Media Mentions

An op-ed by Noah Feldman. In what has become a U.S. Supreme Court ritual in recent years, the justices Monday smacked down a patent-law precedent created by the U.S. Court of Appeals for the Federal Circuit, the unusual appellate court that specializes in patent law. The high court’s decision makes it easier for patent holders to get higher damages against willful patent infringers.

An op-ed by Noah Feldman. Last week the Supreme Court insulted Puerto Rico by saying its people aren’t sovereign. This week the court added injury to the insult, denying Puerto Rico access to federal bankruptcy laws that would have created a path to recovery for its struggling utilities.

An op-ed by Noah Feldman. Gun-rights advocates have been on a roll, as lower courts building on Supreme Court jurisprudence have subjected gun control laws to heightened scrutiny. But last week, the trend stalled. One appeals court upheld laws against carrying concealed guns in two California counties. Another stayed the judgment of a lower court that had struck down Washington, D.C.’s concealed-carry restrictions, signaling it would probably reach a different result. The changed momentum suggests that localities may not lose the ability to regulate concealed handguns -- at least for now. But last week, the trend stalled. One appeals court upheld laws against carrying concealed guns in two California counties. Another stayed the judgment of a lower court that had struck down Washington, D.C.’s concealed-carry restrictions, signaling it would probably reach a different result. The changed momentum suggests that localities may not lose the ability to regulate concealed handguns -- at least for now.

Early in the 1980's, there was a lifetime ban or deferral for any man who had everhad sex with another man. Even once. But in May, the FDA released new recommendations that would allow gay men to donate blood with a big 'if'- if those men had been celibate for a year.  Critics charge these restrictions have no scientific bearing and are discriminatory. Harvard Law Professor Glenn Cohen (@CohenProf) joined Adam on Tuesday night to discuss these restrictions.

Brian Miller, a shareholder at Rogers Joseph O’Donnell and writer for Bloomberg BNA, and Noah Feldman, a Harvard Law School professor and Bloomberg View columnist, discuss a partial Supreme Court Victory for Universal Health Services and other government contractors, in which the Court limited the reach of a whistle blower law that was designed to prevent fraud under the U.S. False Claims Act. They speak with Bloomberg Law host June Grasso on Bloomberg Radio’s "Bloomberg Law."

If there's one thing Republicans and Democrats can agree on when it comes to guns, it's their proclaimed respect for the Second Amendment. Ah, but then there's the trickier matter of what they think those 27 words mean. Lawyers, scholars, judges, politicians and ordinary Americans have been puzzling over that question for much of two centuries...Harvard Law scholar Laurence Tribe says it's time for partisans to stop oversimplifying. Supporters of strong gun regulation act as if Supreme Court rulings affirming the right to bear arms were "just aberrations," he says, and opponents act like any regulation is a slippery slope to the day when "Big Brother will be breaking down our doors and taking away all our guns."

An op-ed by Bonnie Docherty: New technology could lead humans to relinquish control over decisions to use lethal force. As artificial intelligence advances, the possibility that machines could independently select and fire on targets is fast approaching. Fully autonomous weapons, also known as “killer robots,” are quickly moving from the realm of science fiction toward reality.

Early in the spring, first-year Harvard Law School (HLS) students Chloe Goodwin, Nora Ellingsen, and Josh Looney jumped at the opportunity to volunteer with a national organization to help felons get a second shot at life. Working with Clemency Project 2014, a coalition that supports petitions by nonviolent drug offenders for executive clemency, the students wound up enlightened and inspired...Anna Kastner, a legal fellow with the HLS Criminal Justice Policy Program, which coordinated the HLS Clemency Project, said students completed their work last month. “Our goal was to put a very concentrated effort on this work this semester so that the petitions would be reviewed by Obama before he leaves office,” said Kastner.

More than two dozen companies — including Airbnb, Amazon, American Airlines, Dow Chemical and Pepsico — agreed Tuesday to undertake a yearly company-wide gender pay analysis as part of the summit. Tina Tchen, executive director for the White House Council on Women and Girls, said in an interview Monday that while “there’s been a continued sense of frustration at not getting a national paycheck fairness act,” the 28 firms’ adoption of the White House’s equal pay pledge shows that companies are willing to take steps ranging from reviewing their hiring and promotion processes to identifying other ways of ensuring that women and men in similar occupations are paid at comparable rates...Other commitments include a tool kit that Harvard Law School’s Negotiation and Mediation Clinical Program will develop for community college students across the country, so women can become better prepared to negotiate for higher salaries when they enter the workforce, and a $15 million pledge by the nonprofit group CARE to help educate 3 million adolescent girls in six countries. Oracle pledged to spend $3 million worldwide to help girls learn in the fields of science, technology, engineering and math.

Congressman Jeb Hensarling, a Republican of Texas, delivered a straightforward message in a speech to the Economic Club of New York, on Tuesday: the Dodd-Frank Act is broken and can’t be fixed. The occasion for his speech was the unveiling of his new financial-reform plan, which would scrap Dodd-Frank entirely and replace it with a new regulatory regime. Its broad thrust would be to reduce regulation and give financial institutions more freedom...From a “small d”-democratic point of view, these changes might sound harmless, even reasonable. Who could be against cost-benefit tests, for example? But cost-benefit requirements are hard to apply coherently to financial regulation, as the Harvard law professor John Coates IV has argued—because it’s rarely possible to get “precise, reliable, quantified” measures there. How, after all, would you count the economic benefits that arise from reducing the risk of a systemic financial crisis by a few per cent, or from limiting the types of mortgages that consumers can take out? And since the costs of regulation are often more easily measured, the result of imposing a cost-benefit test is to make regulations harder to implement.

An op-ed by Hal Scott. The Federal Reserve and the Federal Deposit Insurance Corp. recently determined that five of America’s largest banks do not have credible plans to go through bankruptcy without relying on extraordinary government support. If these five firms— J.P. Morgan Chase, Bank of America, Wells Fargo, Bank of New York Mellon and State Street—can’t develop “living wills” that satisfy regulators, then the Dodd-Frank Act authorizes the government to break them up as soon as 2018. What led to their failing grades on living wills? It can’t be lack of effort: Every year, American banks can each spend more than $100 million and one million hours preparing them, according to the Government Accountability Office (GAO). The real reason for failure is that the banking regulators have not disclosed enough details about how they assess the credibility of a living will. This opaqueness casts serious doubt on the legality of the determinations—and the threat to break up the banks.

Cass R. Sunstein is a professor at Harvard Law School, a former official in the Obama administration, an expert in behavioral science and constitutional jurisprudence, and the author of many books, including the best-selling (and somewhat controversial) “Nudge.” He is, in other words, a formidably accomplished intellectual, an authority on matters that lie beyond the ken of most ordinary citizens. But he is also a regular guy: a son, a father and a big fan of the “Star Wars” movies. His latest book, “The World According to Star Wars,” a kind of lay sermon on a sacred pop-cultural text, tries to fuse the strands of his identity, to bring his intelligence and expertise to bear on a phenomenon that is widely known and easily understood and to use that phenomenon to illuminate more arcane matters.

An op-ed by Cass Sunstein. Bernie Sanders won't be the Democratic presidential nominee, yet so far he refuses to concede to Hillary Clinton, pledging to "continue to fight for every vote and every delegate we can get.” This is more than just stubbornness: Even if he bows out soon, Sanders and his supporters appear to believe more strongly than ever that the system is rigged against him and that Clinton is a captive of the banks -- and that Democratic voters have been rising up in support of his “political revolution, ” regardless of the actual vote count. What happened? The Sanders campaign has become a classic example of the phenomenon of “group polarization,” arguably more so than any campaign in recent memory -- even Donald Trump's, which has greatly benefited from the same phenomenon.

An op-ed by Cass Sunstein. There is not much evidence that Donald Trump respects the independence of the federal judiciary, or that he appreciates constitutional limits on the power of the president. But even a broken clock is right twice a day. On one legal issue, Trump raises a legitimate question: Have courts gone too far in protecting libelous speech? Here’s what Trump said: I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money...It’s predictable that journalists would hate that statement, which is not exactly a model of clarity or statesmanship. But Trump is onto something.

An op-ed by Noah Feldman. A judge shouldn't be allowed to vote in a case involving a capital sentence when he was formerly the prosecutor who sought the death penalty in the same case. That sounds obvious, and the Supreme Court said so on Thursday. But three justices dissented, suggesting that the answer might not have been obvious after all. The dissents show how deeply divided the court really is over the death penalty – and how far the conservative justices are prepared to go in its defense.

An op-ed by Noah Feldman. In a decision that begs to be characterized as “First Amendment gone wild,” an appeals court has all but struck down a 1988 law that requires pornographers to maintain records showing that actors aren’t underage. For good measure, the court said it violated the Fourth Amendment to require the documents to be available anytime for government inspection. These twin holdings are both plausible applications of recent Supreme Court doctrine. But the results are so absurd that they call out for review by the highest court itself.

An op-ed by Noah Feldman. Donald Trump’s claim that a Mexican-American judge would be biased against him has put the topic of judicial ethnicity front and center. So it’s worth pausing to consider the most important -- and controversial -- discussion of the significance of a judge’s ethnic or religious background in the history of Supreme Court opinions. That would be this declaration by Justice Felix Frankfurter in 1943...Before you get excited about using Frankfurter’s oratory as a rebuttal to Trump, consider this: He prefaced the statement with a profession of his Jewishness that his colleagues tried to suppress. And he did all this in a dissent that argued that Jehovah’s Witnesses shouldn’t be exempt from pledging allegiance to the flag.

Ninety-one percent of Americans toss their food after the date on the labels have passed, but in many cases, they may actually be wasting perfectly safe food. There are three types of dates used on food labels: "sell by," "best if used by," and "use by." But all three have nothing to do with food safety. Rather, they signal how long the manufacturer thinks the food will taste best. "So the manufacturer will do taste tests with consumers and say, 'this is when everyone still thought my product tasted good,' and they're not about safety, but many people throw food away," said Emily Broad Leib, director of Harvard's Food Law and Policy Clinic..."Food safety means it was contaminated, you could get E.coli or salmonella, something like that.... We want to eat food that tastes good, that's good quality, but it's much more subjective," Leib said. "You're not going to get sick if you eat something. It's just about what you think tastes good."

John Tortelli recently received some good news: The virus that has lurked in his body for nearly four decades, threatening to destroy his liver, can no longer be detected in his blood. Tortelli, a 64-year-old retiree who lives in Arlington, contracted hepatitis C as a young man, from a blood transfusion during heart surgery. Over the years, the virus has led to fatigue, joint aches, mental fogginess — and continual worry that the infection might progress to cirrhosis, as happens to 5 to 20 percent of infected people...The advocates’ position got a big boost last month when a federal District Court judge in Seattle ordered Medicaid in Washington state to start covering the drugs regardless of the condition of the patient’s liver. A few days later, Florida — also facing a suit — adopted a similar policy change....Robert Greenwald, the Harvard Law School professor who sued Washington state, said he sent an e-mail to MassHealth director Daniel Tsai on Thursday, advising that Medicaid rules clearly require coverage. Asked whether he planned to sue Massachusetts, Greenwald said, “I’m not there yet. I have been assured they are working as quickly as they can.” But Greenwald, who directs Harvard Law School’s Center for Health Law and Policy Innovation, said if the state’s process “does not result in access mandated under law,” he will reconsider taking legal action.

A Supreme Court term that started off as lackluster for environmental law enthusiasts has turned out to be one for the history books. But unlike some other years when a series of sweeping rulings set new precedent in environmental law, the events that triggered the most shock waves and headlines this term weren't opinions. Rather, they were the death of one of the high court's most dominant voices on environmental and administrative law, and an unprecedented move to block a landmark climate regulation while legal challenges were still pending in a lower court..."The fact is ... there were two stunning things that happened within Tuesday to Saturday," said environmental attorney and Harvard Law School professor Richard Lazarus. "Each one was a huge surprise." Speaking to an audience of environmental lawyers the week before those events, Lazarus noted presciently, "The court tends to start out looking like it's going to be sleepy, and by the end of the term they've got a lot of big hot-button issues." Overall, Lazarus said in an interview, the term has been "unsettling because of the uncertainty it means about future litigation in the court."

An op-ed by Glenn Cohen and Eli Y. Adashi. On February 3, 2016, the Institute of Medicine (IOM) released its Ethical and Social Policy Considerations of Novel Techniques for Prevention of Maternal Transmission of Mitochondrial DNA Diseases report...Expansive in its purview and thorough in its scrutiny, the report concludes that it is “ethically permissible” to embark on clinical trials involving human beings, subject to rigorous safety and efficacy imperatives. The report further recommends that initial clinical trials be limited to male embryos whose mitochondria cannot be transmitted to their progeny. In so doing, the IOM is seeking to preclude transmission of unintended outcomes to the progeny. In an unforeseen turn of events, the release of the IOM report was preceded by the enactment of a federal statute that prohibits the FDA from considering research applications for the conduct of this therapy. This Viewpoint seeks to contextualize the IOM report by describing the drive to bring mitochondrial replacement therapy to the clinic and the statutory constraints blocking its adoption.