Media Mentions

An op-ed by Cass Sunstein. A good nudge is like a GPS device: A small, low-cost intervention that tells you how to get where you want to go -- and if you don’t like what it says, you're free to ignore it. But when, exactly, will people do that? A new study sheds important light on that question, by showing the clear limits of nudging. Improbably, this research is also good news: It shows that when people feel strongly, it’s not easy to influence them to make choices that they won’t like. The focus of this new research, as with much recent work on behavioral science, is on what people eat.

An op-ed by Noah Feldman. Finally, someone's standing up for the rich. The Supreme Court struck a blow for wealthy criminal defendants today, holding that before trial the government can freeze only those assets that are demonstrably tainted, not all assets up to the value of the wrongdoing alleged. It's a distinction that doesn't matter to very many people, but matters a lot to a few. One result will be to make it a bit easier for rich defendants to use their (unfrozen) money to pay for lawyers of their choice, instead of getting by with an appointed public defender. But the court’s cautious plurality opinion, the result of a very strange voting lineup, relied on some seriously doubtful economic logic to get to the desired outcome.

Patient advocates say too many health plans are requiring patients with HIV to spend large sums on their medications, potentially raising concerns about discrimination. In a report provided this month to the Star Tribune, researchers from Harvard Law School and the Minnesota AIDS Project highlight health plan options on the state’s MNsure exchange that feature high degrees of “cost-sharing” for medications used by people with HIV. The report, which also looked at hepatitis C medications, is one of the latest to examine how health insurers in different states are covering HIV treatments on new government-run insurance exchanges. “I think they know the impact that putting high cost-sharing on these medications has to deter people,” said Carmel Shachar, an attorney at Harvard’s Center for Health Law and Policy Innovation. “We do think the pattern of tiering is suggestive of discrimination.”

The Department of Veterans Affairs is wrongfully denying services to roughly 125,000 post-9/11 veterans with other than honorable discharges, according to a joint study released Wednesday by two veterans advocacy groups and Harvard Law School...“Veterans who have served since 9/11 are being excluded from the VA at a higher rate than any other generation of veterans,” said Dana Montalto, the study’s author and a Liman Fellow with the Harvard Law School’s Veterans Legal Clinic. “They’re being denied very basic services.”

An op-ed by Noah Feldman. It’s happening: The Supreme Court is getting desperate. With a 4-4 tie looming over whether religious organizations have to file a form with the government requesting an exemption from the mandatory contraceptive care provisions of the Affordable Care Act, the justices took an extreme step. They issued an order that basically told the federal government and the religious entities to reach a compromise -- and described what the compromise would look like. Federal district court judges will sometimes tell the parties that they’d better compromise, or else they might not like the results that will follow. The Supreme Court essentially never does, both because it lacks leverage and because it gets involved in cases with the intention to make new law, not to resolve particular disputes. But we’re in new territory here. The Supreme Court is trying to figure out how to do its job with eight justices -- a situation that might persist not just through this Supreme Court term, but through the next one as well.

An op-ed by Noah Feldman. This was supposed to be the year when the Supreme Court would deal a major blow to labor unions, reversing a 1977 precedent that says nonunion members can be required to make payments in lieu of dues to the union. In 2014, the court came close to doing exactly that in a 5-to-4 opinion that telegraphed its intention to do so in the near future. But the death of Justice Antonin Scalia was a game-changer, taking away the fifth vote that would’ve been necessary to repudiate the precedent. Today the court issued a one-sentence opinion that proved both that there were briefly five votes to overturn the precedent, and that Scalia’s death has saved unions from constitutional disaster. The court said simply that it was divided 4-4, and that the lower court’s opinion based on the precedent would therefore be upheld.

Drugs that failed to make it to the market in the U.S. and elsewhere are finding new life in China...But the new trend also raises the question of whether China has become a dumping ground for inferior drugs. I. Glenn Cohen, a Harvard Law School professor who studies medical ethics, said that because of differences in regulatory standards it isn’t unusual or unlawful for a company to get a drug approved in one jurisdiction and not another. For one thing, in China a drug doesn’t have to prove superiority over existing drugs—a major hurdle in the U.S., where 90% of candidates get dropped in the clinical-trial process.

...Few would argue that the rankings have helped shape a world in which students are seen as consumers, and colleges and universities as commodities. The rankings are a key reason the higher-education landscape today operates like a marketplace in which institutions compete to convince the best students to buy their product...And as for the movement away from admissions tests? Fewer and fewer colleges may be requiring applicants to submit scores, but that doesn’t mean their presence is waning. According to a recent Education Week analysis, high-school testing is tilting heavily toward those very exams: Twenty-one states now require students to take the SAT or ACT, and a dozen use one of the exams as part of their official, federally mandated accountability reports on high-school students. As the Harvard Law professor Lani Guinier, a staunch critic of elite-college admissions, wrote in her book, The Tyranny of Meritocracy: “This is testocracy in action.”

How can you defend a foreigner who came to the United States with the likely intent of causing harm to Americans? For attorney James B. Donovan, a 1940 graduate of Harvard Law School, the real question at the height of the Cold War was: How can you not?...In 1962, with the backing of President John F. Kennedy ’40, Donovan traveled to East Berlin to negotiate a swap: Abel for American spy plane pilot Francis Gary Powers, imprisoned in the USSR. At Harvard Law School in the late 1930s, Donovan lived in Walter Hastings Hall, served as chair of the Law School yearbook, and studied under later Supreme Court Justice Felix Frankfurter. As an alumnus, he donated his legal fee from the Abel case to Harvard and two other universities. On Wednesday, the Law School’s Program on Negotiation will present a screening of Steven Spielberg’s “Bridge of Spies,” a film about the Abel-Powers negotiations in which Tom Hanks plays Donovan. Afterward, Dean Martha Minow will discuss the film with Professor Michael Wheeler of the Business School; Donovan’s granddaughter Beth Amorosi, president of AMO Communications LLC; and Donovan’s grandson John Amorosi, partner in the law firm of Davis Polk & Wardwell.

An op-ed by Laurence Tribe. In nearly five decades teaching law, I’ve been lucky enough to know many Supreme Court justices. I’ve counted them among my friends, colleagues, students, and research assistants. I’ve seen that success on the court requires diverse traits: deep knowledge of the law, humility about the judicial role, an understanding of and concern for law’s real-world impact, and the ability to build coalitions on the bench. Having known Chief Judge Merrick Garland for over 40 years, I’m confident he possesses all these qualities and more. He will be among our nation’s finest justices, and I strongly encourage the Senate to end its obstructionism and confirm him to the court.

An article by Laurence Tribe. Suppose that Trump continues to rack up delegates in the Republican primaries but resistance to his candidacy is growing in the party’s barely surviving establishment. At the Republican convention—to be held 18-21st July in Cleveland, Ohio, to choose that party’s presidential nominee—not all state delegates are obliged by the rules to vote for the candidate who won their state’s primary. Moreover, the selection of those delegates is also an internal party matter—and many in the Republican Party are wary of Trump. Thus, Trump could win the largest number of votes in the Republican primary process, but still not obtain the party’s nomination to run for President. Political commentators are speculating about a contested Republican convention between Trump and a Republican establishment favourite like John Kasich, the Governor of Ohio, or even Senator Ted Cruz of Texas, a more doctrinaire conservative than the relatively unpredictable Trump. All sorts of procedural gambits could be deployed at the convention in a pitched battle to determine the party’s nominee.

An op-ed by Noah Feldman. When was the last time you actually read the terms of service before clicking “I agree” on a website? Unless your answer is “never,” I don’t believe you -- and I don’t think it’s your fault, either. But the U.S. Court of Appeals for the 7th Circuit has a subtler view than mine. On March 25, it held that you’re not bound by a contract if it wasn’t made clear that you were supposed to read it. But if it is made clear, the contract binds you, whether you read it or not.

An op-ed by Noah Feldman. The Constitution grants people accused of crimes the right to a speedy and public trial. Does that include a right to speedy sentencing after conviction? The Supreme Court takes up that question on Monday in Betterman v. Montana, the case of a defendant who had to wait 14 months in a county jail to be sentenced after pleading guilty. Then the court refused to include that period as time served. What’s most remarkable about the case is that not only Montana but also the federal government maintain that the speedy-trial right doesn’t include sentencing at all. The court has never said so before – although to be fair, it also hasn’t said that sentencing is part of the trial either.

Discussions about how to reduce greenhouse-gas emissions frequently center on clean energy, more efficient transportation and sustainable agriculture. But research suggests that if we really want to pay attention to our carbon footprints, we should also be focusing on another, less-talked-about issue: the amount of food we waste each day...“The first step is really figuring out what is the right amount that we need to produce,” said Emily Broad Leib, director of the Harvard Food Law and Policy Clinic and an assistant clinical professor of law. Much of the food that goes to waste could be used by people who aren’t getting enough to eat. But it’s also likely that we could stand to reduce our overall production as well, cutting some of those emissions entirely. “I do think there’s a sweet spot, and we’re not hitting it right now,” Broad Leib said.

The intense political wrangling over Merrick Garland's nomination to the Supreme Court has overshadowed the traditional purpose of Senate confirmation — a serious look at the career and life of the contender...But who is Merrick Garland, and how did he come to be the kind of judge selected to navigate this unprecedented confirmation fight? Harvard Law Professor Laurence Tribe has unique experience to answer the question. He taught both Garland and Obama when they were students at the prestigious school. He continues to advise the White House on legal issues. Tribe discussed Garland's nomination with MSNBC.

Loretta A. Preska, chief judge of the U.S. District Court of Southern New York, said she was concerned about reduced tolerance of free speech on university campuses in a lecture at Harvard Law School on Monday...“I think institutionally, Harvard does a really good job of maintaining free speech,” Hussein E. Elbakri [`18], a student at the Law School, said. “But I think the social pressure not to say certain things, especially in discussions that affect race and gender, has been pretty prevalent in my classes.” Trenton J. Van Oss [`17], a Law School student who coordinated the event, said he was moved by the discussion. Van Oss is a member of the Federalist Society, a group of conservative, moderate, and libertarian Law School students, which sponsored the lecture. “I think one of the things she said that I really appreciated, was the idea that free speech is something that we have to fight for, every generation,” Van Oss said.” We need to work to create a culture of free speech where all views are appreciated.”

Senator Ted Cruz, a candidate for the Republican presidential nomination, has proposed surveilling Muslim neighborhoods. His chief rival, Donald J. Trump, says he would deport millions of undocumented immigrants and allow the use of torture. The campaign has also produced calls for carpet bombing in Syria and steps to rein in the press at home. But you have to wonder: If elected, could a new president intent on pushing or exceeding the boundaries of the Constitution or the law actually follow through?...Noah Feldman, a Harvard law professor, said the greatest bulwark against presidential overreach would be the huge number of people needed to carry out the work. Political appointees and career civil servants could refuse directives. Congress could refuse to pass and finance policies. The Justice Department’s Office of Legal Counsel could declare initiatives unconstitutional. But, Mr. Feldman added, another crisis — say, something like the Sept. 11 attacks — could change the dynamic. Officials might back down. A president could invoke President Lincoln’s suspension, over the objection of the Supreme Court chief justice, of habeas corpus, the foundational right to protest one’s detention. “Could a president unilaterally suspend habeas corpus? Well, all you can say is: It happened once,” Mr. Feldman said.

Fornication. Sodomy. Adultery. Not so long ago, the U.S. criminalized pretty much all sex outside of marriage. As these laws have been struck down by courts or allowed to settle into obsolescence, it would seem that sexual liberty has been vindicated as an important American value. But while the courts have been busy ushering the government out of our bedrooms, it's been creeping right back in under new pretenses. Gone is the language of morals, tradition, and orderr—the state now intervenes in our sex lives bearing the mantles of safety, exploitation, and sex discrimination. "We are living in a new sex bureaucracy," warn Harvard Law School professors Jacob Gersen and Jeannie Suk in an upcoming paper for the California Law Review. Contra court decisions such as Lawrence v. Texas—which decriminalized sodomy in Georgia and affirmed a constitutional right to sexual privacy—"the space of sex" is still "thoroughly regulated" in America, they write. And "the bureaucracy dedicated to that regulation of sex is growing. It operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."

An op-ed by Susan Crawford. I’m looking forward to Tesla’s release of its mass-market Model 3 electric car next week. Owners love their beautiful Teslas, and this one will reportedly cost $35,000 before federal and state tax credits, meaning the net price could be less than the cost of an average American car. But my pulse rate is higher not because of the car itself, or even its pricetag. I’m excited because of what’s inside: a battery that can cost-effectively store enough energy to allow for hundreds of miles of travel. And an operating system that needs constant upgrades.

A new Senate bill tries to make it just a little bit harder for activist hedge funds to exploit healthy companies rather than invest in their future. Sen. Tammy Baldwin (D-Wis.) and Jeff Merkley (D-Ore.) introduced the Brokaw Act on Thursday, which would strengthen disclosure requirements for activist hedge funds that buy parts of companies. Activist hedge funds, unlike other hedge funds, become deeply involved in the companies in which they buy a stake, steering them in a direction that most benefits the fund...Defenders of the bulk of activist interventions, like Harvard Law School’s Mark Roe, argue that its downsides are exaggerated, and that the dearth of corporate investment represents a prudent response to a “weak economy.”

...[Merrick] Garland, now chief judge of the federal appeals court in Washington and President Obama’s nominee to the Supreme Court, has deftly navigated the capital’s high-powered legal circles for decades...Today, he has a talent for letting others talk about themselves. Whether in a meeting or at a party, he leans slightly toward whoever is speaking, head nodding. “He’s absorbing what he hears and integrating it,” said Martha Minow, the dean at Harvard Law School.