Media Mentions

The year 2017 may turn out to be when behavioral economics entered the mainstream after a leading practitioner in the field won a Nobel prize for his work. Behavioral economics is the study of how psychology affects the economic decision-making processes of individuals and institutions. Research in the field has led governments like those in the U.K. and U.S. to create teams of behavioral scientists to find ways to tweak citizens’ behavior to improve their welfare, for example, by helping more people enroll in retirement plans...Beyond the ethics, do people actually like when governments nudge them toward “better” behavior through defaults, labels and other means?...[Cass] Sunstein’s research suggests the answer is “yes,” most people “welcome nudges that help them live better lives.” “I have found that this enthusiasm usually extends across standard partisan lines,” he explained.

It’s almost quaint to think that just five years ago, Mark Zuckerberg cheerfully took credit for major pro-democracy movements during Facebook’s IPO launch...Today, the company has to reckon with its role in passively enabling human-rights abuses. While concerns about propaganda and misinformation on the platform reached a fever pitch in places like the United States in the past year, its presence in Myanmar has become the subject of global attention...As Jonathan Zittrain of Harvard’s Berkman Klein Center for Internet & Society put it, “[Facebook] abdicating feels weird because quite often (and this is sometimes reflected in the law) if you’re in a position to do something, to alleviate a great harm—and you’re profiting, you’re not a bystander, you’re implicated or involved—we tend to think you have a responsibility to do something.”

When President Trump adds his distinctive signature to the tax bill, he will also be making a huge bet that the Republican strategy of deep cuts for businesses and wealthy individuals will fuel extraordinary growth across the board...Some provisions of the bill were intended to be sharp and short. Next year, for example, businesses will be able to borrow money and deduct the cost of those loans at the current rate of 35 percent. But later on, when they reap the profits, they will pay a tax rate of only 21 percent. That could end up causing firms to simply shift the timing of investments they would have made regardless of a change in the tax code. “The really hard question a year from now is going to be is how much of the miniboom we see is just an acceleration of stuff that was going to happen anyway or additional investment that is really going to spur the economy,” said Mihir A. Desai, a professor of finance at Harvard Business School.

The Education Department is abandoning the Obama administration’s practice of wiping out the loans for all students who were swindled by the now-defunct Corinthian college chain. Under President Barack Obama, tens of thousands of students deceived by the for-profit school had more than $550 million in student loans canceled in full. But Education Secretary Betsy DeVos announced Wednesday she is putting a new process in place that she says will be more efficient. The department will now look at average income in order to determine the value of a student’s education. Then it will decide whether to forgive the loan partially or in full. Eileen Connor, a litigator at Harvard University’s Project on Predatory Student Lending, called the decision “unlawful and arbitrary.”

“The quality of Indian law firms and Indian lawyers at the top of the market is as good as anywhere in the world. That is an important point to emphasise,” said David Wilkins, professor of law at Harvard Law School. Wilkins was making the point that India’s legal sector is ready for the entry of foreign law firms, in a phased manner. A move that has been contemplated by a succession of Indian governments over the years and continues to be an imminent possibility. Indian law firms will have to fight their foreign counterparts harder over talent than clients, Wilkins added. The Harvard Law School - Center on the Legal Profession, of which Wilkins is the faculty director, has recently completed a six-year-long study on the impact of globalisation on India’s legal profession. The book tracks the rise of India’s corporate legal sector and its impact on the economy and society.

An op-ed by Andrew Crespo. Whether ours shall continue to be a government of laws and not of men is now for … ultimately the American people” to decide. Those were the words of Archibald Cox, the Watergate Special Prosecutor, on that fateful Saturday night in October 1973, just moments after he was fired by the president whom he was investigating. A question for the American people to decide. To their credit, the American people responded, with what Attorney General Elliot Richardson, himself also removed from office that night, would later call a “public uproar” of “overwhelming power.”

Harvard will likely pay tens of millions annually in added federal taxes after congressional Republicans passed a $1.5 trillion tax bill Wednesday that included a tax on returns from large university endowments. University President Drew G. Faust called the new endowment tax “unprecedented” in an emailed statement Wednesday, adding it will constrain the University’s finances and limit its capacity to fund certain programs...Tax law specialist Howard E. Abrams, a visiting professor at Harvard Law School, said he thinks provisions in the tax bill targeting colleges and universities stem from both a need to raise funds and, more broadly, from Republican disillusionment with higher education. “They need all the revenue they can get,” Abrams said. “I think there are more people in the Republican party than in the Democratic party who believe that higher education is failing the public—that it’s full of liberals teaching things that are irrelevant to getting a job. So the value of higher education seems less significant to many Republicans than to many Democrats.”

An essay by Jeannie Suk Gersen. Earlier this month, when a majority of Senate Democrats demanded Al Franken’s resignation after multiple allegations of unwanted kissing and groping, Bernie Sanders called for a “cultural revolution” to combat sexual harassment. The reckoning would affect “not only high-profile men,” Sanders said, but also harassers “in restaurants, in offices all over this country where you have bosses that are not famous.” Putting aside the unfortunate evocation of the Chinese Cultural Revolution, Sanders’s declaration posed a useful question: How will the current avalanche of sexual-harassment allegations toppling prominent men in media and government roll down to more mundane workplaces? As employers and employees across the country try to apply lessons from #MeToo into quotidian employment contexts, legal norms that govern workplace sexual harassment may also be poised to undergo epochal transformations.

Far and away the biggest complaint that Americans have with the tax system, poll after poll finds, is that big corporations don’t pay their fair share. So it’s more than a little startling that the tax bill Republicans are about to pass would not only slash the corporate tax rate across the board but also add a big incentive for companies to stash money overseas...Other analyses, like this one by Harvard Law School’s Thomas Brennan, are more optimistic, but even Brennan concludes that the largest corporations only used 12 percent of the money they brought back on research and development or new investment. The rest went to buying up other companies and reducing debt (both allowed under the law) and paying back shareholders through stock buybacks and dividends (not allowed).

On Monday morning the conservative-media world woke up to a savagely personal attack in National Review on the Washington Post columnist Jennifer Rubin. The outburst might seem a textbook case of the narcissism of petty differences within the conservative world. Both the author of the denunciation, Charles C. W. Cooke, and its target, Rubin, are right-leaning skeptics of Donald Trump. What on earth could they be arguing about? And does it matter?...Researchers at Harvard’s Berkman Klein Center have quantified how dramatically far-right media sources such as Breitbart News have overtaken and displaced traditional conservative outlets such as National Review. By tallying links, citations, and other indicators of influence, they found: "The center-left and the far right are the principal poles of the media landscape. The center of gravity of the overall landscape is the center-left."

A response to Laurence Tribe by Alan Dershowitz. My colleague Larry Tribe’s response is unfortunately not responsive to my arguments. He erects several straw men, which he proceeds to knock down, but he fails to respond to my most compelling arguments. Two striking examples: Larry correctly points out that congressional immunity is based explicitly on the text of the Constitution, but he fails to deal with my other primary example—judicial immunity.

It began with a news story, and then a tweet, and suddenly it seemed like everything had changed overnight. 2017 will forever be known as the Year of the Reckoning. Or, more precisely, the year of the beginning of the reckoning. Because at year’s end, the phenomenon of powerful men being knocked off their perches by allegations of sexual misconduct — in Hollywood, on morning television, in chic restaurant kitchens, in the U.S. Senate — showed no signs of slowing. Each morning, we awoke to ask: “Who’s next?”...And what about the alleged abusers we’ve never heard of, because they’re not famous? “There have been stunning accounts of farm workers harassed in the field, factory workers on lines, restaurant workers,” says law professor Catharine MacKinnon, who decades ago pioneered the legal claim that sexual harassment is a form of sex discrimination. “They don’t have the high-profile man ... but I’m telling you, to the women he does it to, he’s plenty big.”

An article by Mihir Desai. The Senate and House are poised to vote on a tax plan, starting on Tuesday. Here are some questions to consider as we approach 2018: How much of this year's stock market gains reflect anticipation of corporate tax cuts?

An op-ed by Cass Sunstein. Whenever a President’s political opponents despise his policies, they are tempted to start talking about impeachment. That’s certainly true today, with increasing calls, on the part of President Trump’s harshest critics, for taking the impeachment process seriously. Whether Americans like Trump or loathe him, they need to understand what that process is all about. It’s a crucial part of the constitutional plan. Those who lived through the American Revolution rejected the idea of a monarchy. Without the power of impeachment, it’s doubtful that We the People would have ratified the Constitution at all.

An op-ed by Alex Whiting. The International Criminal Court’s Assembly of States Parties agreed late last week that the ICC can now prosecute crimes of aggression, making it the fourth crime (after war crimes, crimes against humanity, and genocide) to fall within the Court’s jurisdiction. The decision will become effective on July 17, 2018. This development is enormously significant because it is the first time since Nuremberg’s Nazi trials that an international tribunal has been able to prosecute this crime, but given how narrowly they defined the crime, and the scope of the ICC’s jurisdiction, its significance may be largely confined to its declarative and symbolic force, though this is a value that should not be underestimated.

After spending most of its first year tearing down climate rules, the Trump administration is now taking steps to write its own. U.S. EPA Administrator Scott Pruitt yesterday asked for wide-ranging comment about how to replace the Obama administration's signature climate change rule, the Clean Power Plan. In the lengthy document known as an advance notice of proposed rulemaking (ANPR), the administration offered important clues about the way forward, claimed that the Obama rule was illegal and gave critics fodder for counterattacks...Changing the program is therefore likely to draw lawsuits, Jody Freeman, a former Obama climate adviser, said in a recent interview. "That's been a moving target, and we always expect a Republican administration to give the old coal plants more room," said Freeman, who is now a professor at Harvard Law School. "Then it becomes a legal battle ... that gets into the trench warfare that's always been true of New Source Review."

...The whole concept of "cyberspace" implies the occupancy by people, or entities that represent people, accessing resources, data files, and applications by moving from place to place like browsing a shopping mall..."There's going to be a lot more 'what's,'" described noted security expert and author Bruce Schneier, referring to a communications system whose ratio of entities to people will only grow. "What sent this? It's going to be a streetlight sensor that's telling me the traffic on this street is such that I'm going to try this other way. Or that I should brake now and not in fifteen milliseconds, because that'll save my life."

Robert Mueller's appointment as special counsel to lead the Russia probe in May caught President Donald Trump by surprise. Seven months later, the President's defenders have gone into overdrive hoping to discredit the investigation as Trump insists publicly he has no plans to fire Mueller...Harvard Law School Professor Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel during George W. Bush's administration, has suggested the President will only come under further scrutiny if he tries to fire Mueller. "I don't see how firing Mueller gives Trump relief from the investigation. More likely the opposite, since it would call Trump into greater suspicion. Just as it got worse for him after he fired (former FBI Director James) Comey, it would get yet worse for him if he fired Mueller," Goldsmith tweeted.

An op-ed by Noah Feldman. The House of Representatives passed the National Rifle Association’s favorite gun-rights expansion bill earlier this month, and gun-control advocates locked and loaded their favorite legal arguments against it. It’s a terrible measure, to be sure, forcing states to allow people licensed to carry concealed weapons in one state to carry them anywhere else. But that doesn’t mean it’s unconstitutional, and liberals should be careful what they wish for.

An op-ed by Laurence Tribe. My friend Alan Dershowitz has restated in Maclean’s his now familiar arguments against holding a sitting president fully accountable for abusing his executive powers. As I and other constitutional scholars have explained, those arguments don’t withstand scrutiny. They rely on the strange idea that, because the president is head of the executive branch, and because the three branches are supposed to be independent of one another, nothing the president does in his purely executive capacity, like granting a pardon or firing a subordinate, can be part of a criminal or impeachable obstruction of justice.

An interview with Hal Scott. This week on CFTC Talks, we bring on Harvard Law Prof. Hal Scott, author of "Connectedness and Contagion." We cover the 2008 financial crisis, what happened and what regulation has done since. Has regulation made the US financial system safer and at what cost? What is the future direction for fin reg?