clerks as a professor. Questions during the Q&A session focused on Supreme Ambitions, but also moved toward Mr. Lat’s work in creating and managing Above the Law. Students asked about how he developed the idea to blog about “legal gossip,” the future of Above the Law, and how Above the Law decides which material to publish and which to keep to itself.


 

Dr. Ryan Anderson Discusses the Future of Marriage and Religious Freedom in the Wake of Obergefell

By: Andrew Ferguson, J.D. Candidate 17

On Monday, September 14, the Federalist Society continued its Speakers Program with a presentation by author Dr. Ryan Anderson on the topic of his new book, Truth Overruled: The Future of Marriage and Religious Freedom. Dr. Anderson began by discussing the majority opinion in Obergefell, arguing that the four principles that Justice Kennedy invoked to overturn the millennia-old definition of marriage did not actually support such a change. He further argued that such a ruling improperly removed the marriage debate from the political realm, as there was no legal basis for the decision.

After looking at the ruling in Obergefell, Dr. Anderson then addressed what he saw as the future of marriage and religious freedom. On the basis of Justice Kennedy’s four principles, he argued, there is no reason to limit marriage to two consenting adults. The opinion’s rationale undermined the principles of exclusivity and permanency in marriage. Dr. Anderson concluded, then, that nothing prevents the concept of marriage from dissolving completely as new categories are included within its definition.

On the issue of religious freedom, Dr. Anderson discussed what he described as three categories of cases: individuals, non-profits, and government employees. He argued that the government does not have any interest in forcing individual cake bakers and photographers to participate in homosexual wedding ceremonies. He likewise argued that the government has an interest in maintaining academic diversity by preserving tax-exempt status for religiously based academic institutions that oppose homosexual marriage. Lastly, he argued that situations dealing with government employees, such as Kim Davis, should be resolved through accommodations for conscientious objectors to homosexual marriage, just as the government has done in the past for other government employees.

Observers raised questions regarding whether homosexuals could be classified as a protected class, what is the role of infertility in assessing government interests in heterosexual marriage, and whether there were any studies that justified the claim that heterosexual parents are better for children than homosexual parents.

 


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Kickoff Event: Former Attorney General Michael Mukasey and HLS Professor Noah Feldman Debate Domestic Government Surveillance

By Trenton Van Oss, J.D. Candidate ’17

On Wednesday, September 9, the Federalist Society kicked off its 2015-16 Speakers Program with a debate between former S.D.N.Y. judge and U.S. Attorney General Michael Mukasey, arguing in favor of domestic government surveillance, and HLS Professor Noah Feldman, arguing against. Judge Mukasey began with a clarification about what the federal government’s surveillance program actually does: collect metadata, with more detailed searches coming only after patterns in the metadata lead top security officials to a reasonably articulable suspicion of a targeted individual. This approach, he argued, is clearly constitutional under the Supreme Court’s articulation of the third party doctrine in Smith v. Maryland (1979). Judge Mukasey argued that the potential for abuse should not render an otherwise constitutional policy unconstitutional, or even necessarily undesirable; the solution for abuse, he argued, is to remove the abusers, rather than remove a legal program that carries the potential to protect American lives.

 

Professor Feldman responded, arguing that the state’s duty to preserve freedom should cast suspicion upon the bulk gathering of metadata of American citizens. That data, he explained, conveys quite a bit of information when carefully analyzed—which is exactly why the government wants it. Professor Feldman was particularly troubled by secret interpretations of the laws authorizing the collection of this data (including a broad interpretation of “relevant,” and thus discoverable, information), which he argued is inconsistent with liberal democracy: though the government can and should keep some things secret, he argued, the law should be kept public. Professor Feldman expressed skepticism about the constitutionality of the government’s surveillance policies, arguing that the constitutional question was more complex than Judge Mukasey let on, and in any event questioned whether the purported benefits of the policies are worth the concomitant sacrifice of privacy.

 

Questions during the Q&A period addressed the consequences of public disclosure of government surveillance techniques for national security, the constitutional meaning of the word “search,” institutional bias in the FISA courts, and who is best positioned to determine that sufficient suspicion exists to pursue further searches.


 

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SCOTUS Preview: An Analysis of the Affordable Care Act and King v. Burwell

By Trenton Van Oss, J.D. Candidate ’17

On Monday, April 20th, the Federalist Society co-sponsored a panel with the American Constitution Society to discuss the oral arguments in King v. Burwell and the Supreme Court’s upcoming decision. Panelists included Yaakov Roth from Jones Day (the firm representing the petitioners), Matthew Hellman from Jenner & Block (who filed an amicus brief on behalf of a group of economists), and Rachel Gargiulo from WilmerHale (who filed an amicus brief on behalf of the HLS Center for Health Law and Policy Innovation).

Mr. Roth provided details of Jones Day’s litigation strategy in the case, which required a “just right” filing time: after the insurance premium amounts were released in order to ensure standing, but before huge amounts of money began to pour into the program and make a change of course difficult. Timing issues, he explained, led the firm to file two cases in separate districts, which ended up creating a circuit split that worked in the firm’s favor when it filed its cert petition in the Supreme Court.

Mr. Hellman defended the government’s position in the case, arguing that the subsidies were a “pillar” of the act necessary for the other provisions to function. He acknowledged that the phrase “established by the State” was an “awkward” way for Congress to refer to an exchange established by the federal government, but stressed that the dire consequences of making federal subsidies unavailable in states without a state-created exchange counseled in favor of adopting the government’s reading. Mr. Hellman noted that neither side had a “knockout” blow for the other’s strongest point: for the challengers, the text of the statute, and for the government, the death spiral that could crush insurance markets in states that fail to create an exchange.

Ms. Gargiulo made an argument for the utility of amicus briefs in general, and policy briefs in particular, in Supreme Court cases. Such briefs, she maintained, illustrate the real-life effects of any decision the Justices might render and help broaden the picture to include potential collateral consequences. Here, Ms. Gargiulo argued, a policy brief was especially important, as it highlighted the impacts a ruling for petitioners would have in the states and made federalism and constitutional avoidance arguments in favor of the government’s reading that much more plausible.

Questions in the Q&A period focused on potential remedies if the Court rules for the petitioners, the consequences of Chevron deference in a context of changing administrations, and the interplay of text and consequences in statutory construction. The Supreme Court is expected to make its ruling within the next few months.


 

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Roger Clegg: The Disparate Impact Approach to Civil Rights

By Blake Lanning, J.D. Candidate ’17

On April 14th, Roger Clegg spoke about the disparate impact approach to civil rights litigation and why it leads to negative results. Mr. Clegg noted that there is currently a case before the Supreme Court that will decide whether it is appropriate to use the disparate impact approach in litigation related to the Federal Housing Act. However, disparate impact is also used under a variety of civil rights statues and is therefore a pressing issue in a number of contexts.

To explain by way of an example, if a businessman were to decide to hire employees based on their having a high school diploma, and the hiring policy were applied neutrally, there is still a chance that the businessman would be exposed to a civil rights suit even absent any discriminatory intent. There might still be a violation of civil rights laws if the hiring policy disparately excluded a protected group, such as African Americans, who might be less likely to have a high school diploma, from the hiring process.

Mr. Clegg argues that the approach is particularly objectionable because if it is proven, statistically, that hiring policies, to rely on one example, have a disparate impact on a protected group, the burden of proof shifts to the defendant. The defendant must undertake to show that there is a legitimate reason for the policy. Furthermore, even if a valid reason is proven, a plaintiff can still win by suggesting an alternative policy that has less of a disparate impact.

Mr. Clegg argued that this approach to enforcing civil rights laws involves the government in a process of second guessing the policies of the private sector and is in fact not necessary. One justification for the disparate impact approach is that it is difficult to find a “smoking gun” that will prove discriminatory intent. However, Mr. Clegg is confident that it is not difficult to detect actual discriminatory intent when it is influencing a decision making process.

Professor Mark Brodin of Boston College Law School responded and argued that the disparate impact approach in fact has a number of virtues.

 


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How Safe is Your Email? Viet Dinh and Vivek Krishnamurthy Discuss the ECPA and Online Privacy Reform

By Trenton Van Oss, J.D. Candidate ’17

On Friday, April 10th, Bancroft’s Viet Dinh traveled to HLS to talk to students about the Electronic Communications Privacy Act. Dinh, who served as an Assistant Attorney General of the United States and was influential in crafting the USA PATRIOT Act after September 11th, argued that the ECPA is “ripe for reform.” Passed in 1986, many of its distinctions among different forms of online communication—for example, requiring a warrant for unopened, but not opened, emails—are now outdated, Dinh argued. With the advent of cloud computing and mass data storage, Dinh believes it is time for the United States to reevaluate its online privacy policies and develop a consistent framework suited for the modern age. He spoke in support of a bill sponsored by Senator Orrin Hatch, which would require a probable caused-backed warrant to view any email and limit extraterritorial application to emails of U.S. citizens.

Vivek Krishnamurthy of the Berkman Center for Internet & Society responded, largely agreeing with Dinh and noting the bipartisan support for online privacy reform. In addition to pointing out problems with ECPA’s defunct approach, Krishnamurthy identified the “elephant in the room” as the lack of a comprehensive system for online privacy. Instead of adopting a policy that could apply across the range of online data and communications, he argued, the United States has taken a piecemeal approach—HIPAA for medical information, FERPA for educational records, even a Video Privacy Protection Act to shield the movies we watch from government eyes—that leaves large gaps and fails to promote a coherent framework for online information privacy.

During the Q&A session, Dinh and Krishnamurthy discussed the potential for reform, the institutional interests at stake, and the factors to weigh as Congress considers the issue.

 


 

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Marisa Maleck and Bob McNamera Discuss Their Work as Appellate Attorneys

By Justin Gilio, J.D. Candidate ’16

On April 6, Marisa Maleck, an associate at Gibson Dunn, and Bob McNamara, an attorney at the Institute for Justice, discussed life as an appellate attorney. Maleck highlighted the benefits of Gibson Dunn’s free market approach, wherein attorneys and partners seek each other out organically. Without a formal assignment system, she explained, associates can create their own opportunities. And Maleck is a perfect example. As a young associate, she has already worked on two Supreme Court cases and drafted merit briefs for cases in every single federal court of appeals. McNamara highlighted similar opportunities for an appellate attorney in the public sector. He explained that at the Institute for Justice, attorneys take cases to trial and then serve as the case’s appellate attorneys. “They throw you into the deep end of the pool.” Not only does this approach provide young associates with excellent learning opportunities, but it also provides many benefits such as the chance to choose one’s clients, get to know them personally, and work on issues that one finds “morally important.”

When asked about what it takes to do appellate work, Maleck and McNamara agreed that judicial clerkships are helpful, but not a necessity. Maleck explained that at Gibson, partners might be more likely to reach out to an associate who clerked. She explained that “if you didn’t clerk, you might just have to work a little harder to get work, but the opportunity is definitely there.” McNamara agreed and described the work assignment system at the Institute for Justice as one based on two criteria, work ethic and a sense of mission. The Institute is smaller than a law firm and more ideologically driven. People with a passion for the work tend to succeed.

At the end of the discussion, Maleck and McNamara offered aspiring appellate attorneys two pieces of advice: (1) take an advanced research and writing class where you can learn to write clearly, cogently, and persuasively and (2) build relationships with professors, coworkers, and supervisors and communicate your career goals to them.

 


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SCOTUS Preview of the Same-Sex Marriage Cases

By Dave Casazza, J.D. Candidate ’15

Today the Harvard Federalist Society, along with the American Constitution Society and Lambda, hosted a panel discussion featuring Professors Noah Feldman and Michael Klarman and Heritage Foundation Scholar Dr. Ryan Anderson. Each discussed their expectations in the gay marriage cases pending before the Supreme Court.

Dr. Anderson began the event. He anticipates a 5-4 ruling and believes the court wants to redefine marriage but will have a difficult time doing so. Prior rulings (Windsor) had linked the dignitarian harm central to the ruling to the federal interference in state laws regarding marriage. Dr. Anderson noted that the Constitution is silent on whether marriage must be a gendered institution; there are good policy arguments on either side. He concluded by noting that a ruling establishing a national right to gay marriage could trigger a backlash comparable to that brought on by Roe v. Wade.

Professor Klarman opened his remarks by observing that, unlike the healthcare cases, there is not substantial uncertainty about what the Court will do. It “would be shocking” if the court did not recognize a right to gay marriage. Professor Klarman believes that Justice Kennedy will vote with the liberals and that the Chief Justice will be genuinely uncertain as to how to vote.

Given this almost certain outcome, he focused instead on four observations of how we arrived at this point and where we will go from here. (1) He argued that Constitutional law has little to do with law and much to do with social mores. Huge movements in social values are relatively common in constitutional litigation. He compared the social opinion on gay marriage to those on desegregated schooling between 1930 and 1950 and the death penalty between 1950 and 1970. (2) The history of same sex marriage litigation shows that litigation tends to create political backlash. Rulings by Hawaiian and Massachusetts courts led to nationwide movement for constitutional amendments and statutes defining marriage as exclusive male and female. At the time of the rulings, 60–70% of voters (even in liberal states) opposed gay marriage. (3) There has been dramatic public opinion movement in favor of gay marriage despite resistance to the first rulings. Court decisions may have raised the salience of the issue and brought people into conversation on the point. The rulings also reset the status quo (in part by demonstrating that gay marriage did not pose a substantial threat to public policy). (4) A ruling is unlikely to trigger a Roe v. Wade like backlash because there are fewer third party effects here than in desegregation or abortion laws. Furthermore, the ease of circumventing or defying a decision increases the likelihood of opposition. Here, it will be difficult for opponents of gay marriage to prevent gay couples from marrying.

Professor Feldman commented on the doctrine of the case and the likely consequences. Justice Kennedy will rely on the doctrine of equal dignity, which he has developed over the past twenty years. Falling between the privacy or autonomy rights and the equal protection rights, this new doctrine will embrace protections for gay marriage. Romer, Lawrence, and Windsor have established the framework for this ruling even though none of them alone demands the outcome. Justice Kennedy will conclude that once the state affords the dignity of marriage to two people, it cannot violate the equal dignity of gay persons who aspire to the same status. As to consequences, Professor Feldman remarked on the close interrelation of law and religion. Professor Feldman suggested that Americans of faith may come to see marriage as two institutions—one governed by the state encompassing gay marriage, and another governed by various faith organizations upholding a traditional definition of marriage.


 

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David Skeel: True Paradox: How Christianity Makes Sense of Our Complex World

By Andrew Ellis, J.D. Candidate ’16

On March 30, Professor David Skeel gave a fascinating discussion of his book, True Paradox: How Christianity Makes Sense of Our Complex World. Professor Skeel argued that monotheism, and Christianity in particular, is the only foundation for objective morality. In his words, “If you don’t have objective morality, then your morality ends up looking like the ‘consensus morality’ of your community.”

Throughout the presentation, he was critical of millennials who reject any notion of objective morality, yet can be convinced that certain things are objectively wrong—such as sex trafficking. Professor Skeel conceded that there may be a paradox for people that hold these two views (that there is no objective morality, but that some objective right/wrong exists)—but it is not a true paradox. Professor Skeel’s book tries to challenge people with these sorts of views.

Professor Skeel attempted to demonstrate that Christianity is able to make sense of phenomena that science cannot. For example, he claimed that consciousness cannot be explained from an evolutionary perspective. There is a huge jump from the basic planning of our evolutionary ancestors to major abstract thinking. However, Professor Skeel argued that Christianity offers a potentially compelling answer to this mystery—our Universe was created by a rational God, the universe is rationally intelligible because it was created by a rational God, human beings are created in the image of that rational God, and therefore, it is not surprising then that we are rational in the image of God.

Overall, the lecture was thought provoking and presented a viewpoint not often heard at the Law School. After the presentation, students asked several engaging questions, such as about Professor Skeel’s thoughts on Christianity’s compatibility with evolutionary theory.

 


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Wickard v. Filburn: Professors Gary Lawson and Jacob Gersen

By Dennis Mahoney, J.D. Candidate ’16

On March 28, Professor Gary Lawson of Boston University discussed Wickard v. Filburn with Professor Jacob Gersen of HLS. Professor Lawson expressed a much less critical view of the case than most present would have guessed. He argued that criticism of Wickard’s interpretation of the commerce clause has been both overblown and misplaced, as the Court’s decision hinged not on an extreme definition of the word ‘commerce,’ but on a misinterpretation of the Necessary and Proper clause. Professor Lawson therefore finds Wickard problematic, but emphasizes that commentators have misconstrued the case in declaring it a watershed moment in the Court’s Commerce clause jurisprudence.

The real problem lay in the Court’s blindness as to the original meaning of the Necessary and Proper clause. The drafters, Professor Lawson argues, understood the clause to be a mere extension of contemporary agency law, not a sweeping conveyance of plenary power over all commercial activities. The Court in Wickard went wrong when it inquired as to whether regulating intrastate agriculture was necessary in order to regulate interstate commerce. Instead, it should have analogized to any ordinary instance of the principle-agent relationship of agency law and asked whether regulation of intrastate activities is a principle power (which would require an explicit grant) or an incidental one (which would require only a reasonable relation to a granted power). Further complicating the Court’s mistake was that fact that it muddled its Commerce and Necessary and Proper clause arguments, leading future judges and commentators to believe it had greatly expanded the former when all it really did was misinterpret the latter.

Professor Gersen stated that he agreed with much of Professor Lawson’s formulation of the issue, but explained that he is more concerned with the overall institutional structure created by the Constitution and does not share Professor Lawson’s level of concern with original meaning. He noted the extreme variety of opinions concerning the Necessary and Proper clause and Congress’ ability to effect Wickard-like outcomes by means other than the Commerce clause. In his view, these realities should be given more weight and jurists should not be so focused on original meaning.

 


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Professor John Hasnas:  Hobbes v. Hayek

By Josh Esses, J.D. Candidate ’16

On March 24, Professor John Hasnas of both Georgetown University’s law and business school discussed Hobbes v. Hayek with HLS Professor Mark Tushnet. Professor Hasnas framed the debate by first noting that we live in a Hobbesian political world of social contract. The state of nature is dangerous, and therefore the leviathan must be brought into existence to provide security. Or, in words perhaps more familiar to Harvard Fed Soc members, the state exists to preserve freedom.

Law is a consciously created solution to problems of social coordination amongst individuals. However, introducing law into society means that political struggle over government dictates what version of the “good” society is realized.

Hayek was less enamored with utilizing Hobbesian top-down solutions. There are inherent limitations to knowledge (the “knowledge problem”), and we need trial and error to find workable solutions to problems of social coordination. Hayek preferred an evolutionary process of problem solving, as opposed to a top-down legislative approach that stops evolution in its tracks. This process is also known as the common law.

In the development of the common law, rights have corresponding responsibilities, and action is thereby regulated. Legislation, or the conscious creation of a just society, decouples rights from responsibilities. Professor Hasnas then pointed us to the recent Rolling Stone article of a campus rape on UVA that was heavily criticized for not being sufficiently researched. Because NYT v. Sullivan interpreted the 1st Amendment to provide a bar on recovery for libel and slander in the absence of actual malice (i.e. failure to use reasonable care is not enough), the right to speak freely is no longer coupled with the responsibility to do so with care.

The Hayekian alternative to the one-size-fits-all approach of the freedom to speak as governed by NYT v. Sullivan is the common law defamation of speech regulation. A Hayekian approach would apply the 1st Amendment just to the Federal Congress, and states could determine what level of due care they required before one speaks. Professor Hasnas pointed to a number of state constitutions, which all included both clauses granted the right to free speech, as well as the responsibility to speak with care. This responsibility is absent from the Federal 1st Amendemnt, which explains why stories the one by Rolling Stone will go unpunished. A common law system of speech regulation would better balance rights and responsibilities.

Professor Tushnet responded by agreeing that under the common law, bad rules drop out of the system, and good ones tend to stick. However, he argued that if you look at libel law worldwide, in jurisdictions that don’t have a 1st Amendment equivalent and do utilize the common law, their rules don’t end up all that much different from NYT v. Sullivan. So the distinction between consciously created libel rules and common law libel rules may not be that sharp.

Furthermore, the common law isn’t a true spontaneous order without conscious design, because the evolving regulation is consciously designed by judges, who give instructions to juries. And because judges are not randomly selected from society, they would become a political class unto themselves, and may simply usurp the rule-making process from the elected branch to the unelected branch.


Scott Keller

Texas SG Scott Keller – Moot of Walker v. Texas Division, Sons of Confederate Veterans, Inc.

By Blake Lanning, J.D. Candidate ’17

Solicitor General of Texas Scott Keller will argue Walker v. Texas Division, Sons of Confederate Veterans, Inc. before the Supreme Court on March 23. In preparation, he mooted his case at an event co-sponsored by the Federalist Society, the American Constitution Society, the Harvard Law Review, and the Texas Club, giving Harvard Federalist Society members a preview of what he will present to the court.

Mr. Keller made his argument before a three judge panel consisting of Mark Fleming of WilmerHale, Professor Mary-Rose Papandrea of BC Law, and Climenko Fellow Leah Litman. Following the argument, the judges offered their thoughts, advice, and criticisms of Mr. Keller’s performance. Mr. Keller then opened up the floor for questions from the students in attendance.

The case began when the Texas panel that is charged with approving specialty license plate designs denied the request of the Sons of Confederate Veterans, an association of the descendants of Confederate soldiers, to have the state issue a plate with the Confederate flag on it. The principal issues in the case are whether the messages displayed on state issued license plates qualify as government speech, in which case Texas could pick and choose which messages it sanctions, and, if it is not government speech, whether Texas’s refusal to issue plates with the Confederate flag on them constitutes viewpoint discrimination.

The Fifth Circuit Court of Appeals ruled against the state of Texas, holding that the denial of the Sons of Confederate Veterans plate design proposal was discriminatory and violated the First Amendment. The issue of how to treat messages and designs on license plates has divided the lower courts.

A reception with Mr. Keller at the HLS Pub followed the event.

 


IMG_0036Lunch Event: Wiley Rein’s Megan Brown and Brett Shumate on Net Neutrality

By James Nelson, J.D. Candidate ’16

Megan Brown and Brett Shumate, partners at Wiley Rein, discussed net neutrality and other technology practices at their firm and in DC.  Megan discussed the many legal questions surrounding privacy when consumers share data.  Brett talked about what “net neutrality” means, the recent FCC ruling reclassifying broadband internet as a common carrier, and its implications for consumers, ISP providers, and content providers.  Both discussed the inherent problems when the FCC creates new rules without any new legislative guidance from Congress.  The FCC has now applied a title originally meant to regulate landline telephone companies to the internet, and this application may have important ramifications for technology regulation in the future.  Megan and Brett offered their interesting take on the consequences of these regulatory changes for their clients and DC lawyers generally.

 


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Lunch Event: Sullivan & Cromwell – Choosing a Practice Area

By Nikolai Krylov, J.D. Candidate ’15

Sullivan & Cromwell attorneys Jeffrey Wall and Christopher Mann spoke today, March 9, about how to choose a practice area.  Both spoke about how their own careers developed and reflected on the different opportunities they pursued.  Mann spoke about the nature of transactional work generally and Sullivan & Cromwell’s general practice group specifically.  Wall discussed litigation work, particularly appellate practice.  Finally, Mann and Wall shared advice about course selection and how to approach your first job.

 


 

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Who’s the Activist Now? What it Means to be a Conservative Judge

By Jason Shaffer, J.D. Candidate ’17

On March 5, The Harvard Federalist Society hosted an evening lecture by Judge Thomas Griffith of the United States Court of the Appeals for the D.C. Circuit. Against the backdrop of his career, Judge Griffith illustrated his own view on what it means to be a conservative judge.

Judge Griffith began with a discussion of his own path toward conservatism and two important events that shaped him. A mission trip to Apartheid South Africa as a young man gave him a new appreciation for the U.S. rule of law. His discovery of the writings of Judge Robert Bork was formational, and he identified strongly with Bork’s view of judges as neutral arbiters applying the law but not making law.

He then discussed his concerns that this view of judges may not comport with an originalist understanding of what a judge was. His own view is that the Framers did not have “Bork’s judge” in mind. Rather, their idea of the judicial role was likely closer to the classic common law judges of the era who had the pragmatic flexibility to create law.

Nevertheless, Judge Griffith believes that the system the Framers created did not leave room for these pragmatic, flexible common law judges. Analogizing to a recent quote by Justice Scalia, Judge Griffith stated that the relevant question is not what the Framers intended, but rather what they wrote. He asserted that in 1787 a new type of judge was created—different than the judge the Framers may have had in mind. It is clear to Judge Griffith that what the Framers wrote only allows for a “clerical” judge that, instead of making law, is simply trying to figure out what the words say.

This view of the judge’s role informs Judge Griffith’s general view that deference to the elected branches of government is important. He explained that he does not think “people in robes” should make the rules, and he thinks the public at large agrees. Instead he believes a conservative judge should be “faithful agents of the politically accountable.”

After delivering his view of the conservative justice Judge Griffith expressed a concern. He worried that some conservative judges have forgotten these basic conservative foundations. As conservative judges have filled the judiciary, Judge Griffith worries that they have fallen prey to temptations that gave rise to many of the grievances conservatives levied against past liberal courts. Judge Griffith asked Federalist Society members to not forget the basic tenants underlying the organization, and he expressed hope that conservative members on the bench would do the same.

Judge Griffith fielded questions regarding judicial deference to the elected branches, engaging in discourse with fellow judges who may have differing judicial philosophies, and favorite memories of private practice.

 


Tara Smith

Lunch Event: Tara Smith, Constitutionalism-The Backbone of Objective Law

By Blake Lanning, J.D. Candidate ’17

On March 5, Professor Tara Smith posed two propositions at a Federalist Society luncheon event, which, when taken together, may be the source of some alarm. On the one hand, constitutionalism is an essential feature of organized society that ensures the rule of law. Yet in the United States, Ms. Smith contended, the Constitution is increasingly disdained and disregarded by politicians.

Smith is a professor of philosophy at the University of Texas at Austin and the author of a three books, including Ayn Rand’s Normative Ethics: The Virtuous Egoist. Although she has had no formal education in the law and is a self-described newcomer to the study of constitutionalism, Ms. Smith argued strongly for the subject’s importance.

Starting with the assertion that government is possessed of unique and significant powers in society, Smith advanced the perhaps familiar position that a constitution is essential to limit and structure the use of such power so as to establish and preserve the rule of law. The alternative, Ms. Smith said, is to have society directed by the whims of a tyrant, which can come in the form of a dictator as well as a democratic majority.

In contemporary America, Smith believes that her regard for constitutionalism is not shared by political leaders. Citing then-Speaker Nancy Pelosi’s seeming indifference to the question of whether or not the Affordable Care Act was constitutional before its passage in 2010, as well as the Bush Administration’s unconstrained use of government power during the financial crisis in 2008, Smith argued that disregard of the constitution’s importance spans party lines and threatens the health of American society. Smith contended that subjectivist thinking, which undermines the rule of law, and the growth of the regulatory state, which makes the populace accustomed to seemingly unbound exercises of government power, further exacerbate the decline of constitutionalism in the United States.

Responding to Smith’s argument was Professor James Fleming of Boston University Law School. Fleming noted his agreement with Smith on a number of points before voicing his concern that Smith’s conception of the constitution may be too narrow. Specifically, while Smith claimed that the constitution’s proper role is to serve as a protection for individual freedom, Fleming said that a constitution should also contain provisions that direct the government to take affirmative steps to benefit the population. In support of his opinion, Fleming recited the preamble to the United States Constitution, which, among other things, calls upon the government to promote the general welfare.

Before opening the final minutes of the event for questions, Smith briefly responded to Fleming’s remarks by noting that the U.S. Constitution isn’t perfect and that its preamble may be one of its least appealing provisions.


Lunch Event: Erin Murphy – King v. Burwell

By Moshe Gerstel, J.D. Candidate ’17

On March 4, the Supreme Court will be hearing the latest legal challenge to the Affordable Care Act (Obamacare) in King v. Burwell. In advance of oral arguments in the case, Fed Soc hosted a debate on the central issue at hand. Erin Murphy of Bancroft PLLC, who second-chaired for Paul Clement when he argued the Individual Mandate case, argued on behalf of Petitioners. Professor Abby Moncreiff of Boston University Law School, who submitted an amicus brief for this case, responded for the government’s side. (A non-pizza lunch was served, but there are no leftovers.)

The key issue in the case, Ms. Murphy explained, is a short line hiding in a provision in section 36B covering the availability of tax subsidies for persons purchasing insurance on the new health exchanges. To qualify for a subsidy, an individual must be “covered by a qualified health plan … that was enrolled in through an exchange established by the state under section 1311 of the Patient Protection and Affordable Care Act” (emphasis added). This would seem to rule out subsidies for the 34 or so states that did not establish their own exchanges, but had exchanges established for them by the Department of Health and Human Services (HHS).

The government’s response, Professor Moncreiff explained, is that “established by the state under section 1311,” is a “statutory term of art,”—a term used in a specific way for the purposes of this statute—and includes exchanges set up by HHS on behalf of the states. The government supports this argument by references to other parts of the Act, and by showing how other portions of the Act would be rendered senseless if Petitioners’ arguments are accepted.

Professor Moncreiff herself believes that the government’s reading is not tenable as the text stands, but that the current text is clearly the result of an error when viewed in the context and purpose of the act in general. She argued that the government would be better off pursuing statutory interpretation arguments since as it stands now “you have to engage in acrobatics to make sense of the entire statute,” and even the Court’s textualists are faced with some serious issues in making this statute coherent. Further, she stressed, a ruling for petitioners would raise some serious constitutional issues under NFIB v. Sebelius and Shelby County v. Holder given the differential effect it would have on states with their own exchanges and states without.

A ruling for Petitioners’ would effectively undermine the government’s ability to provide tax credits to millions of individuals who bought plans on federally established exchanges. These individuals would then qualify for exemptions from the Individual Mandate, and the purpose of the Act would be largely undermined. Moreover, a Republican Congress is not about to remedy the issue legislatively. Participants, providers, and insurers, are all awaiting the Court’s decision in King v. Burwell with trepidation. Stay tuned.

 


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Book Talk: Damon Root, “Overruled: The Long War for Control of the Supreme Court

By Lindsay Church, J.D. Candidate ’16

Tuesday night, February 24, Mr. Damon Root, senior editor for Reason magazine, discussed his recent book, “Overruled: The Long War for Control of the Supreme Court.” Root’s talk, which focused on the divide between conservative and libertarian jurisprudences, was a welcome break from the usual conservative vs. liberal debate we often see as law students.

In discussing Justice Oliver Wendell Holmes, Jr.’s tendency to defer to the legislature, Root opened with one of the Supreme Court Justice’s famous quotes.: “I always say, as you know, that if my fellow citizens want to go to Hell I will help them.” This dedication to legislative deference has become a touchstone of conservative thinking.

An alternative school of thought, one of aggressive judicial review for the purpose of preserving constitutional rights, has been advocated by libertarians. This school focuses not on the constitutional role of courts as interpreters, but instead holds that 51 percent of the people should not get to override fundamental rights just because they make up a majority.

After presenting these two oftentimes conflicting theories, Root discussed two cases: Meyer v. Nebraska (1923) and Kilo v. City of New London (2005). Root concluded the discussion by emphasizing that this is a “fundamental debate that really gets to the heart of our system,” and that his book seeks to convey the way this debate shapes legal history. Following the talk, many members of the audience asked thoughtful questions.

Last December, the Washington Post published a review of Root’s book, calling it “an impressive account of the conflict over judicial review between conservatives and libertarians.  Overruled is available for sale here.

 


 

Colloquium- Meritocracy

Colloquium: Tyranny of Meritocracy

By James Nelson, J.D. Candidate ’16

Members of the Federalist Society and ACS joined for a Colloquium Thursday evening, February 19, to discuss Professor Guinier’s book, Tyranny of the Meritocracy: Democratizing Higher Education in America. Rather than a more formal speaking event, this Colloquium allowed members of both organizations to debate the merits of the book and the role that “merit” should play in the college admissions process.

The event opened with prepared remarks by May Davis, the Federalist Society Chapter’s President, critiquing Guinier’s alternative to the current system of college admissions that looks to standardized tests and other soft factors. Guinier would do away with standardized tests and encourage admissions officers to look for democratic virtues—including leadership and collaboration skills—in candidates for admission. Davis argued that the current system is better (despite its weaknesses) because it gives students an objective goal to improve their admission chances—namely work hard and perform well on the SAT—whereas Guinier’s factors are more nebulous and manipulable.

After these remarks, the attending members of ACS and Fed Soc had a conversation for an hour and a half about the definition of merit, the purpose of universities and admission criteria, whether intelligence should be the focal point of admissions (and how to define intelligence in the first place), and how to solve the problems of class divide in SAT scores and college admissions. There was wide agreement that while the current system is “game-able” (namely, more wealthy parents are able to help their children prepare for the SAT and other admissions factors because of their resources–prolonging the socioeconomic problem of the “lotter of birth”), that a new system of letters of recommendation from guidance counselors for democratic virtues may be just as, if not more, manipulable (the children of the highest donors to the local high school may get the best letters, etc.).

The group posited several potential solutions to these admissions problems, though there was no consensus over the ideal solution. The potential fixes to the weaknesses identified in the current system and in Guinier’s suggest solution included: affirmative action based on socioeconomic status, adjusting the weight of candidates’ SAT scores based on the average score for their family’s income bracket, spending more energy on fixing primary school education to reduce the effect of the lottery of birth, and deemphasizing the importance of a college education in society to ameliorate the negative impact of these gamesmanship concerns.

Overall, the debate was good-hearted, fruitful, and thought provoking. Members of both chapters learned from each other and showed that it will take teamwork across all ideological spectrums to begin to solve the pressing issues of our generation.


 

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Rachel Brand- The Tensions Between Privacy and National Security

By Paul Vanderslice, J.D. Candidate ’17

Rachel Brand of the Privacy and Civil Liberties Oversight Board (PCLOB) and Professor Charles Fried spoke today, February 19, about the competing policy interests of privacy and national security.

Ms. Brand discussed the agency’s unique position at the intersection of privacy concerns and national security policy. She identified two major problems encountered by policymakers in this area. First, the public tends not to focus on privacy or national security issues unless faced with a crisis. This selective attention creates major swings in popular opinion, making it difficult to implement good policy and undermining the morale of the intelligence community. Second, both privacy and national security lack universally accepted definitions. She recommended that policymakers and the public recognize that privacy means different things to different people, and discussed PCLOB’s efforts to design a permanent program through which the intelligence community could evaluate privacy and security trade-offs.

Building off his recent Lawfare article, Professor Fried questioned why the public valued privacy at all. He noted that the trade-off is not between privacy and security, but rather between privacy and knowledge. A well-informed government is a better government, and the public should want the government to do all it can to make the right decisions. He argued that concerns about abuse of this knowledge should be mitigated by clear and strongly enforced rules outlining what the government can do, not by reducing the quantity of information it possesses. Professor Fried analogized the public outcry over NSA surveillance to a similar reaction against the introduction of plainclothes police officers decades ago, and suggested that the negative reaction would probably subside.

Questions focused on the substantive protections afforded by the Fourth Amendment, particularly on whether the Framers’ views of privacy were related more to property than to an abstract concept.


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Jeannie Suk- Why Teach Rape Law

By May Davis, J.D. Candidate ’15

On February 4, The Federalist Society and the Women’s Law Association hosted a talk, “Should we Teach Rape Law?” The event featured Professor Jeannie Suk, who discussed her recent article in the New Yorker. New Harvard professor, Andrew Crespo, responded.

Professor Suk discussed the current climate among criminal law professors — teaching rape law is not a foregone conclusion; some professors consider the negatives to outweigh the positives in teaching a subject so sensitive to trauma. But Professor Suk affirmed her willingness to teach rape law. The trauma element is more present in a rape discussion than with other crimes, Professor Suk explained, considering the proximity to students’ lives. With rape, the underlying action — sexual activity — is commingled both with students’ lives and with the potentially illegal action being discussed. She recognized that some students may not be emotionally equipped for the discussion, given personal trauma, but she considered taking such individual trauma and applying it to the subject at-large was too great a leap.

Professor Crespo was initially uncertain about whether to teach rape law. Weighing against teaching rape was his realization that most students will not become criminal lawyers, limiting the usefulness of a deep knowledge of rape law. Further, in Professor Crespo’s experience as a student, class comments regarding rape law were sometimes merely offensive, not productive to class discussion. Building community and trust within a 1L section is incredibly important, and rape discussions have a special ability to wear positive relationships thin. The ability to lose a class to chaos is especially present in rape discussions. Professor Crespo, ultimately, is leaning toward teaching rape law. Having difficult, emotionally charged conversations is important — professors would not be doing their jobs well if the first emotionally uncomfortable situation a lawyer had was in court, rather than in the classroom. Also, the history and background of rape law is important for students to interact with.

The event ended with multiple questions from the audience, focused mainly not on whether rape law should be taught, but how.