Media Mentions

...Climate change, Mr. Obama often says, is the greatest long-term threat facing the world, as well as a danger already manifesting itself as droughts, storms, heat waves and flooding. More than health care, more than righting a sinking economic ship, more than the historic first of an African-American president, he believes that his efforts to slow the warming of the planet will be the most consequential legacy of his presidency...Another critic, Laurence H. Tribe, likened the rules to “burning the Constitution” — a charge that might have stung, since Mr. Tribe, a liberal constitutional scholar, was a mentor to Mr. Obama at Harvard Law School. Mr. Obama dismissed the criticism as the voice of Mr. Tribe’s client, Peabody Energy, the nation’s largest coal company, which filed for bankruptcy protection in April. “You know, I love Larry,” he said, but “when it comes to energy issues, Larry has a history of representing fossil fuel industries in big litigation cases.”

An op-ed by Cass Sunstein. Last month, the University of Chicago appeared to pick sides in the latest iteration of America's culture wars. But it was really announcing just how silly those culture wars are -- and how to get past them. The school informed incoming students that its “commitment to academic freedom means that we do not support so-called 'trigger warnings,' we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual 'safe spaces' where individuals can retreat from ideas and perspectives at odds with their own." Conservatives saw the letter as a political intervention, a courageous stand against “political correctness” -- as if the University of Chicago shared the concern of Donald Trump, Ben Carson, and others about left-wing orthodoxy on campus, in the media and political debates. But the letter’s real lesson lies elsewhere. It’s a political intervention that doesn't involve contemporary political issues at all.

An op-ed by Noah Feldman. The defamation lawsuit that Roger Ailes’s lawyer is threatening against New York magazine would seem to have no chance of legal success. So why has the former chairman of Fox News bothered to hire the lawyer who brought down Gawker on behalf of Hulk Hogan? The answer is that the threat puts the magazine on the defensive -- and that's a problem for free speech. The First Amendment has been interpreted to protect even defamatory speech against public figures. But as the Hogan case shows, not every court applies the constitutional standard correctly. In that environment, even legally empty threats have a chilling effect.

This morning lawyers at the Center for Health Law & Policy Innovation of Harvard Law School filed a complaint with the U.S. Department of Human Services alleging that seven insurers in eight states, including Humana, Cigna and Anthem, are discriminating against people with HIV/AIDS by “refusing to cover key medications and requiring high cost sharing.”...Center attorney Kevin Costello said under the ACA, it is illegal to target the sick. "What the Affordable Care Act says is you are not allowed as an insurer to discourage enrollment for high-cost populations.”

After a year that saw Harvard Law School embroiled in debates over race and diversity, Law School Dean Martha L. Minow has launched a new lecture series entitled “Diversity and U.S. Legal History.” The 10-week series, which kicked off Wednesday, is a joint effort on the part of the Dean’s office and Law School professor Mark Tushnet’s reading group, which bears the same title as the series....The lecturers—who include Law School professors Randall L. Kennedy, Tomiko Brown-Nagin, Annette Gordon-Reed, Michael Klarman, and Kenneth W. Mack, Divinity School professor Diana L. Eck—will discuss topics ranging from race in American history, to challenges facing Latinos, the originalist case for reparations, and religious pluralism...Law School professor Joseph William Singer delivered the first talk—“567 Nations: The History of Federal Indian Law”—to a crowded room Wednesday in the school’s student center. Singer recounted the development of colonial and United States law regarding Native Americans from the 18th century to the present, arguing that certain judicial rulings or government actions were unconstitutional.

The union of the 750 food service workers at Harvard University held a briefing and rally on Sept. 7 to announce their intent to hold a strike vote. The union, UNITE HERE Local 26, has been in negotiations with the university administration since late May, and workers say that little progress has been made on their two major issues...Collin Poirot, a second year student at Harvard Law School, said that it is especially important for students to show up in support of staff. “We’re here to show the university administration that students and workers are united, and that we will always have the backs of Harvard workers, just as they have always had ours.”

The effectiveness of mandatory minimums is up for debate. NPR's Scott Simon talks to retired federal judge and Harvard Law professor Nancy Gertner about the topic.

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.