Media Mentions

Hollywood producer Harvey Weinstein has said he plans to sue the New York Times because the paper only gave him two days to respond to allegations that he sexually harassed women for decades. Does he stand a chance in court?...“The short answer is that he’s almost certainly a public figure who can prevail only if he shows that the paper acted with reckless disregard of whether the story was true or false,” Harvard Law professor Mark Tushnet told TheWrap. “Departing from journalistic practices by not giving him ‘enough’ time to respond almost certainly isn’t enough to show reckless disregard.”

An op-ed by Cass Sunstein. I first heard about Richard Thaler in the 1980s, in a locker room at the University of Chicago. I had run into Steve Shavell, an economist at Harvard Law School, who asked me what I was working on. I mumbled some question I had, about whether people really behaved as rationally as economists said they do. Shavell responded without a lot of enthusiasm: “Oh, you should be reading Thaler, that guy from Cornell.” That afternoon, I looked up Thaler’s work. It was like a burst of sunlight, or the first chord of the Beatles’ “A Hard Day’s Night.”

An op-ed by Nancy Gertner. Governor Charlie Baker’s proposal to increase penalties for those whose illegal drug distribution causes an overdose death sounds good — at first glance. Increasing sentences usually does. The approach also sounded good in the 1980s and 1990s, when a crack cocaine epidemic led Congress to approve of mandatory minimum sentences that doubled or tripled drug penalties — 10- or 20-year sentences, even life imprisonment. But the move did little to stem drug-related crimes or addiction.

President Donald Trump claimed in September that he did away with the Clean Power Plan, one of the Obama administration’s most ambitious efforts for tackling climate change. The plan was the first to set a limit on carbon pollution from existing power plants. Dispensing with the regulation, Trump told a rally in Alabama, was simple as “Boom, gone.”...“Pruitt doesn’t believe in this stuff, so he’s actually in a paradoxical position,” says Joe Goffman, the former EPA attorney who is now at Harvard Law School’s environmental program. “If they do propose a replacement for the Clean Power Plan, what he’ll be doing is putting his signature on the proposal which will require to some extent power plants to address their carbon emissions.”

An interview with Nancy Gertner. More fall out against Harvey Weinstein on Monday — as Hollywood heavyweights come out against the six-time Oscar winning producer. They're reacting to last week's searing New York Times story that Weinstein allegedly sexually harassed women for years, and for years kept it all quiet through at least eight legal settlements.

...It has been a long time coming, but the one or two-year MBA course feels like the Grand Tour of business education in an age of Airbnb. Its graduates are being crowned with powdered wigs just as the digital revolutionaries are sharpening the guillotine...In his new book The Wisdom of Finance, [Mihir Desai] writes about how many of his MBA students avoid risk in order to retain their “optionality”, a concept they had picked up from finance. They “end up,” Prof Desai says, “remaining in companies . . . that were initially intended as way stations that would create more optionality on the path to their actual entrepreneurial, social, or political goals. They often end up saying to themselves, ‘Why not stay another year and create more options for down the road?’ The tool that was supposed to lead to more risk-taking ends up preventing it.”

One of the best policies in America might just have the worst name: libertarian paternalism. Fortunately it's better known as 'nudge theory', and it has saved billions of dollars, huge numbers of lives, and subtly increased the nation's standard of living. How does it do all that? Harvard Law School professor Cass Sunstein explains that libertarian paternalism uses tested behavioral science to present people with choices that could improve their lives.

Facebook has said ads bought by Russian operatives reached 10 million of its users. But does that include everyone reached by the information operation? Couldn’t the Russians also have created simple — and free — Facebook posts and hoped they went viral? And if so, how many times were these messages seen by Facebook’s massive user base? The answers to those questions, which social media analyst Jonathan Albright studied for a research document he posted online Thursday, are: No. Yes. And hundreds of millions — perhaps many billions — of times...Albright, who also is a faculty associate at Harvard’s Berkman Klein Center for Internet & Society, has been studying fake news and Russian propaganda for months.

An op-ed by Cass Sunstein. The partisan gerrymandering case argued this week in the Supreme Court presents one of the most important, difficult and intriguing legal questions of the last quarter century. The constitutional issue in the case, coming out of Wisconsin, is whether and when courts should invalidate redistricting plans that are designed to give a strong advantage to one political party. In extreme cases, such plans are an obvious violation of the Constitution. The problem is that it’s not at all obvious how courts can police them.

An op-ed by Noah Feldman. Justice Anthony Kennedy’s comments during oral arguments in the partisan gerrymander case, Gill v. Whitford, are fueling speculation that he might provide the decisive fifth vote for a historic decision that could reshape electoral politics. If he does, however, that could spell trouble for gay-rights advocates who also need Kennedy’s vote in the wedding cake case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. As the U.S. Supreme Court’s swing voter, Kennedy has a habit of issuing major liberal decisions alongside outcomes that read as conservative -- all the while considering himself internally consistent.

...For decades, many logical, rational people ignored the crusade against elites because it was built on such an obviously illogical, irrational premise. Instead of engaging political opponents in an honest debate about issues troubling the nation, it sought to silence those opponents simply by presenting them as members of an effete, out-of-touch, know-it-all elite...Before she was a Pulitzer Prize-winning author, Harvard professor, and ambassador to the UN, Samantha Power was an immigrant kid from Ireland growing up in Georgia. “If I had stayed in Georgia and not gone off to Yale and Harvard Law School and been blessed to have this amazing but, in its way, removed education, maybe I would be better at selling our climate change policies to the skeptics I grew up with,” she tells me. “We’ve got to find a way to translate these important issues into terms that can build public support in red and blue communities.”

The rapid-fire push by the Trump administration to wipe out significant chunks of the Obama environmental legacy is running into a not-so-minor complication: Judges keep ruling that the Trump team is violating federal law...Policy experts say the reversals also underscore the fact that crucial positions within the E.P.A. and the Interior Department remain unfilled, and that a lack of trust exists between political appointees and career staff members. “The career people at E.P.A. and D.O.J. are top-notch lawyers,” said Richard J. Lazarus, an environmental law professor at Harvard University. “But you have political people come in, and they don’t trust them at all and try to do it without them.”

One key question looming over the Republican tax proposal is how it will keep companies from fleeing the U.S., the same problem that has pressured Republicans and Democrats to seek action and that President Trump has frequently pledged to fix. The uptick in corporate "inversions" and foreign takeovers, turning U.S. companies into Canadian, Irish and English businesses, has proved the top incentive for Congress to take on the monumental effort of overhauling the tax code...Stephen Shay, a Harvard Law School tax expert and former corporate tax lawyer, noted that if the global minimum tax is applied to corporations' total overseas profits, multinationals could game the system..."People like myself in my prior career can blend high and low rates, and in some cases this will incentivize foreign investment," Shay told senators.

Hundreds of pro-life supporters stopped traffic around the Boston Common as they marched, sang, and prayed during the 2017 Massachusetts March for Life on Oct. 1. Hosted by Massachusetts Citizens for Life, the event began at 1 p.m. with a rally at the Parkman Bandstand in Boston Common. The rally included live praise and worship music and a series of pro-life speakers...Other marchers included members of the Harvard Law Students for Life. "I think that this is the most important social justice issue of our time," said Steven Obiajulu [`18], a Harvard Law student and member of the group.

Can Donald Trump be impeached? Cass Sunstein’s new book Impeachment: A Citizen’s Guide carefully avoids addressing that question directly: Trump’s name is not mentioned in the text. But despite the effort to avoid current political controversies, the question of whether Trump can, or will, or should be impeached will be on the mind of every reader who picks up the book...The founders wanted a strong, active executive branch, but they feared that the president could become corrupt and trample on individual rights. So they devised a range of checks on executive power, including impeachment. Thus, Sunstein told me by email, “We the People have a way to protect ourselves.”

A New York-based electricity provider is suing two Minnesota public agencies over a law it claims improperly favors home-state companies for new power line projects. The 2012 state law gives "incumbent" electricity transmission providers in Minnesota a "right of first refusal" for new power line projects. In other words, they get first dibs over companies that don't currently have transmission lines in Minnesota..."There are a few other states that have such laws," said Ari Peskoe, a senior fellow at Harvard Law School's Environmental Policy Initiative. None has been tested in a federal court. The suit by LSP Transmission "could set an important precedent," Peskoe said.

Late last week, the U.S. Supreme Court announced that it will add a case critical to the future of public-sector unions to its docket. With President Donald Trump's appointment of conservative-leaning Justice Neil Gorsuch, many expect the court to rule against the unions. Such a decision would energize the recent resurgence of state laws that effectively reduce the power of unions in both the public and private sector...“It is an enormously big deal,” says Harvard law professor Benjamin Sachs, who often writes about labor issues. “Unions have to provide services and representation equally to everyone in a bargaining unit. But if you can get those services for free, a lot of people won’t pay them. You have a classic free-rider situation.”

An op-ed by Susan Crawford. Two very American stories about high-speed internet access are colliding right now, and the dissonance is striking. One is like a five-minute Shakespearean tragedy, neatly telling the story of what a high-priced local cable monopoly does (and doesn’t do). The other is a hopeful narrative of intelligent, effective government intervention. For the brief but evocative tragedy, you probably can guess who the high-priced local cable monopoly is: Comcast.

A letter to the editor by Charles Fried. Re “Top Court Puts Gerrymandering on Unclear Path” (front page, Oct. 4): At oral argument, the supremely intelligent chief justice said that proving and remedying gerrymandering might require the judiciary to parse “sociological gobbledygook.” Sorry, but that’s no excuse for not doing your job and saving our democracy. Every day, federal judges must pass on exquisitely intricate arguments in patent cases and on the admissibility of expert testimony in a wide variety of technical fields. Indeed, the social science here is not that difficult. An outside lecturer came to my grandson’s high school and explained it to the complete comprehension of a class of bright 15-year-olds.

It felt like a family reunion — with 600 relatives. That many friends, former students, colleagues, and well-wishers gathered Monday in a joyful celebration of the life and career of Harvard Law Professor Charles Ogletree, advocate for Civil Rights, author of books on race and justice, and mentor to former President Barack Obama and first lady Michelle Obama...And when John Manning, the Morgan and Helen Chu Dean and Professor of Law at HLS, announced that a group of Ogletree’s friends had established an endowed professorship in his honor, the Charles J. Ogletree Jr. Chair in Race and Criminal Justice, the news brought down the house...The chair was made possible through the generosity of a group of Ogletree’s close friends, said David Wilkins, Lester Kissel Professor of Law. “When the history of Harvard Law School in the 20th century is written, Charles Ogletree’s name will be among the first ones mentioned,” said Wilkins...The panelists told stories to “bring home the Tree-ness of Tree,” as Randall Kennedy, Michael R. Klein Professor of Law, explained...Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, said, “Throughout his career, Ogletree has embodied law in the service of society, just the same as other great beacons of the American legal profession, men and women like Thurgood Marshall, Constance Baker Motley, and Charles Hamilton Houston.”...Another frequent participant was Obama classmate Kenneth Mack ’91, the Lawrence D. Biele Professor of Law. Mack said he learned about Houston in a Saturday School class. It was a time, he added, when few people knew about the lawyer whom Ogletree deemed one of the 20th century’s greatest legal minds and Civil Rights lawyers.

European Union regulators’ tax crackdown on Amazon.com Inc. -- like the EU’s case against Apple Inc. -- should spur U.S. policy makers to address companies’ aggressive offshore tax-avoidance strategies before it’s too late, experts said...The rate and formula for that tax haven’t been set, but experts note that the framework calls for it to be applied “on a global basis,’’ minus credits for foreign taxes paid -- suggesting that companies could blend their results from high-tax countries like Germany with low-tax countries like Ireland to even out their global effective rates. That wouldn’t do much to prevent profit shifting to tax havens, according to Harvard Law professor Stephen Shay, a former top U.S. Treasury Department official during the tax overhaul of 1986. Instead, Shay said during an appearance before the Senate Finance Committee Tuesday that a minimum tax should be calculated on a per-country basis, preferably at 80 percent of the corporate rate.