Media Mentions

...When things like this happen, questions arise: Who’s responsible? If treatment makes things worse — meaning that a patient needs more care than expected — who pays? It depends...But lawyers who collect only when there’s a settlement or a victory may not take on a case unless it’s exceptionally clear that the doctor or hospital was at fault. That creates a Catch-22, said John Goldberg, a professor at Harvard Law School and an expert in tort law. “We’ll never know if something has happened because of malpractice,” he said, “because it’s not financially viable to bring a lawsuit.” That leaves the patient responsible for extra costs.

When the chief justice is in the majority, he gets to decide who will write the Supreme Court’s opinion. This is, Justice Felix Frankfurter once wrote, “perhaps the most delicate judgment demanded of the chief justice.” Chief Justice John G. Roberts Jr. has approached the task with characteristic rigor. In one sense, a new study concluded, he is scrupulously fair: Every justice gets very close to the same number of majority opinions. In another sense, he plays favorites, doling out major assignments and unappealing ones with keen attention to strategy. Chief Justice Roberts finished his 10th term in June. In those years, he was in the majority 86 percent of the time, according to the study, which was prepared by Richard J. Lazarus, a law professor at Harvard, and published in The Harvard Law Review Forum...“One of the easiest ways to reduce the risk of the swing justice swinging the other way is to assign the opinion to that justice, thereby ensuring that the opinion is one he or she will be willing to join, even if the court’s holding may be far narrower as a result,” Professor Lazarus wrote.

An op-ed by Noah Feldman. Which do the conservative justices hate more: personal-injury lawyers or interpreting a law loosely to expand the power of lower courts? That question will be on the table Monday at the U.S. Supreme Court. The justices are hearing oral argument in a potentially important case about whether you have to pay back your insurance company for medical bills after you’ve sued and recovered from the person who injured you in the first place. Montanile v. National Elevator Industry Health Benefit Plan has all the marks of a case only lawyers could love. It involves insurance, money, a drunken driver and what may arguably be the most complicated statute in the entire U.S. Code, the Employee Retirement and Income Security Act of 1974, known as Erisa.

An op-ed by Cass Sunstein. The attorney general of New York, Eric T. Schneiderman, is investigating Exxon Mobil for possible legal violations in connection with its public statements about climate change...While the legal issues are likely to be technical and complex, the investigation also raises fundamental questions about the ethical responsibilities of corporate officials, both to their investors and to the public as a whole.

An op-ed by Noah Feldman. The Church of Jesus Christ of Latter-day Saints seemed to have made its peace with the U.S. Supreme Court’s gay-marriage decision over the last four months. Senior leaders rejected civil disobedience a la Kentucky clerk Kim Davis, and helped pass a housing discrimination bill in the Utah legislature that included protections for gay people. The church also decided to maintain its close relationship with the Boy Scouts of America notwithstanding that organization’s willingness to allow gay scoutmasters. But in a strong signal that respect for the law and for organizational federalism don’t amount to a softening of the Mormon religious position on gay unions, the church has informed its lay leaders that same-sex marriage is apostasy. The children of same-sex couples will be barred from the faith until they turn 18 and repudiate their parents’ unions.

An op-ed by Noah Feldman. The saga of the Keystone XL pipeline seemed to come to an end Friday when U.S. President Barack Obama officially rejected TransCanada’s request by saying the oil pipeline from Canada to the Gulf Coast would “undercut” American leadership on climate change. But the pipeline isn’t completely dead. Because of falling oil prices, it’s mostly a partisan issue. If Democrat Hillary Clinton is elected president in 2016, she won’t reverse Obama’s decision. But if a Republican is elected, he or she might well make the opposite call, and be supported by a Republican Congress.

Lawrence Lessig, a Harvard law professor, jumped into the race for the Democratic presidential nomination in September, running on a platform focused on getting big money out of politics. Since he declared his candidacy, though, Lessig struggled to get attention from the media and voters, and ultimately couldn't get an invitation to the Democratic debates. By last week, he had decided to end his short-lived campaign. "Of course, from the beginning, we recognized that this improbable campaign depended on being able to get into the debates," Lessig tells NPR's Michel Martin...In an interview with Martin, he explains the philosophy that motivated his presidential bid — and what he hopes to see from other candidates now that it's finished.

Last week, Harvard Law School announced its “Free the Law” project, a program aimed at making one of the world’s largest collections of United States case law entirely free, digitized and publicly accessible. Harvard is partnering with Ravel Law, an online legal search platform, to scan a total of 40,000 books and distribute the documents on the internet by 2017. This is a momentous victory for those in favor of more widely accessible information. Though the information will not be fully publicly available until 2023, the movement to provide free and comprehensive legal documents is cause enough to celebrate. As Jonathan Zittrain, a professor of law at Harvard, put it: “Libraries were founded as an engine for the democratization of knowledge … The materials in the [Harvard] library’s collection tell a story that goes back to the founding of America, and we’re proud to preserve and share that story.” But Harvard should not be the only university to make important and historical information accessible.

A book review by Samuel Moyn...That such a life—a uniquely fortunate one in the annals of history—is essentially unearned in a world of horrors is a truth that our culture keeps at bay most of the time. But disquiet about it erupts all the same, in some people more than others. What if you were so often troubled by the incongruity between your sense of material comfort and the destitution of others, or unable to find routine defenses against it, that you felt you had to change your life entirely? “It was never a new idea that people are selfish,” Larissa MacFarquhar observes in one of the lapidary aphorisms scattered throughout Strangers Drowning, her masterpiece of a book about those among us who decide to drop everything and become extreme altruists.

An op-ed by Noah Feldman. Can a woman be a rabbi? For many American Jews, the issue is long settled: The Reform movement first ordained a woman in 1972; the Reconstructionist movement in 1974; and the Conservative movement in 1985. Regina Jonas, usually considered the first female rabbi, was ordained in Germany in 1935, and died at Auschwitz after serving as a rabbi in the Theresienstadt concentration camp. For Orthodox Judaism, however, the issue has been more complicated. In the past week, the two major Orthodox rabbinical associations in the U.S., the Rabbinical Council of America, which is roughly modern Orthodox, and the Moetzes Gedolei HaTorah of America, roughly ultra-Orthodox, issued public statements condemning in definitive terms the possibility of Orthodox women being ordained as clergy.

In a sign of growing government interest in rising prescription-drug costs, federal officials on Thursday said state Medicaid programs may be violating federal law by denying patients expensive hepatitis C medications. They also asked drug makers to provide information on their pricing arrangements with health insurers, which officials said could help ease the financial burden on state budgets...Patient advocates praised CMS’s guidance to states, which they said would help increase the availability of treatments for patients. Robert Greenwald, director of Harvard University’s Center for Health Law and Policy Innovation, said in an email that his group “applauds CMS for clearly articulating that restricting access to HCV treatments solely on the basis of cost and using medically unjustifiable criteria is unacceptable.”

More than two years after Texas's controversial abortion law was approved over a widely-watched filibuster, the U.S. Supreme Court could decide Friday whether to give the legislation a place in national history. The court has scheduled a private session to discuss whether to hear arguments about several cases, including a lawsuit filed by abortion providers challenging the law known as House Bill 2...Glenn Cohen, a former U.S. Department of Justice lawyer and current law professor at Harvard University, said the cases satisfy the two most important criteria: they are important, and they have produced different decisions from different federal appeals courts. "The petition in this case makes a good showing on both fronts," Cohen said. "It's been quite a number of years since the Supreme Court decided an undue burden case, and this would seem to be a perfect opportunity."

A long-running effort led by Harvard law scholars to track material that disappears from the Internet is expanding with international partners. The project, now called Lumen, was launched in 2001 under the name Chilling Effects. It was a response to the Digital Millennium Copyright Act, a federal law that allowed companies, governments, and people to request that Internet companies take down any material that was infringing on their copyright. By keeping a record of takedown requests, the site would “allow people to see what kinds of requests were being made, who was making them, what kind of content we were talking about,” said Christopher Bavitz, a co-director at Harvard’s Berkman Center for Internet and Society which hosts the project.

The challenge for co-operatives, says Yochai Benkler, is to be more self-aware. He believes that co-ops need to be “more self-conscious (in the way that commons-based production online is) of the broader social, economic role of co-ops as an alternative model well beyond the business sustainability and the success of the individual organisation”. Prof Benkler has been studying commons and co-operation for over 20 years. He started researching Wikipedia when it was just six months old and has since written about the co-operative dynamics and social and political implications of large-scale online co-operation.

Two Harvard Law School organizations debated gun rights and regulations at a Colloquium on Gun Control this Thursday night. The Federalist Society, a conservative, moderate, and libertarian group, argued for the preeminence of the Second Amendment in granting citizens the right to bear arms, while the American Constitution Society, a progressive organization, contended that guns’ detriments outweigh their benefits. Caleb C. Wolanek [`17], the debate chair for the Federalist Society, began the conversation by stating the importance of respecting the rights of any American who chooses to own a gun...Kassi Yukevich [`17], representing the American Constitution Society, argued that America’s lack of effective gun laws have contributed to many tragedies throughout the United States.

An op-ed by Roi Bachmutsky [`17]. There is a joke in Burma* that George Orwell unintentionally wrote a trilogy about the country: Burmese Days about its colonial era, Animal Farm about its road to socialism, and 1984 about its military dictatorship. With Burma's national elections coming up in just one week, President Thein Sein has been using smoke and mirrors to persuade the world that dystopian Burma is history. The final act is the recent signing of the Nationwide Ceasefire Agreement (NCA) with the Ethnic Armed Organizations that have long been plagued by armed conflict with the regime. Burma has changed, the story goes: it is a democracy, it has made peace. Enticing though it may be, this narrative is just not true.

This summer, the nation watched in anticipation as the South Carolina legislature voted to remove the Confederate battle flag from its State House. Nearly four months later, another symbol is being challenged, now at at this University. The Harvard Law School’s seal, derived from the coat of arms of the family of Isaac Royall Jr., a slaveholder, has come under fire from a new student group at the Law School called “Royall Must Fall.” Members of this group argue that the seal must be changed because of the history of slavery it represents. Despite our vigorous support of ending the use of the Confederate battle flag in all instances, we see efforts to change the seal as ultimately misguided.

An op-ed by Noah Feldman. Pot is news, and Ohio voters’ rejection of an amendment to legalize marijuana Tuesday deserves the headlines it’s gotten. But a more important story is easy to miss: Those same voters amended the Ohio Constitution to make it very difficult for future initiative promoters to give themselves a monopoly through the state referendum process. The new amendment was targeted at the marijuana growers, who wanted a monopoly in exchange for having advocated legalization. Yet the new amendment is an important example of a very unusual constitutional phenomenon: an entrenching amendment that makes future amendments much harder.

The debate has been raging in various forms for the last 30 years — whether corporate short-termism is a problem and, if it is, is it hurting American businesses and the economy? Short-termism is exactly what it sounds like: companies managed for the short term, with decisions driven by the need to meet shareholder expectations about quarterly earnings and stock prices...Mark J. Roe, a professor at Harvard Law School, is not ready to demonize short-termism and activist investors. He said some of the consequences of activist investor efforts have been good for companies. “On average I think activist investors are probably a good thing, with some problems,” Mr. Roe said. “The good thing is that managers and boards can get complacent and rest on their laurels. Activist investors can give them a kick when they aren’t moving fast enough.” However Mr. Roe is not a fan of those investors pushing companies to borrow more so they can deduct more interest from their tax bill. “I don’t think we should be producing wealth by creating more leverage and a bigger tax deduction,” he said. The way to fix the problem is not to stop activists, he added, but to change the tax code so that debt and equity are taxed equally.

An op-ed by Nancy Gertner. Over a 17-year judicial career, I sent hundreds of defendants to jail — and about 80 percent of them received a sentence that was disproportionate, unfair, and discriminatory. Mass incarceration was not an abstraction to me. Sadly, I was part of it. Last weekend’s release of 6,000 prisoners from federal prison is an encouraging start to reform, but it’s only a start.

In a visit to Harvard Law School, retired four-star general and former Secretary of State Colin L. Powell shared lessons from his service as a close adviser to three presidents, tips on negotiating with difficult foreign leaders, and his thoughts on strengthening support for families and children in the United States. Powell on Friday took part in the American Secretaries of State Program developed jointly by the Program on Negotiation at Harvard Law School, the Future of Diplomacy Project at Harvard Kennedy School, and Harvard Business School. Law School Dean Martha Minow introduced the afternoon session, which was moderated by HLS Professor Robert H. Mnookin, HBS Professor James Sebenius, and HKS Professor Nicholas Burns.