Media Mentions

An op-ed by Jacob Gersen. In the past several years politicians have lined up to condemn an epidemic of sexual assault on college campuses. But there is a genuine question of whether the Education Department has exceeded its legal authority in the way it has used Title IX to dictate colleges’ response to the serious problem of sexual assault...There’s a point to making the government jump through these hoops: By demanding transparency and facilitating public participation and judicial review, we can be more confident that the bureaucracy is up to good rather than ill.

As we reach the sixth anniversary of Citizens United two things are clear: (1) there's a dark money problem and (2) the SEC isn't helping to fix it yet. But it's also important to know that the SEC can still work on the issue despite a troubling rider added to the federal "cromnibus" budget...But hasty drafting has left the SEC some wiggle room. Harvard Law Professor John Coates has examined the budget language and believes the SEC can still work on the rule this year as long as the agency does not finalize it. And given that rule making processes can be long affairs (think of all the long delayed Dodd-Frank and Jobs Act rules), it would behoove the SEC to start work on corporate disclosure rules now, especially since 94 members of Congress have urged them to move ahead.

The automotive rules of origin in the Trans-Pacific Partnership (TPP) are most likely to hurt auto parts suppliers that are furthest removed from the finished vehicle or producers of materials that are less complex, easily shipped and face low-cost competition from Asia, according to industry, congressional and academic experts...U.S. steel producers are already facing a flood of imports, fueled largely by Chinese overcapacity. In addition, China over the past decade has emerged as a major supplier of auto parts to both the U.S. and Japan, and its share of those markets continues to grow for most products, according to data compiled by Harvard Law School Professor Mark Wu. China is the biggest supplier of brakes and wheels to the U.S. and Japan, and is also the largest supplier of auto body parts, airbags and miscellaneous parts to the Japanese market, the data show.

An op-ed by Hal Scott. Contrary to the views of Michael Lewis and other critics, America’s equity markets are not “rigged.” U.S. investors are actually much better off in today’s high-speed automated marketplace than they were in the old, largely floor-based markets when the NYSE and NASDAQ operated as virtual monopolies. Let’s take a look at the facts. The most important characteristic of strong equity markets is that they provide a fair marketplace for investors to buy and sell stock at the lowest transaction cost possible.

Almost all the major figures featured in the Netflix documentary Making a Murderer have been interviewed by various media outlets since the series premiered last month except for the man at the center of it all: Steven Avery. One reason for his absence: the Wisconsin prison system has so far declined to connect journalists to Avery."We are not facilitating interviews out of respect for the victims," Joy Staab, director of public relations for the Wisconsin Department of Corrections told The Hollywood Reporter on Tuesday...Harvard Law School professor and retired federal judge Nancy Gertner also said the explanation from the department of corrections was a new one for her. "According to very old law, the prison has a right to exclude cameras from the facility, but not to deny you a visit with a prisoner" [for an interview], Gertner said in an email. "But they have to be making decisions based on institutional concerns, concerns relating to the prison, not 'out of respect for the victims.'”

This history of Harvard Law School in its first century (1817-1917) appears at a time when several American colleges and universities are revisiting, and in some instances seeking to revise, their pasts. The revisionist impulses originate in a perceived dissonance between values currently endorsed by members of the educational institutions and the actions or attitudes of some of their prominent alumni or benefactors..But a challenge for those seeking to do serious historical scholarship remains: the need to understand the conduct of past actors before judging them by contemporary standards. When the scholarship is directed at the most visible law school in America, that challenge is accentuated. Daniel Coquillette and Bruce Kimball begin by noting that previous attempts to write the history of Harvard Law School have fallen into two categories: celebratory efforts glossing the school's accomplishments and minimizing its failures, and "attack histories" maintaining that the school's late-20th-century prominence was accompanied by the faculty's and administration's callous attitude toward students. Both sets of prior institutional histories, they conclude, "lack context and tend to be partisan, one way or the other."

An op-ed by Noah Feldman. Is the freedom of speech a right to speak? Or is it a right not to be punished by the government for what it thinks you’re saying? The difference may sound academic, but it isn’t for police officer Jeffrey Heffernan of Paterson, New Jersey, whose case was argued Tuesday before the U.S. Supreme Court.

Glenn Cohen liked The Martian, which this morning earned itself seven nominations in the Academy Awards, including a slot in the coveted Best Picture category. The Martian, Cohen says, was one of his top 15 movies of the year, “maybe top 10.” But Cohen isn’t a film critic. He’s a Harvard Law School professor who specializes in bioethics. And the narrative thrust of The Martian—a Herculean effort to save a stranded Matt Damon—tickled Cohen’s inner ethicist. Not long after seeing the film in theaters, Cohen wrote a short blog post titled “Identified versus Statistical Lives at the Movies.” In the post, Cohen argues that we latch onto individuals in peril when they have a name and face and become a sort of cause célèbre in the media. We will go to great lengths to save the identified individuals, financially and logistically. But when populations are in peril, when we’re presented with statistics rather than individuals, we’re less likely to take meaningful action.

An op-ed by Cass Sunstein. In last week’s State of the Union address, President Barack Obama appeared to get his biggest bipartisan applause for this line: “I think there are outdated regulations that need to be changed. There is red tape that needs to be cut.” Republican presidential candidates have spoken in the same terms, though more emphatically. One of their most urgent priorities is to reduce the stock of existing regulations, and slow the flow of new ones as well. Sure, Democrats like regulation more than Republicans do, but with the current focus on economic growth and national competitiveness, there’s both a need and an opportunity for bipartisan agreement here -- if not this year, at least in 2017.

An op-ed by Noah Feldman. Any remaining suspicion that the Supreme Court is soft on the death penalty should be dispelled by Wednesday’s judgment in two cases challenging capital sentences in Kansas. In an 8-1 decision, the justices reinstated death sentences that had been overturned by the Kansas Supreme Court. The state court had said that jurors must be told expressly that mitigating circumstances introduced by the defense didn’t need to be proved beyond a reasonable doubt, as findings for the prosecution must be proved. But the U.S. Supreme Court said no such instruction was necessary.

An op-ed by Noah Feldman. Who put the quid in the quid pro quo? Was it the same person who put the ram in the rama lama ding dong? The U.S. Supreme Court said Friday that it would consider a version of this eternal question in the appeal of Bob McDonnell, the convicted former governor of Virginia. To be specific, the court will decide whether the federal crime of bribing an official requires that the official actually do something specific in return for the bribe, or whether it’s enough for the official to do his usual job while generally hoping to influence policy in favor of the person who gave the bribe. The issue has major significance for all public officials -- and for the private actors who hope to influence them, whether legally or illegally.

As the 2016 election season ramps up, Harvard Law professor Laurence H. Tribe ’62 finds himself at the center of a political firestorm. Over the past month, Republican presidential hopeful and Law School graduate Ted Cruz denounced his former constitutional law professor Tribe as “a left-wing judicial activist” while speaking in a mid-January Republican debate, while rival candidate Donald J. Trump has tweeted and debated in support of Tribe...Tribe said he is not particularly invested in the question of natural born citizenship. Rather, Tribe said, his main interest is in “the Constitution and my sense of how dangerous it is when people play fast and loose with it in order to further their political positions.”

An op-ed by Einer Elhauge. The argument that Ted Cruz is eligible to run for president initially looked strong, then probable but uncertain. But closer examination shows it is surprisingly weak. The constitutional text provides that a president, unlike other elected officials, must be a “natural born citizen.” This language could not mean anyone born a citizen or else the text would have simply stated “born citizen.” The word “natural” is a limiting qualifier that indicates only some persons who are born citizens qualify. Moreover, when the Constitution was enacted, the word “natural” meant something not created by statute, as with natural rights or natural law, which instead were part of the common law.

An op-ed by Noah Feldman. Is the separation of church and state unconstitutional? You read that right. The U.S. Supreme Court said Friday that it would consider whether Missouri’s constitution, which bars state aid to religious groups, violates the U.S. Constitution by discriminating against religion. This claim sounds crazy, and to those who wrote the Missouri constitutional provision in the 1870s, it would’ve been. But the claim, in fact, isn’t utterly absurd -- if you consider the historical circumstances in which the provision was drafted.

An op-ed by Noah Feldman. We now have our major Supreme Court story of the year: The justices will review the constitutionality of President Barack Obama’s plan to defer deportations, stalled by the U.S. Court of Appeals for the 5th Circuit. The court’s decision to take the case, United States v. Texas, ensures major drama around the oral argument in April, and fevered anticipation in the run-up to the announcement of the court’s decision sometime in late June.

The Ethiopian government has reportedly ceased its plan to expand its capital, Addis Ababa, after protesters from Oromia demonstrated against the expansion plans over concerns that they would lose their homes...Many activists believe that there are even deeper political issues that no one is addressing. Kulani Jalata, a vocal activist for Oromo and a third year law student at Harvard Law School, believes that mainstream coverage of the protests is missing two key points. She stated those points in an interview with Truth In Media: “The first point regards the Ethiopian government’s illegitimacy. The Ethiopian government is entirely controlled by Tigrayan elites. The Tigrayan population is 4 million—Ethiopia’s population is 94 million.

The Labor Department on Wednesday waded deeper into the contentious issue of joint employment, seeking to clarify who is accountable for violations of employment laws when two different entities, like a manufacturer and a staffing agency, both have ties to the same worker...Conversely, plaintiffs’ lawyers may find the interpretation helpful when litigating cases. “You have a document you can present in court,” said Benjamin I. Sachs, a professor of labor and employment law at Harvard Law School. “You can say the administrator of the wage and hour division sees it this way.”

50 House Democrats wrote HHS and NIH last week that the government should exercise its march-in rights — handing over the patents on some high-priced drugs so that competitors can make cheaper versions. The government can invalidate intellectual property claims that are based on federally-funded research if the benefits of the products aren’t available to the public on “reasonable terms.” The lawmakers believe NIH guidance on when march-in rights would apply could discourage price gouging. Sounds like a good solution — but not so fast. The lawmakers believe NIH guidance on when march-in rights would apply could discourage price gouging. Sounds like a good solution — but not so fast. Rachel Sachs, a fellow at Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, writes. The government’s focus on basic research means its work may help lead to a drug’s development — but the drug may not actually be covered by patents derived from the federally-funded research.

At first glance, the navy spiral-bound tome known as the Bluebook seems rather unremarkable. But beyond its covers, the book details thousands of obscure and specific legal citation rules that require more than a thousand hours to compile. The massive, 582-page legal citation manual inspires both devotion and dread in its users—law students, scholars, and lawyers—who require its guidance for their professional work....Harvard Law Professor Jeannie C. Suk said the Harvard Law Review would not have grounds to claim copyright infringement unless BabyBlue copies specific examples used in the Bluebook. “It seems to me that trying to use copyright to protect the system of citation rules themselves is not promising, particularly given the already widespread adoption of those rules in the legal profession and by courts,” Suk wrote in an email.

Their names are familiar and unavoidable to students who inhabit the buildings and walk along the streets: Mather, Brattle, Holyoke. Their histories—as slaveholders—have largely been overlooked since the buildings were erected and streets paved, until recently. At both Harvard College and Harvard Law School, students, faculty, and administrators have begun reconsidering titles and symbols because of their associations with the legacy of slavery...Members of the advocate group demanding that Harvard Law change its seal, “Royall Must Fall,” though, disagree with Faust’s line of thinking. Law student Alexander J. Clayborne, a member of the Royall Must Fall and Reclaim Harvard Law School student activist groups, said that buildings and titles at Harvard should be reevaluated on a case by case basis. “The problem is the names on these buildings serve to honor these people; they serve to hold them up as someone to be imitated,” Clayborne said. “The fact of the matter is that these people engaged in morally reprehensible behavior and that shouldn’t be honored.”

The Citizens United decision, which amplified the role of money in American politics, also promised something like a level playing field. Both corporations and unions, it said, could spend what they liked to support their favored candidates. But last week’s arguments in a major challenge to public unions illuminated a gap in the Supreme Court’s treatment of capital and labor. The court has long allowed workers to refuse to finance unions’ political activities. But shareholders have no comparable right to refuse to pay for corporate political speech. At the arguments in the case, Friedrichs v. California Teachers Association, No. 14-915, the justices seemed poised to widen that gap by allowing government workers to refuse to support unions’ collective bargaining activities, too. The case should prompt a new look at whether the differing treatment of unions and corporations is justified, said Benjamin I. Sachs, a law professor at Harvard. “If we’re going to make this opt-out right for workers more and more muscular, which is what is going to happen with Friedrichs,” he said, “the question of symmetrical treatment of shareholders just becomes that much more important.”