Media Mentions

An op-ed by Elizabeth Bartholet. Like many others, I am outraged by the egregious incidents of sexual misconduct made public recently through carefully documented journalism. I applaud the removal of many alleged perpetrators who have clearly abused their positions of power, often through force and even violence. I celebrate those who have stepped forward to call out sexual misconduct and demand changes in the degrading culture that has characterized working conditions for women in too many settings for too long. However, I am concerned that in the recent rush to judgment, principles of basic fairness, differences between proven and merely alleged instances of misconduct, and important distinctions between different kinds of sexually charged conduct have too often been ignored.

An op-ed by Cass Sunstein. The White House was quick to condemn a federal judge’s decision last week striking down the Trump administration’s efforts to terminate the Deferred Action for Childhood Arrivals program. It called the ruling “outrageous,” and President Donald Trump tweeted that it shows “how broken and unfair our court system is.” But the judge’s decision to invalidate the program’s termination, and thus to protect young immigrants who were brought to the U.S. illegally as children, was not outrageous. Strictly as a matter of law, it was eminently reasonable – whatever Congress does or does not do in the coming days and weeks.

A loophole in the new U.S. tax law could allow multinational corporations like Apple Inc to avoid paying billions of dollars in taxes on profits stashed overseas, according to experts...By manipulating their foreign cash positions, a determining factor under the new law, a U.S. multinational could potentially save money by shifting profits to the lower rate from the higher one, according to Stephen Shay, a senior lecturer at Harvard Law School...“This is clearly the result of rushed legislation,” said Shay, formerly a top Treasury Department tax official.

Jurors couldn’t agree the first time around whether to accept a woman’s story that “America’s Dad,” Bill Cosby, sexually assaulted her over a decade ago. Now he faces a retrial in less than 90 days in a vastly different cultural climate, one in which powerful men from Hollywood to the U.S. Senate are being toppled by allegations of sexual misconduct...Diane Rosenfeld, a lecturer and director of a gender violence program at Harvard Law School, believes the floodgates of victim support opened after the Weinstein allegations and not after Cosby’s accusers came forward for two reasons: perceived credibility of the victims and the likability of the accused. “Bill Cosby had been such a treasured American hero, giving us this friendly, accessible view of a successful African-American family,” she said. “He was such a loveable public presence, his accusers didn’t have as much power collectively or public notoriety as victims in the Weinstein case.”

Legal experts have been saying for months that Energy Secretary Rick Perry’s plan to upend energy markets in order to prop up uncompetitive coal and nuclear power plants was destined to fail. Monday’s unanimous dismissal by the Federal Energy Regulatory Commission -- an independent agency with four of its five members appointed by President Trump -- only confirmed that view...“If you look at the order on Monday, I think FERC starts out by reiterating its preference, its policies, for promoting competition, and quickly then rejects the proposal as unjust and unreasonable,” said Ari Peskoe, senior fellow with Harvard Law School’s Environmental Law Program. “They don’t waste a lot of time on the proposal. I think they just view it as completely inconsistent with everything the commission has done over the past 20 years.”

An op-ed by Noah Feldman. The new federal tax on the investment income of universities with endowments of more than $500,000 per student is terrible policy, raising minimal revenue while imposing costs on financial aid. But it’s also something much worse: To the extent it targets institutions whose faculties skew liberal, the law violates the First Amendment. It’s squarely unconstitutional for the government to impose taxes on the basis of the views expressed by the entities being taxed. Although it might be a challenge to prove it in court, it is common sense that the law was designed to express conservative resentment against the academy.

Cliven Bundy wanted to walk out of the courtroom in his jail jumpsuit and ankle shackles. Deputy marshals blocked him from doing that. But if it hadn’t been for “flagrant misconduct” committed by federal prosecutors and investigators in the case, the Nevada cattleman may not have been walking out at all...The report suggests that parallel construction may be being employed to conceal information gathered through legally questionable methods. Whether it is obtained unlawfully or not is beside the point, according to Nancy Gertner, a Harvard Law School lecturer who served as a federal judge from 1994 to 2011, since the practice transfers the decision of what information gets disclosed to defendants from judges to law enforcement and prosecutors. “You can envision a situation where they think they’re doing something legal but they’re not sure, so they use parallel construction,” she adds.

A new legal challenge seeks to end indefinite detention without trial at Guantanamo Bay, as lawyers for 11 men who have been held at the military facility for up to 16 years argue that their imprisonment has gone on too long...Jack Goldsmith, a professor at Harvard Law School who has written extensively about national security issues, said that assertion, and the argument that the Trump administration has failed in its responsibility to examine each detainee’s case individually, is unlikely to succeed in court. “It is doubtful but conceivable that those arguments could get traction,” Goldsmith said in an email, also referring to the motion’s argument that Trump has already lost legal challenges that assert he has demonstrated bias against Muslims.

What happens when the parents who created frozen embryos go to war with each other over whether to procreate with them or destroy them? That's the battle now being waged before the Colorado Supreme Court by the now-divorced Mandy and Drake Rooks...The Rooks case is different because it frames the dispute in constitutional terms: Does the right to procreate trump the right not to? "For the first time," says Harvard law Professor Glenn Cohen, there’s a chance "we’ll actually get a ruling about what the US constitution means or doesn’t mean in this context."

Former students of a for-profit college who say they were duped into paying for worthless degrees could get some of their money back, thanks to a recent motion in the now-defunct school’s bankruptcy case. The trustee overseeing the bankruptcy of ITT Educational Services, a for-profit college chain, which collapsed last year, filed a motion Wednesday urging the judge in the case to accept a settlement with a class of former students...“In our view, the proposed settlement agreement is a victory for former students who were defrauded by ITT,” the students’ lawyers at Harvard Law School’s Project on Predatory Lending wrote in an email to students Wednesday evening. “However, we know that the student class still faces billions of dollars of federal and private student loans from ITT and we will continue fight for all ITT-related debt to be canceled.”

When the Dance Theatre of Harlem was founded in 1969, it did more than prioritize African-American ballet dancers—it inspired them. That’s the effect the company had on Marcia Lynn Sells, a young dance student in Cincinnati. After attending a performance, she recalls seeing classical dancers who looked like her and who made her believe that she could achieve her dream of becoming a professional ballerina. In 1976, Sells moved to New York City and joined the Dance Theatre of Harlem under the direction of its co-founder, Arthur Mitchell. Fast-forward four decades and Sells is now dean of students at Harvard Law School, and her legal career has been as impressive and inspiring as any grand jeté.

Thousands of students nationwide who attended the now-defunct ITT Technical Institute would have nearly $600 million in loans canceled under a proposed court settlement, a significant win for consumers in Massachusetts and elsewhere who have long claimed that the for-profit chain defrauded them out of money and an education...The settlement is “a victory for former students who were defrauded by ITT,” according to a letter sent to former ITT students by Harvard University’s Project on Predatory Student Lending, which represented consumers in the bankruptcy case. “However, we know that the student class still faces billions of dollars of federal and private student loans from ITT, and we will continue fight for all ITT-related debt to be canceled.”

An op-ed by James Tierney. The unchecked flood of opioids into our country has caused unspeakable damage, and the companies that manufacture them will inevitably be held accountable. When that moment comes, it is vital that we avoid the mistakes made in our attempts to hold Big Tobacco accountable. I helped coordinate the tobacco lawsuits of the 1990s, which ended with a giant settlement deal that would cost cigarette makers more than $200 billion and require major changes to the industry. But much of that money was wasted, and countless people have died as a result. We can’t let that happen again, and now is the time to start talking about what a Big Tobacco–style national settlement with Big Opioid should look like — and to demand nothing less from our state and federal leaders.

Starting last month, after a 3-2 majority of Republican appointees were confirmed, the National Labor Relations Board reversed four Obama-era decisions and one from the Bush years that bolstered protections for workers. Trump's influence at the NLRB is also being wielded by the general counsel he appointed, Peter Robb, who was confirmed by the Senate in November..."I think that's a bellwether issue as to whether this leadership cares about these statutes making sense and applying today," said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, who served as head of policy at the Department of Labor until President Trump took office. "Or is this just a way of letting everybody fend for themselves, without the protections that they were supposed to have?"

An op-ed by Lawrence Lessig. Almost a year ago, a bunch of us began talking about how to fix an increasingly dangerous flaw in the mechanics of our Republic — the Electoral College. We had just witnessed the second in the last three Presidents get elected without winning the popular vote. It was quickly becoming apparent that this was not a once-in-a-century problem, but an increasingly likely part of our democratic future.

President Donald Trump on Wednesday vowed to take a “strong look” at the nation’s libels laws in the wake of the publication of the best-selling “Fire and Fury: Inside the Trump White House,” which portrays him as a dysfunctional leader presiding over an administration in chaos...Laurence H. Tribe, a professor of Constitutional Law at Harvard Law School, responded Wednesday by suggesting “President Trump seems not to know that under current law public officials like him can already sue for damage to reputation caused by knowingly false statements. “That standard, which is the one Trump says he’d like to enact, is the very one that was articulated by the Supreme Court in New York Times v. Sullivan, decided in 1964,” Tribe said.

An op-ed by Noah Feldman. A federal judge in California on Tuesday blocked President Donald Trump from rescinding the Deferred Action for Childhood Arrivals program, which he had planned to phase out in March. The impulse to protect the so-called Dreamers is admirable. But legally speaking, the opinion can’t be correct. If President Barack Obama had the legal authority to use his discretion to create DACA in the first place -- itself a close legal question -- Trump must have the legal authority to reverse DACA on the ground that he considers it to have exceeded Obama’s powers.

Thousands of webpages with climate change information have been removed or buried at agencies including U.S. EPA, the Interior and Energy departments and elsewhere across the government, according to a new report...Joseph Goffman, executive director of Harvard Law School's Environmental Law Program and a former Obama EPA official, said the report "illustrates, in a dramatic way, just how much the public at large, and the stakeholders and public officials charged with representing the public's interests, depend on the federal government to assemble and disseminate top-quality peer-reviewed scientific and technical information."

The Raiders will reportedly pay Jon Gruden $100 million over 10 years to come out of the booth and get back to coaching...Gruden does have a Super Bowl win on his resume. His Buccaneers beat the Raiders following the 2003 season. It happened just a few short months after the Raiders traded Gruden to Tampa Bay for four draft picks. On the other hand, Gruden also hasn’t coached at all since he was fired by the Bucs in 2009. Still, Peter Carfagna, a sports law professor at Harvard and the director of the sports law track at the University of Miami’s law school, said it makes sense in this circumstance. “It’s not a surprise, because when you look at building a multi-billion dollar stadium in Las Vegas, and sure. It just would be very smart to play off of this as kind of a one-off, I would think, in the pros,” Carfagna said.

An interview with Mihir Desai...Republicans in Washington struck a tax overhaul deal just before Christmas. It was a major political victory for the GOP Congressional leadership and President Donald Trump. Supporters say the tax overhaul will spur economic growth but opponents say it was just a Christmas present for corporations and the nation’s most wealthy.

An op-ed by Cass Sunstein. When people get new information – about immigration, about President Donald Trump, about climate change – will they change their minds? It’s common to say that if they don’t, the reason is “confirmation bias," which means that people are far more likely to accept information that supports their current beliefs. But in some situations, what really matters is something different and even more insidious: “desirability bias.” When people display desirability bias, they find information more credible when it pleases them – even if it fails to confirm their pre-existing beliefs.