:: RECENT PUBLICATIONS :: 

Forbes.com - "Goldman Sachs Morality Play"

• In the vein of earlier cases within the past decade, federal prosecutors will likely use the threat of ruinous corporate indictment to pressure, in this instance, investment banks to turn against their own employees. Notwithstanding the serious legal and ethical questions that arise when applying vague criminal laws to the conduct at issue, prosecutors, aided by corporate “cooperation” and “deferred prosecution agreements” will then be able to convict (or extract guilty pleas from) individual investment bankers who may well be innocent of any crime. As past cases have made clear, endowing prosecutors with such power threatens basic tenets of our criminal justice system, violates civil liberties, and, not so incidentally, distorts the truth.

Boston Phoenix - "Elena Kagan's shaky record"

• If former Harvard Law School Dean and current U.S. Solicitor General Elena Kagan gets President Obama's nod to be the next Supreme Court justice, how will it affect the high court, and how will it impact civil liberties? In a Boston Phoenix web essay published this past Friday, Harvey and his research assistant Kyle Smeallie examine, from a civil liberties perspective, Kagan’s record and her possible judicial philosophy. In her still-short tenure as solicitor general, and in the few written pieces from her tenure in academia, Kagan has displayed a clear preference for strong executive authority in both the law enforcement and national security arenas. Though her resume ultimately leaves one with more questions than answers, that fact alone should give pause to those concerned with the enhancements to presidential authority in the post-9/11 “war on terror” era. One might agree, or disagree with such enhanced executive power, but it is essential to at least know how a Kagan elevation to the high court might impact this vital arena.
  

The Wall Street Journal - "Free Association and the First Amendment"

• This Monday, the Supreme Court will hear arguments in an important free association case, Christian Legal Society v. Martinez. The case involves an evangelical Christian student group that, while accepting all students at its functions, requires leaders and voting members to sign a Statement of Faith. In the April 16th edition of The Wall Street Journal, Harvey  explains why this is a core area of protected First Amendment expressive association, rather than, as some claim, invidious discrimination. If the Supreme Court decides that public colleges may deny religious groups the same rights as any other group on campus, the result will be less, not more, genuine campus diversity.

  This is a case not widely understood by lawyers, judges, college administrators, media commentators and reporters, and many others. For that reason, the Foundation for Individual Rights in Education (FIRE) chose to submit an amicus brief, signed by Harvey as FIRE’s counsel-of-record, on behalf of the Christian Legal Society.

Boston Phoenix - "Will Beacon Hill be bullied into enacting a politically correct law?"

• Nine teens were indicted criminally on March 29 for their much-publicized “bullying” campaign at South Hadley (MA) High School, which allegedly led to the suicide of a 15-year-old freshman. Despite this strong prosecutorial response based upon existing criminal laws of considerable vintage, calls for new legislation to criminalize student bullying are nonetheless on the rise. These knee-jerk reactions underestimate existing law and, if acted upon, could potentially undermine time-tested civil liberties with yet another shortsighted crime du jour. Harvey examines the implications of anti-bullying legislation in this April 7th Boston Phoenix column.
  

The National Law Journal - "Free at last? Not so fast."

• For the past two decades, Harvey, Phil Cormier, and Andy Good have represented—either as lead counsel, or now, as amicus counsel for the Innocence Project—former Green Beret physician Jeffrey MacDonald, wrongfully convicted of a 1970 murder. Despite uncovering exculpatory DNA evidence and voluminous investigative and prosecutorial misconduct, Supreme Court rulings and restrictive federal habeas corpus legislation have made it more difficult for the convicted to introduce new evidence in order to have the courts take another look at the case. As the Fourth Circuit Court of Appeals considers Dr. MacDonald’s case, it’s important to recognize how this misguided doctrine of “finality” has allowed a demonstrably innocent man to spend decades behind bars, all the while allowing the real murderers – against whom overwhelming evidence has been accumulated – to escape.
  

Massachusetts Lawyers Weekly - "Trial and error: scientific method and the First Amendment" (subscription required)

• In the March 1, 2010 edition of Massachusetts Lawyers Weekly, Harvey describes an underappreciated (or at least under-defended) aspect of the First Amendment: That no idea, no theory can be officially enthroned as unassailable truth, for the pursuit of knowledge is only furthered by a constant testing and retesting. This foundational element of the so-called "marketplace of ideas"—central as well to the scientific method—needs to be applied to all fields of study. Nowhere is this more evident than in Griswold v. Driscoll a case currently before the First Circuit Court of Appeals, concerning censorship of a curricular guide promulgated for state high school students to study human rights abuses.  
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Minding the Campus - "How Corrupted Language Moved from Campus to the Real World"

• Over the past dozen years, Harvey's main areas of law practice have resulted in two books: The Shadow University (co-authored with Alan Charles Kors in 1998), which discusses the deprivations of liberty and related absurdities on American campuses, and Three Felonies a Day, which recounts how vague statutes have made everyone a potential target of federal prosecutors. What connects these seemingly disparate phenomena? Harvey explains in this Minding the Campus blog post.