Media Mentions

An op-ed by Noah Feldman. What if you could vote in the general election -- but not the primary? Reversing itself, an appeals court has upheld the Tucson city council’s strange electoral system, which creates exactly this anomaly for some voters. The result is probably legally correct. But the voting system is fairly dysfunctional, and should be changed. Tucson’s practice, which dates from 1929, isn’t completely unheard of, but it’s genuinely strange.

When the University of Chicago recently came out against the use of so-called “trigger warnings,” saying they represented a danger to campus free speech, it represented something of a rarity. Few universities have taken a stance on trigger warnings, which initially were used to alert audiences that an upcoming discussion on, say, rape or other violence could trigger a trauma response for some. Most schools leave the matter up to individual professors...“How could a teacher not be affected by this, if they would like to create a classroom experience that is not causing distress?” said Harvard Law School professor Jeannie Suk Gersen in an e-mail. “So teachers, myself included, make some compromises.” In a 2014 New Yorker piece, in fact, Gersen wrote that student complaints regarding the teaching of rape law had grown so significant that roughly a dozen new criminal law teachers she’d spoken with had decided against teaching rape law altogether.

One of Louisiana's largest health insurers is facing a federal complaint from a New Orleans-based community health care provider that claims the company is discouraging people who need costly HIV medications from participating in its insurance plans. Humana offers insurance plans on the Affordable Care Act marketplace but the federal complaint, which was filed jointly by CrescentCare and the Center for Health Law & Policy Innovation at Harvard Law School, accuses the health insurance giant of routinely refusing to cover life-saving HIV medications or limiting access by charging customers a significant share of the costs for HIV drugs...Similar complaints were filed against insurers in six other states, including five other states where Humana has plans.

AIDS Foundation of Chicago ( AFC ), on Sept. 6, filed a formal complaint with the U.S. Department of Health and Human Services' Office for Civil Rights ( OCR ) against Humana, charging that the insurance giant routinely denies coverage for or limits access to HIV medications through prohibitively high cost sharing requirements. AFC filed the complaint in partnership with Harvard Law School's Center for Health Law and Policy Innovation ( CHLPI ), which has partnered with a number of health organizations for complaints against insurance companies in other states. According to the complaint, Humana offers policies on the Affordable Care Act marketplace but regularly refuses to cover lifesaving medications and requires significant cost-sharing from patients with certain conditions such as HIV. Insurance companies on the marketplace cannot refuse to exclude policyholders because of pre-existing conditions..."CHLPI and AFC are using the OCR process to shine a light on discrimination occurring under the cloak of supposedly neutral insurance plan benefit design. When an insurer requires chronically ill patients to pay a disproportionate share of the cost of medication, it violates federal law," said Robert Greenwald, CHLPI's faculty director and clinical professor of law at Harvard Law School. "These are landmark Complaints that will benefit everyone looking to receive equitable, comprehensive health care through the marketplaces by helping to define anti-discrimination law at a time when insurers are covering less and less."

A legal ruling that would send 28 detained immigrant mothers and their children back to Central America despite their claims they would be persecuted upon return was upheld on Monday by a federal appeals court. A panel of the U.S. Court of Appeals for the Third Circuit denied asylum to the women from Honduras, Guatemala and El Salvador. Judge D. Brooks Smith wrote in the decision that the justices were "sympathetic to the plight" of the petitioners, but he added that since the women arrived in the United States "surreptitiously" they were not entitled to constitutional protections...Gerald Neuman, a Harvard Law School professor who co-chairs the school's Human Rights Program, said Monday the ruling is a "shocking outcome." "This court has held that these people have no rights under the Suspension Clause," he said, referring to a section of the U.S. Constitution which says the right of habeas corpus cannot be suspended unless in cases of rebellion or invasion. Neuman pointed out that courts have even ruled that prisoners held at Guantanamo Bay have the right to contest their imprisonment. Neuman and more than a dozen scholars and organizations filed a brief in support of the immigrants' arguments, outlining why they should have the right to contest their detention.

Big shareholders do not always play nice. They strip away founders’ responsibilities. They side with activist hedge funds. They vote for takeovers even when a board is resisting. Those are the types of shareholders that Peter McCausland encountered toward the end of his three-decade reign at the industrial gas distributor Airgas. By 2015, he could not take it anymore. He searched globally for a buyer...The ruling was — and remains — controversial. “The court’s case allowing the indefinite use of the poison pill for this purpose established an unfortunate precedent,” said Lucian A. Bebchuk, director for the Program on Corporate Governance at Harvard Law School. “There is significant empirical evidence indicating that, on the whole, the current expansive use of takeover defenses is detrimental to the interests of shareholders and the economy.”

...Index funds are guided not by the wizardly stock-pickers of old but by number crunchers who buy lists of representative securities and hold them, rise or fall. They have cut costs and boosted profits for large and small investors. But U.S. and European professors scrutinizing the impact of the Big Three index-fund purveyors - BlackRock Inc., Vanguard Group, and State Street Corp. - say they see, in the triumph of indexing, not just a cheap way for investors to squeeze profits but also threats to capitalism as we know it...Joint control over major companies by few large U.S. investment managers "can help explain fundamental economic puzzles, including why corporate executives are rewarded for industry performance" instead of just their own, "why corporations have not used recent high profits to expand output and employment, and why economic inequality has risen," writes Einer Elhauge, professor at Harvard Law School, in an essay on "Horizontal Shareholding" in the Harvard Law Review that cites Azar's work at length.

An op-ed by Caleb C. Wolanek `17. Religious discrimination has no place in our democracy. Like any other form of invidious discrimination, we believe that whether someone is Christian, Muslim, Jewish, or Hindu is completely irrelevant to government decision-making...Yesterday, the ALCU filed a lawsuit on behalf of Yvonne Allen, a Christian who believes she must wear a headscarf. Government officials at the DMV in Lee County told Ms. Allen that she could not wear her headscarf in her license photo. That alone raises a religious liberty issue. But the DMV made it worse: officials directly told her that she would have been permitted to wear her headscarf if she was a Muslim. That is the very essence of religious discrimination.

James Harrison sat down with the NFL for an interview he never believed in to answer questions about a report he publicly called bulls*** for an investigation overseen by Roger Goodell, who he's repeatedly referred to as a crook, among much worse. He did it so he could play...Still, he would be likely to lose, said Peter Carfagna, a visiting sports law professor at Harvard Law School. As long as his punishment came from an agreement that was collectively bargained – both the PED policy and league CBA were – Section 301 of the Labor Management Relations stops a judge from ruling in Harrison's favor, Carfagna said. "We're pre-empted from even considering this," he said. A distinction between the PED policy and the CBA effectively doesn't matter, Carfagna said, as the league gets to decide if it thinks either policy was broken and then open an investigation.

An op-ed by Cass Sunstein. Almost immediately after a new administration takes office, it must decide on its approach to releasing information. In early 2017, incoming officials should mount an unprecedentedly aggressive transparency initiative -- above all, to disclose online, promptly and even automatically, the final products of their own fact-finding and policy-making processes. If you are skeptical about Hillary Clinton and Donald Trump, you will think that such an initiative is unlikely. But hear me out. It could well turn out to be appealing to both of them.

An op-ed by Noah Feldman. Just about the only thing dumber than judicial elections is trying to regulate what judges can say when they’re running for office. Last year, the Supreme Court struggled with this problem in a case about judicial fundraising. Now an appeals court has struck down elements of Kentucky’s nonpartisan judicial election rules that try to regulate how judges can talk about party affiliation. The court came up with a good general principle -- namely, that states can’t try and have it both ways, staging judicial elections while barring candidates from explaining why they should be elected. But the principle should be taken even further: If states choose judicial elections, then the First Amendment should require them to let those candidates speak freely, exactly like anyone else running for office.

An op-ed by Noah Feldman. Do undocumented mothers and children who are caught just after they’ve entered the country illegally deserve judicial review after immigration officials have decided they don’t qualify for asylum? If you’re a foreigner denied access to the U.S., you have no right to a court hearing. If you’ve been in the country for a while, even illegally, you’re entitled to face a federal judge before being deported. But there's a constitutional gray area that applies to undocumented immigrants who are caught within two weeks of entering the country or within 100 miles of the border.

An op-ed by Noah Feldman. Ma Bell came back from the grave Monday, saving AT&T from the supervision of the Federal Trade Commission. The FTC had sued the company for intentionally “throttling” the mobile internet for its unlimited data customers when they passed a certain usage. A federal appeals court rejected the suit on the ground that as a common carrier, AT&T is exempt from FTC regulation. The outcome is wrong, the product of a literalist reading of the laws that produces terrible real-world consequences. It should be reversed, by the courts or by Congress.

For the first time in the publication’s nearly 130-year history, the Harvard Law Review inducted a group of editors this year whose demographics reflect those of their wider Law School class—including the highest-ever percentages of women and students of color. The demographic composition of the new editors—who were selected over the summer—reflects the broader makeup of the Law School’s class of 2018, according to numbers provided by Harvard Law Review President Michael L. Zuckerman ’10. Forty-six percent of the incoming editors are women, an increase of about 10 percentage points from an average of the past three years. Forty-one percent are students of color, compared to the same three-year average of 28 percent on the Law Review...“The descriptive stats of the Review haven’t historically been inclusive and so that may signal to some people that it’s not an inclusive place, because it didn’t have an inclusive membership,” said Imelme Umana, a second-year Law student and new Law Review editor...Law Review Vice President Kaitlin J. Beach, who said she has felt frustrated in the past as a female editor, added she thinks the new class’s diversity is already shifting discussions and priorities at the Law Review.

An op-ed by Jeannie Suk Gersen. A poster for Nate Parker’s new film, “The Birth of a Nation,” to be released in October, shows a photo of Parker’s head hoisted in a noose fashioned out of a twisted-up American flag. Parker stars in, wrote, produced, and directed the film, which tells the story of Nat Turner’s life and the slave rebellion he led in 1831. The title is appropriated from the famous 1915 silent film of the same name, which is set during the Civil War and Reconstruction, and in which black men (often played by white actors in blackface) are portrayed as wanting to sexually coerce white women. Parker counters this fantasy by showing an act of sexual violence against a black woman by white men. In his film, the revolt is partly inspired by a gang rape of Turner’s wife. It is hard to avoid the sense that, in creating his film, Parker was reflecting on the rape accusation for which he was tried fifteen years ago.An op-ed by Jeannie Suk Gersen. A poster for Nate Parker’s new film, “The Birth of a Nation,” to be released in October, shows a photo of Parker’s head hoisted in a noose fashioned out of a twisted-up American flag. Parker stars in, wrote, produced, and directed the film, which tells the story of Nat Turner’s life and the slave rebellion he led in 1831. The title is appropriated from the famous 1915 silent film of the same name, which is set during the Civil War and Reconstruction, and in which black men (often played by white actors in blackface) are portrayed as wanting to sexually coerce white women. Parker counters this fantasy by showing an act of sexual violence against a black woman by white men. In his film, the revolt is partly inspired by a gang rape of Turner’s wife. It is hard to avoid the sense that, in creating his film, Parker was reflecting on the rape accusation for which he was tried fifteen years ago.

Many of the most successful immigrants and kids of immigrants in the country know each other and hang out. They belong to a community created by Paul and Daisy Soros, who have funded the graduate educations of 550 first gens — including Pardis Sabeti, a geneticist called a "genius" by Time [and Jeannie Suk Gersen].

It took Pedro Spivakovsky-Gonzalez several years and nearly 10,000 miles, on a journey that included several cities around the world, to find his calling in his hometown. The son of political refugees from the former Soviet Union and Spain, Spivakovsky-Gonzalez, J.D. ’17, was born in Boston but grew up in Spain and Canada. He studied economics at the University of California at Berkeley, completed a master’s in development studies at the University of Cambridge in England, and went to work as a research economist in Washington, D.C. It was after his stints in Cambridge and Washington that he experienced “the dissonance” of studying poverty and inequality in wealthy institutions, and the limits to making a direct impact on people’s lives as a researcher...But the real epiphany came while working at the Harvard Legal Aid Bureau, one of the School’s clinical programs and the oldest student-run organization in the United States.

Harvard Law professors rank highest nationwide in the judicial impact of their legal scholarship, according to a new study examining citations of law review articles by U.S. high courts, but no women scholars across the country placed in the top 25. The study ranked the top 25 law professors according to the number of judicial citations their scholarly works receive, and Harvard Law School professors Richard H. Fallon, Cass R. Sunstein ’75, and John F. Manning ’82 claimed the top three spots...Fallon described the challenge law professors face in trying to bridge two groups—“practicing lawyers and judges” and “more theoretically minded professors and students”—whose interests often diverge. “I would like to think that we at Harvard Law School do a good job at keeping a foot successfully in both camps.”...Manning, who wrote in an email that he believes that judicial citations are not the most meaningful measure of scholarly impact, thinks that women should already rank higher. “By any reasonable measure of quality of legal scholarship (which citation counts capture only very imperfectly), there are certainly women who belong in the top 25,” he wrote.

In August, this often-silly presidential campaign became a medical theatre of the absurd. After Donald Trump campaign surrogates raised questions about Hillary Clinton’s physical stamina—and circulated photos of her propped up by pillows—she demonstrated her strength … by opening a pickle jar on late-night TV. Meanwhile, wild speculation about Trump’s mental fitness led New York Times columnist Maureen Dowd to imagine up an entire scenario where Trump is institutionalized post-election...Ethicists point out that a mandatory medical review might not be feasible. While some important jobs—think airline pilot—do require medical approval, it would be harder to make the case for a politician and would raise complicated legal questions. So “let’s assume it is not a government panel,” muses Harvard ethicist I. Glenn Cohen, “but rather something that candidates voluntarily undertake.” He points to how the American Bar Association, for instance, has historically rated the qualifications of Supreme Court nominees. Many lawmakers say they consider the ABA’s assessment as one factor among many when vetting a judicial appointee. Yes, it’s possible for candidates to buck a voluntary expectation—Trump’s doing it right now with his tax returns—but it reframes the focus, Cohen argues.

Jameyanne Fuller [`19] is used to living life with no limits. Blind since birth, Jameyanne has scaled an Andean mountain, earned a perfect 800 on her math SATs (despite her elementary school claiming blind children couldn't learn math), used Braille to graduate Kenyon College with the highest of academic honors and was awarded a prestigious Fulbright scholarship to teach in Italy. Oh, and she's also written two novels.

Facebook set a new land-speed record for situational irony this week, as it fired the people who kept up its “Trending Topics” feature and replaced them with an algorithm on Friday, only to find the algorithm promoting completely fake news on Sunday. Rarely in recent tech history has a downsizing decision come back to bite the company so publicly and so quickly...Jonathan Zittrain, a professor of law and computer science at Harvard University, likened Facebook’s decision to use impersonal aglorithms to “confining things to the roulette wheel.” “Even the casino isn’t supposed to know what number is going to win when it spins. And so, if there’s some issue, at least it isn’t intentional manipulation by Facebook,” he told me. Google claims the same innocence with its search results, he said.