Media Mentions

An op-ed by Cass Sunstein: The Oscars were first presented in 1929. The Behavioral Economics Oscars, known throughout Hollywood as the Becons, did not appear until 2012. But as the iPhone is to the rotary phone, and as Lady Gaga is to Dean Martin, so are the Becons to the Oscars. After months of careful deliberation, the top-secret committee has finalized its choices. Here are the Becons for 2018.

An op-ed by Simon Hedlin '19: Over the holidays, President Donald J. Trump has taken to Twitter to respond to Defense Secretary James N. Mattis’s resignation letter. The retired general wrote that his “views on treating allies with respect and also being clear-eyed about both malign actors and strategic competitors are strongly held and informed by over four decades of immersion in these issues.” Trump tweeted that he gave Mattis “a second chance” even though “[s]ome thought I shouldn’t.” The president further countered that our allies are not important “when they take advantage of [the] U.S.” He then announced via Twitter that Mattis would leave office two months earlier than originally planned. The following day Trump tweeted that “countries take total advantage of the U.S.” and that “Mattis did not see this as a problem.”

Drugs that can cure hepatitis C revolutionized care for millions of Americans living with the deadly liver infection. The drugs came with a steep price tag—one that prompted state Medicaid programs to initially limit access to the medications to only the sickest patients. That eased, however, in many states as new drugs were introduced and the prices declined. But not in Puerto Rico: Medicaid patients in the American territory get no coverage for these drugs. ... “You know, we do not deny lung cancer treatment for a person who smokes or diabetes treatment to a person that doesn't eat well,” says Robert Greenwald, a professor at Harvard Law School and faculty director of the Center for Health Law and Policy Innovation.

A New York Times analysis, based on research from Harvard Law School, Columbia Law School and other sources, counts nearly 80 environmental rules on the way out under Mr. Trump. Our list represents two types of policy changes: rules that were officially reversed and rollbacks still in progress.

... This week, the drama intensified, when the Supreme Court signaled an interest in the case. In a court order issued Sunday, Chief Justice John Roberts granted a stay to the contempt finding, and requested briefings on the case by December 31. Before the Supremes had a chance to weigh in, we had asked our panelists: What’s going on in the mysterious case? And what does it tell us about the direction of the Mueller probe? ... Alex Whiting, professor at Harvard Law School, and former federal prosecutor with the Criminal Section of the Civil Rights Division and the US Attorney’s Office in Boston: From the few clues that we have, it seems likely that the subpoena at issue pertains to the Mueller investigation, but it is difficult to know what corporation or company it involves. And that is perhaps what is most striking about this episode: it underscores the broad reach and scope of the Mueller investigation.

The U.S. Supreme Court doesn’t return to the bench for arguments until Jan. 7, but that doesn’t mean work stops. ‘Tis the season for applications, and specifically, Trump applications. Applications? At certain times of the year, the high court seems to be a magnet for highly charged emergency requests. ... Nearly 60 years ago, Justice William Brennan Jr. took the unusual step of hearing oral arguments in his chambers at the court on a school district’s application for a stay of a desegregation order. Brennan, according to his former clerk Frank Michelman of Harvard Law School, welcomed the lawyers into his chambers, listened to the arguments and then “effortlessly” wrote an order denying the stay request.

... Until now, the publishing house that still bears Knopf’s name has held the North American copyright on the title. But that will change on Jan. 1, when “The Prophet” enters the public domain, along with works by thousands of other artists and writers, including Marcel Proust, Willa Cather, D. H. Lawrence, Agatha Christie, Joseph Conrad, Edith Wharton, P. G. Wodehouse, Rudyard Kipling, Katherine Mansfield, Robert Frost and Wallace Stevens. ... When the first Copyright Act was passed in the United States in 1790, the maximum term was 28 years. Over the decades, lawmakers repeatedly prolonged the terms, which now stretch to over a century for many works. “It’s worse than the tax code,” said Rebecca Tushnet, an intellectual property expert at Harvard Law School. “The copyright term is way too long now.”

After two years of the Donald Trump presidency, the national stores of civic goodwill are depleted. That could make for a testy 2019, because it appears that the country’s defining political tensions are about to break into open clashes. ... “I think the biggest question is, is he going to present evidence that Trump committed crimes?” said Alex Whiting, a Harvard law professor and former prosecutor on the international criminal court. “Either obstruction of justice or collusion. He wouldn’t bring an indictment because justice department policy won’t permit it. But whatever evidence would be handed off, I think, to the Congress, and it will have to be considered. That’s as big as it gets. I think that’s really – that’s the ultimate question.”

The use of AI applications in this domain is so widespread that it is now possible to produce solutions for almost all professional groups. Medicine, education, automotive, defense, agriculture, automation, energy, natural sciences, finance, art, and law! ... The most important part of the success of these studies is that the data is regularly found in digital media. Harvard Law School recently shared the 360-year-old case law of the United States of America according to each of the states with AI developers on the online platform. This is an important resource for speeding up the work. But the biggest obstacles for natural language processing are language-specific rules and the need for such resources in all languages. The developments in English are quite bright because most of the data is regularly available in this language.

Benjamin Nahum’s letters to corporate executives don’t set off alarm bells like those from billionaire investors like Carl Icahn or Dan Loeb. Make no mistake, though, the Neuberger Berman Group LLC portfolio manager is increasingly borrowing a page or two from their playbook: He’s willing to scrap with the chief executives and board members of the small-cap companies whose shares his firm owns. ... Lucian Bebchuk, a Harvard Law School professor, said it is still rare for a traditional manager to be openly critical of companies. “Like index funds, most of the major mutual fund families that focus on active funds display a deferential attitude toward corporate managers in their stewardship choices and activities,” he said.

An article by Jack Goldsmith and Robert D. Williams: Just before Christmas, the U.S. Department of Justice unsealed an indictment against two Chinese nationals who allegedly conducted a twelve-year “global campaign[ ] of computer intrusions” to steal sensitive intellectual property and related confidential business information from firms in a dozen states and from the U.S. government. According to the indictment, the defendants conducted these acts as part of the APT10 hacking group “in association with” the Chinese Ministry of State Security.

At his confirmation hearings for the position of U.S. trade representative, Robert Lighthizer, the nation’s chief trade negotiator, promised to fight for all of America’s great industries. Yes, he acknowledged, he had built his three-decade career by lobbying for the steel industry. But he was ready, he said, to make the world safe again for good old-fashioned American capitalism, in all its forms. He recalled a caution he’d received from a senator: “As you go through doing your job, remember that you do not eat steel.” ... The WTO risks irreparable damage from Lighthizer’s battles with China. In an influential article, Mark Wu, a Harvard Law professor who negotiated intellectual-property deals for the U.S. government, made the case that China’s accession to the WTO was premised on a mistaken assumption that the organization could accommodate the country’s authoritarian system.

China’s backsliding on market reform and its trade practices in the past decade is “very disturbing”, said Charlene Barshefsky, the former US trade representative who opened the door to the World Trade Organisation (WTO) for China. ... Mark Wu, a law professor at Harvard University who worked in the Office of the US Trade Representative (USTR) during the George W Bush administration, echoed her analysis. “Undoubtedly, China’s desire to join the WTO played a major role in spurring market-oriented reforms in the late 1990s and early 2000s and prevented them from being undone by conservatives,” said Wu, who was the USTR’s director for intellectual property from 2003-04.

... But I have my own theory: It’s not the movie or the altitude, but rather the intimate audio experience in a moment of solitude. Your headphones — a buffer from the world injecting dialogue into your ear — become a conduit to your soul. When I fly now, I skip the movie, put in my AirPods and take my catharsis in podcast form. ... In a recent essay, the Harvard Law professor Lawrence Lessig argues that podcasts offer more than a helping hand when it comes to journalism’s Internet-era challenges. “The architecture of the podcast,” he says, is also “the precise antidote for the flaws of the present.”

Two disturbing incidents involving acting attorney general Matthew G. Whitaker came to light at the end of an already chaotic week. First, it became clear that ethics officers told him to recuse himself from the Russia probe. Second, President Trump, in what appears to be yet another instance of obstruction of justice, leaned on Whitaker to rein in prosecutors in the Southern District of New York. ... Constitutional scholar Laurence Tribe bluntly says, “The president is totally out of control.” He explains, “Such brazen efforts to rein in career prosecutors for doing their jobs in a professional way just because their legal filings implicate him in evidently criminal behavior is part of a persistent pattern of obstructing justice.”

In 1995, Senator Daniel Patrick Moynihan declared, “Sometime in the next century the United States is going to have to address the question of apportionment in the Senate.” Perhaps that time has come. ... Laurence Tribe of Harvard Law School has recommended that when an earlier constitutional text conflicts with later textual amendments, we should follow “time’s arrow.” We should keep in mind that the original one-state, two-senators rule was written and ratified by property-owning white men, almost half of whom owned slaves, and that the voting-rights amendments were adopted after a war to end slavery.

Harvard Law School professor Vicki Jackson plans to use her year as president of the Association of American Law School to encourage law faculty, students and practitioners to promote democracy, voting rights and fair representation.

Last summer, Boston’s City Council and Mayor Marty Walsh passed Boston's first ordinance regulating short-term rentals in the city, aimed at allowing homeowners to make extra money while stopping investor owners from buying up real estate to establish de facto Airbnb hotels. ... Airbnb lobbied hard against the measure; when it passed, the company threw the book at the City of Boston: Airbnb sued the city in federal court, arguing the ordinance is illegal. The lawsuit here could have national implications. That's because central to the company’s case is a federal law called the Communications Decency Act – or CDA – specifically, one part of that act known as Section 230. It says that internet companies can't be held responsible for what users post on it. “So basically what that means is I cannot be held responsible as the publisher of information that a user puts up there,” says Mason Kortz. Kortz is a clinical instructional fellow at Harvard Law School Cyber Law Clinic.

The Trump administration proposed on Friday major changes to the way the federal government calculates the benefits, in human health and safety, of restricting mercury emissions from coal-burning power plants. ... The Obama administration itself had broadly accepted that it is difficult to put a specific dollar-figure on some health benefits, for instance, avoiding lost I.Q. points in infants or other fetal harm that has been linked to pregnant women eating mercury-contaminated fish. For that reason, the original rule argued against using a strict cost-benefit analysis to decide whether the regulation should be imposed, said Joseph Goffman, the executive director of Harvard Law School’s Environmental and Energy Law Program.

We look back at the year in law and politics. In law, we look at President Trump's travel ban and family separations at the border before the courts. In local politics, 2018 found Massachusetts at the center of the divide in both parties. We have a Republican Centrist Governor in a GOP with little room for centrists and an all Democratic delegation in Congress poised to take new leadership while also divided over the future of their party. Guests: Nancy Gertner, former Massachusetts federal judge, senior lecturer at Harvard Law School and WBUR legal analyst.

By Annette Gordon-Reed: The documents most closely associated with the creation of the United States—the Declaration of Independence and the Constitution—present a problem with which Americans have been contending from the country’s beginning: how to reconcile the values espoused in those texts with the United States’ original sin of slavery, the flaw that marred the country’s creation, warped its prospects, and eventually plunged it into civil war. The Declaration of Independence had a specific purpose: to cut the ties between the American colonies and Great Britain and establish a new country that would take its place among the nations of the world. But thanks to the vaulting language of its famous preamble, the document instantly came to mean more than that. Its confident statement that “all men are created equal,” with “unalienable Rights” to “Life, Liberty, and the pursuit of Happiness,” put notions of freedom and equality at the heart of the American experiment. Yet it was written by a slave owner, Thomas Jefferson, and released into 13 colonies that all, to one degree or another, allowed slavery.