Harvard Law & Policy Review

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Real Pardons for Real People

By Noah Marks

The minor political crisis that unfolded over the weekend, fallout from the Presidential pardon of “Mac” and “Cheese” and Sasha and Malia’s apparent boredom, has claimed at least one person’s job. The President, puzzled by the tradition, echoed his recent immigration executive order by claiming that the act is “fully within” his “legal authority” to “spare the lives of two turkeys . . . from a terrible and delicious fate.”

Presidential turkey pardons apocryphally date to Harry Truman, but the first confirmed, formal(ish) pardon took place in 1989 by George H.W. Bush. In fact, only in recent years (since George W. Bush) has it become custom for the President to pardon both turkeys. This year, President Obama ignored requests from PETA, who called on Sasha and Malia to urge their father to end the tradition and have a vegan Thanksgiving.

At the risk of over-analyzing and ruining one of the few light moments in a President’s life, we should take Thanksgiving and the turkey “pardon” as an opportunity to evaluate the ever-diminishing role of the real pardon. Unlike the photogenic turkeys, our world-leading incarcerated population is invisible, disenfranchised, and all too easily ignored. [Read more…] about Real Pardons for Real People

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Facebook Threats: Will Prosecutors Have to Prove Subjective Intent?

By Ana Choi

Today, the Supreme Court will hear oral arguments for Elonis v. United States, an important case dealing with freedom of speech in the context of social media. Petitioner Anthony Elonis was charged and convicted under 18 U.S.C. § 875(c)—which forbids “any threat to injure the person of another”—after composing a series of threatening Facebook posts about his wife, his co-workers, law enforcement officers, and even an unspecified elementary school. The question to be decided is whether conviction for making a threat requires proof of a subjective intent to threaten, or whether it is enough to show that a “reasonable person” would perceive the statement as threatening. [Read more…] about Facebook Threats: Will Prosecutors Have to Prove Subjective Intent?

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What We Really Should Do This Thanksgiving

By Tom Watts

In the aftermath of Ferguson, I keep reading pieces like this: what we should do now is learn, understand, and think. I find this advice irritating, because it seems futile. Things look bad right now, and social change will never come from progressives simply becoming more informed. We have to take the next step: talk with people. In particular, talk with people who disagree with you. Do it over Thanksgiving, and keep doing it throughout the whole holiday season. If you can broaden even one person’s perspective, you’ve made a small step toward changing public opinion, and when public opinion changes, society changes.  [Read more…] about What We Really Should Do This Thanksgiving

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Let’s Make a Deal

By Daniel Pyon

As the dust settles from the midterm elections, this much is clear: the final two years of President Obama’s administration will be one of two-party control. Accordingly, journalists and pundits are busy predicting what divided government means for issues on the President’s legislative agenda ranging like immigration, climate change, tax reform, and presidential appointments in both the executive and judicial branches.

Of all these items, however, the area most likely to see substantial progress is President Obama’s goal to finalize several global trade agreements. The Obama administration is close to finalizing agreements on two major regional free trade deals: one with countries in the European Union, the Transatlantic Trade and Investment Partnership (“T-TIP”); and one with major economies in the Asia-Pacific Region, the Trans-Pacific Partnership (“TPP”). Agreements would reduce tariffs, level out differences in regulatory standards, and encourage investment and trade. Typically, the administration negotiating the agreements makes an advance request of Congress to pass a bill giving the President trade promotion authority, or “fast-track authority,” to bring the agreements to the floor of the Senate without an opportunity for amendment and with only limited debate. Executive branch officials believe they need this authority to obtain the best deal, as negotiating partners will be reluctant to concede certain deal points important and favorable to American interests if Congress can meddle with a balanced, delicately crafted treaty. [Read more…] about Let’s Make a Deal

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Four places are changing the way we think about marijuana

by Monis Khan

Last Tuesday’s midterm elections have left liberals panic-stricken as they lament lopsided losses by Democratic party candidates for U.S. Congress. For progressives paying attention to ballot measures at the state level, however, there is cause for encouragement.

Even with the lowest turnout nationwide for any midterm election since World War II—a metric that perhaps would not bode well for populist policies on the ballot—voters in Oregon and Alaska bolstered a growing trend of support to end marijuana prohibition as both states passed measures legalizing the drug for recreational use, while also taxing and regulating its production and sale. A closer look at these ballot initiatives highlights the positive impact that a comprehensive legalization and regulation strategy can have on an entire state, while also exposing the hazards federal tax regulations may have on the recreational marijuana industry’s ability to grow and flourish. [Read more…] about Four places are changing the way we think about marijuana

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A SCOTUS Ruling on Gay Marriage: What’s it Actually Worth?

By HLPR Online Staff

Since the Supreme Court’s June 2013 ruling in United States v. Windsor—holding the federal Defense of Marriage Act unconstitutional—gay rights advocates have brought a tidal wave of lawsuits across the country successfully challenging state bans on same-sex marriage. On October 6th of this year, the Supreme Court denied cert in cases from five states, leaving in place lower court rulings striking down same-sex marriage bans. Though many had hoped the Court would hear the cases and rule definitively for same-sex marriage, the Court was likely following its usual practice of waiting for a split of opinion in the federal courts of appeals before taking a case. During a talk at the University of Minnesota Law School this past September, Justice Ginsburg at least seemed to indicate that the Court may wait for a split before taking up same-sex marriage.

Thus, all eyes are now turned to the Sixth Circuit Court of Appeals in Cincinnati, where a same-sex marriage case may produce the split needed to encourage the Supreme Court to act. The swing vote in the Sixth Circuit case is Judge Jeffrey Sutton, a former Scalia clerk and frequent conservative voter. With a decision expected any day now, Judge Sutton could be the vote to drive gay marriage to the Supreme Court.

But for those committed to true equality for gay people, what does a Supreme Court ruling in favor of same-sex marriage actually get you? [Read more…] about A SCOTUS Ruling on Gay Marriage: What’s it Actually Worth?