Media Mentions

An op-ed by Robert C. Pozen and Mark J. Roe. The clamor against so-called corporate short-term thinking has been steadily rising, with a recent focus on eliminating the quarterly earnings report that public firms issue. Quarterly reports are said to push management to forgo attractive long-term projects to meet the expectations of investors and traders who want smooth, rising earnings from quarter to quarter...But while quarterly reporting has drawbacks, the costs of going to semiannual reporting clearly outweigh any claimed benefits.

For some odd reason, data privacy maven Bruce Schneier is an optimist. It’s odd because, according to Schneier, there’s practically no such thing as data privacy. Just about everything we do these days is under some form of electronic surveillance, with governments and corporations eager to record and analyze our every action. But when Schneier holds forth on Friday at Harvard University, as part of the ongoing HUBweek festivities, he’ll reassure his listeners that the cause is not lost, that our online privacy will someday be ensured. Just give it a decade or two. “It is possible to write laws to prohibit behavior we find immoral,” Schneier said. “We do it all the time.” So it’s just a matter of persuading businesses, governments, and voters that the current level of comprehensive digital surveillance crosses an ethical line. Technology isn’t the issue. “It will take an act of moral will,” he said.

An op-ed by Cass Sunstein. After yet another gun-related tragedy, the U.S. is in the midst of a flurry of new efforts to control people’s access to firearms. As before, those efforts are running into serious trouble. The major problem is simple: The Second Amendment has come to be seen as a constitutional barrier, and perhaps even more, a political one. Somewhat awkwardly, presidential candidate Ben Carson captured a widespread view: “I never saw a body with bullet holes that was more devastating than taking the right to arm ourselves away.” No one should take away people’s rights. But with respect to “the right to arm ourselves,” we have lost sight of our own history.

An op-ed by Noah Feldman. With the long black robes, red velvet curtain and secret conference room, the U.S. Supreme Court can seem like a pretty weird place. But the court is never weirder than when the death penalty is being discussed, as it was in Wednesday's oral arguments. On the surface, the justices must decide whether co-defendants can have their sentences determined in a single hearing, and whether a jury must be told that factors mitigating against a capital sentence don't need to be proved beyond reasonable doubt. But underneath these technical legal issues, something more profound is at stake: the immediate, personal involvement of the nine justices in the intentional killing of human beings.

Mayor Martin J. Walsh’s internal probe of a potential Teamsters-City Hall nexus is likely to zero in on whether any city employees played any criminal roles or broke ethical rules, according to a former federal judge. “They want to get the bottom of whether there was anything criminal” done by city workers, former federal judge Nancy Gertner said. She added: “And if it’s not criminal, it still may not be good government.”

Hillary Clinton seemed to be barely holding back tears at a town hall in New Hampshire on Monday. Speaking in the aftermath of another tragic mass shooting, this time at an Oregon community college, the Democratic presidential candidate pitched her gun control proposals. In the middle of her remarks, she made a big claim: She said that gun-makers and sellers are "the only business in America that is totally free of liability for their behavior."...However, Clinton "is not totally off base," said John Goldberg, a professor at Harvard Law School and specialist in tort law. He said Congress was particularly "aggressive" in granting the gun industry this legal shield. "Congress has rarely acted to bar the adoption by courts of particular theories of liability against a particular class of potential defendants, especially when that form of liability has not yet been recognized by the courts," he said.

An op-ed by Noah Feldman. It’s not often that “The Wire” comes to the U.S. Supreme Court. But Tuesday, in Ocasio v. U.S., a scenario ripped straight from the greatest television show ever made will be considered in the highest court in the land. It involves (of course) the Baltimore Police Department, corruption and wiretapping. And it raises an arcane-sounding legal question: Can you be convicted of conspiracy to commit extortion if your alleged co-conspirator is none other than the victim of your scheme?

The Supreme Court announced on Monday that it would disclose after-the-fact changes to its opinions, a common practice that had garnered little attention until a law professor at Harvard wrote about it last year...“This is a welcome step by the court to correct a problem that has persisted for more than a century, and which was exacerbated in recent years by modern technology,” Professor [Richard] Lazarus said. “The court deserves praise for its willingness to make transparent its corrections of past mistakes in its slip opinions.” But slip opinions are early versions of the court’s rulings. It is not clear, Professor Lazarus said, whether the court would take additional steps later in the editing process, which can last five years before authoritative hardcover books are produced, to make all changes public.

The U.S. Supreme Court announced Monday a series of policy changes that respond to public complaints about secret changes to the justices’ decisions, hiring "line-standers" for high-profile oral arguments and "link rot" in the court’s rulings...The move appears to be a direct response to a 2014 Harvard Law review article on the "nonfinality" of court opinions. In the article, Harvard Law School professor Richard Lazarus revealed that changes, some of them substantial, were being made to already issued opinions without notice to the public. Lazarus is a longtime friend of Chief Justice John Roberts Jr. Lazarus on Monday called the new policy “certainly a very welcome step by the justices to correct a practice that had persisted for far too long...But Lazarus cautioned that the court's new policy "stops short of making transparent the changes made between the slip opinion and the final bound volume of the U.S. Reports. To address that problem, the court needs to make publicly available the changed pages that are used in publishing the final bound version of the court’s opinions."...The court also announced new procedures to confront "link rot," the phenomenon where web-based links that are included in court opinions disappear or become broken, making it difficult for scholars and others to recover materials that were pertinent to court decisions. A 2013 study by Harvard scholars including presidential candidate Lawrence Lessig found that 50 percent of links in Supreme Court opinions do not link to the originally cited information.

AstraZeneca, one of Britain’s largest businesses, is using a multimillion-pound tax avoidance scheme in the Netherlands, set up months after the UK relaxed its tax laws for multinationals in 2013...Stephen Shay, a senior law lecturer at Harvard Law School who has held senior tax roles in the US Treasury and who gave expert testimony in 2013 on Apple’s tax avoidance structures in a Senate investigation, said that it was “hard to say” how the companies in the Dutch structure “have a real commercial purpose other than to achieve the tax outcome”.

An op-ed by Cass Sunstein. This week’s decision by the Environmental Protection Agency, imposing a new limit on ground-level ozone at 70 parts per billion, was eminently reasonable -- an impressive vindication of both law and science. The loud objections, coming from both the business community and environmental groups, are unconvincing.

An op-ed by Noah Feldman. The new Supreme Court term will include high-level discussions of affirmative action, free association and religious liberty. But the first Monday in October is starting with a suit about a Eurail pass. Specifically, the court will consider whether selling a Eurail pass in the U.S. through a subagent makes the Austrian rail service subject to liability in a U.S. court for an accident in which an American plaintiff lost her legs outside Innsbruck. And therein lies an important question about the relationship between U.S. courts and foreign entities, not coincidentally the subject of a new book by Justice Stephen Breyer.

An op-ed by Noah Feldman. Every U.S. Supreme Court term has a theme. For the term that begins Monday, the theme looks like it may be the achievement of longtime conservative aspirations using traditionally liberal constitutional tools. The court may finally prohibit government affirmative action, and it may effectively cripple unions by stripping them of the power to collect fees from nonmembers. The common thread in both cases is that precedent from the 1970s could be overturned by flipping a favorite liberal principle, one that progressives believe underpins the vary practice at issue. Affirmative action could die in the name of equality. And unions could lose in the name of free association.

An op-ed by Noah Feldman. Should the Securities and Exchange Commission be allowed to act as prosecutor, judge and jury in pursuing civil penalties against alleged violators of the security laws? If you think the answer is yes, you can only be heartened by Tuesday's decision by the U.S. Court of Appeals for the D.C. Circuit refusing to hear constitutional challenges to the SEC’s new powers under the Dodd-Frank Act. The court said that the defendant, George Jarkesy, could still bring his constitutional claims to the courts after the SEC reaches a final decision in this case, which hasn’t happened yet. In theory, the court could then reach a different result when reviewing the constitutional merits of the SEC’s powers.

On Monday, the marshal of the United States Supreme Court will ask everyone in the courtroom to rise and, as the justices file in through the maroon curtains and take their seats, ask God to “save the United States and this honorable Court."...Whether the arguments in any of the dissents this coming term will eventually prevail is impossible to predict; as Harvard Law Professor Mark Tushnet reminds us, only history can determine the great or “prophetic” dissents.

Starting college can be a scary, confusing time in a person’s life. You’re often away from your family for the first time. You have to figure out a major, and the kind of career you will want after college. You need to make new friends and create a new social circle. But what scares ‘Andrew’ (not his real name), a freshman at Tulane University in Louisiana, the thing that most concerns him about going to college is sexual assault—not being a victim of it, but being wrongly accused of committing it...“What’s most interesting about this case is that it would not have been brought ten years ago, and not because of any changes in law but because of changes in attitude,” Harvard Law lecturer and former judge Nancy Gertner told the The Daily Beast of the “froze” in fear justification the victim used for not telling Labrie to stop...In the past year, law professors at Harvard University and the University of Pennsylvania have openly opposed administrative changes to sexual assault policy. Harvard Law professor Elizabeth Bartholet told The Daily Beast, “there’s the risk we will find a lot of people responsible for sexual assault when they shouldn’t be."

A couple days before Congress went on its summer recess, Kenneth Feinberg hit Capitol Hill to visit Midwestern lawmakers whose constituents were unsettled about possible cuts to troubled pension plans that he was appointed to review. Feinberg is no stranger to difficult, emotionally charged tasks. Over the past 15 years the federal government has enlisted him to oversee the victim compensation funds set up after the 9/11 terrorist attacks, BP's Deep Horizon oil spill in the Gulf of Mexico and the General Motors' faulty-ignition-switch settlement. Feinberg, who turns 70 this month, took on yet another federal assignment in June when Treasury Secretary Jacob Lew appointed him special master to oversee the implementation of the Multiemployer Pension Reform Act of 2014...Between his newsmaking work and his weekly travels to Cambridge, Massachusetts, to teach an evidence class at Harvard Law School, Feinberg, who lives in suburban Washington, still provides mediation services to private cases that keep his office's lights on.

An op-ed by Noah Feldman. The criminal justice reform bill unveiled Thursday by a bipartisan group of senators is an attempt to answer a classic conundrum of political science: It’s easy for elected officials to vote for increased sentences, but who ever got elected on a platform of being softer on crime? If the bill passes, the reason will be partly a response to the racial injustice of overimprisonment as a result of mandatory-minimum sentences, a cause taken up by the Black Lives Matter protests. It will also reflect libertarian concerns about the overcriminalization of American life, and a distinctly conservative worry about the rising costs of imprisonment.

‘So if we are going to be kind,” wrote the South African author J. M. Coetzee, “let it be out of simple generosity, not because we feel guilty.” The notion that we should give our time and resources to others because we enjoy being benevolent is a compelling ethos. But research shows that it is not that simple: Oftentimes when we feel bad about ourselves, we are, in fact, more likely to do good things...Cass Sunstein and I found a similar result — that guilt is a powerful motivator — in a recent experimental study at Harvard Law School. We surveyed some 1,200 Americans and asked them whether they would be interested in enrolling in a green energy program if their state government offered them the opportunity to join one. The respondents who said that they would feel guilty if they did not enroll had a higher likelihood of being interested in signing up.

The celebration inside the W.E.B. Du Bois Medal ceremony was tempered by some harsh truths: The fight for African-American equality is not over, there is more work to be done, and everyone is implicated. On the heels of a bruising year that saw the deaths of Freddie Gray and Sandra Bland while in police custody, and the mass killings at the Emanuel African Methodist Episcopal Church in Charleston, S.C., the Hutchins Center for African & African American Research on Wednesday afternoon honored seven luminaries whose pivotal social and cultural contributions follow in Du Bois’ footsteps and “represent both the triumphs of the work that has been done and the vastness of the work that needs to be done,” said Harvard’s Henry Louis Gates Jr. in his opening remarks...In presenting the medal to [Eric] Holder, Harvard Law School Dean Martha Minow said his “priorities as attorney general showed a man committed to transformative change and the work that it entails: defending the president’s health care reform, advocating for equal marriage, espousing immigration reform, commitment to changing the criminal-justice system, and fervently opposing the recent and ugly chipping away of voting rights.”

With the Supreme Court poised to reconvene the first Monday in October, let’s clear the air about last term’s supposed turn to the left: It didn’t happen....Laurence Tribe, the preeminent appellate advocate and co-author of Uncertain Justice: The Roberts Court and the Constitution, warns against the entire endeavor of “trying to measure the left/right swing of the Supreme Court by bracketing its annual terms.” Lumping decisions together from one April Fool’s Day to the next would be no less arbitrary. “This is a set of nine justices whose views can best be represented by vectors pointing every which way,” Tribe says.