By Jeffrey Rosen | The Atlantic | June 3, 2016

Louis Brandeis, who was confirmed to the Supreme Court exactly 100 years ago, was America’s greatest critic of bigness since Thomas Jefferson. Denouncing big banks as well as big government as symptoms of what he called a “curse of bigness,” Brandeis was determined to diminish concentrated financial and federal power, which he viewed as a menace to liberty and democracy. He is also the Jeffersonian prophet who has been most consistently vindicated. The “people’s lawyer,” who predicted the stock-market crash of 1929, was a ferocious critic of economic and political consolidation in an earlier age of “too big to fail.” More than any other Supreme Court justice, he shows the importance of translating values of privacy and free speech in an age of technological change.

By Nancy Gertner | The Washington Post | May 6, 2016

Nancy Gertner is a retired federal district court judge and a senior lecturer at Harvard Law School, and a CLBB Senior Faculty member. She is a signatory of an amicus brief in the Supreme Court case United States v. McDonnell, on behalf of former Virginia governor Robert McDonnell.

When we talk about political corruption, what often comes to mind is what the law calls “quid pro quo”: I give a politician money and in exchange he or she gets me a government contract or votes in my favor. But there is a continuum of quid pro quo exchanges, some plainly illegal, some not and some ambiguous.

In the case of former Virginia governor Robert McDonnell, the Supreme Court will decide whether it is constitutional to prosecute a public official for conduct on that continuum, conduct never before determined to be at the illegal end. The issue is not whether we should regulate gifts to public officials; the issue is whether the criminal law can be used as a bludgeon when we have not done so. I think not. As a matter of due process, criminal prosecutions can be brought only when we have clearly defined what is legal and what is not.

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BBC News | January 28, 2015

The US Supreme Court has postponed the executions of three death row inmates who say the use of the sedative midazolam in the procedures is cruel.

Justices said Oklahoma could not execute Richard Glossip, John Grant and Benjamin Cole by lethal injection using midazolam while the case is pending.

The men’s lawyers argue that midazolam presents an unconstitutional risk of pain and suffering.

The drug was used in three executions seen as botched in 2014. Continue reading »

By Adam Liptak | The New York Times | December 12, 2014

WASHINGTON — The Supreme Court agreed to decide on Friday whether a decision it made in 2012 barring mandatory life-without-parole sentences for juvenile killers must be applied retroactively.

The case concerns George Toca, a Louisiana man who was 17 in 1984 when, according to witnesses, he fatally shot a friend during a botched armed robbery. Mr. Toca was convicted of second-degree murder and automatically sentenced to life in prison without the possibility of parole, as required by Louisiana law.

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On Monday, January 13, the Supreme Court declined to hear a lower court ruling abolishing an Arizona law that criminalized abortions at 20 weeks. Recently enacted restrictive abortion laws across a number of states hinge on the fetal pain assertion, an argument that a fetus can feel pain at 20 weeks of gestation. This assertion is highly disputed among scientists, and begs questions about the possibility of defining and quantifying physical pain, a new area of active inquiry for CLBB as we welcome David Borsook, a neuroscientist who studies pain, and Amanda Pustilnik, a legal theorist, to the CLBB faculty. In her 2012 paper “Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates the Moral Dimensions of Law,” Pustilnik discusses the imminent capacity of neuroimaging for rendering pain, and the implications of such a rendering for legal theory and practice.  What follows below is an excerpt from a recent New York Times article discussing the Supreme Court’s decision.

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