Media Mentions

An op-ed by Noah Feldman. In retrospect, it seems inevitable that Boston Marathon bomber Dzhokhar Tsarnaev would get the death penalty. He's a self-acknowledged terrorist who killed and maimed adults and children in the middle of a major American city, which happens to be my own. The jury that sentenced him was limited to citizens who apparently believed that capital punishment was justified under at least some circumstances. If he's not going to be sentenced to death, who is? Yet I confess that, despite this ironclad logic, I still feel surprised and unsettled by the verdict -- because here in Massachusetts, where I was born and have lived most of my life, the death penalty has over the last several generations come to seem distant, foreign and unfamiliar.

An op-ed by Nancy Gertner. We all chose death for Dzhokhar Tsarnaev. Make no mistake about it. The death penalty law was passed in our name. Attorney General Holder and US Attorney Carmen Ortiz are employed by the government we elected. They sought death for Tsarnaev for the victims, including the Richard family, whose tragedy they highlighted, even though the Richards were opposed to Tsarnaev’s death. The government sought it for Boston — also a victim — even though the majority of the citizens of the city opposed it. The verdict in the United States v. Tsarnaev was literally brought in our name.

In her quarrel with President Barack Obama over trade legislation, Elizabeth Warren has got the law on her side. The Massachusetts senator has warned fellow Democrats that a fast-track trade bill now in Congress could undo U.S. laws such as the Dodd-Frank banking regulations later. A number of constitutional scholars and other legal experts say she’s right...On Warren’s side: One of the nation’s preeminent constitutional law scholars, Laurence Tribe of Harvard University, who counts Obama as a former student. “Any act of Congress or duly ratified treaty overrides any contrary prior federal legislation,” he said in an e-mail.

Who knew that George Lucas and constitutional law had so much in common? Evidently Cass R. Sunstein did. The Harvard Law School constitutional scholar and former administrator of the Office of Information and Regulatory Affairs for President Obama makes such an argument in his forthcoming Michigan Law Review article titled How Star Wars Illuminates Constitutional Law. The paper's abstract (and, trust us, this paper is abstract) sums up Sunstein's thinking on the topic: "Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis—and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time.

They’re back at it. The super PAC to end all super PACs – Mayday PAC– has started its 2015 grassroots efforts to lobby members of Congress to pass campaign finance reform laws. You might remember that Mayday PAC was started in 2014 by Harvard Law School professor, author, and activist Lawrence Lessig, in part to get candidates elected to Congress who are willing to change the way campaigns are funded. Things didn’t go as planned. Nearly every candidate the group supported in last fall’s elections failed. As the Mayday website says, “… in the campaigns, we didn’t move the ball far enough. So in 2015, we’re doing something different.” The group now wants to help voters connect with the members of Congress it has selected as “potential leaders.” It is asking supporters to sign a letter to the 47 congressional members “who Mayday believes could be the key to unlocking a majority,” according to a PAC statement.

The Radcliffe Institute for Advanced Study has announced its fellows for 2015-2016. The more than 50 men and women include creative artists, humanists, scientists, and social scientists, each pursuing “an ambitious individual project within the Institute’s multidisciplinary community.”...Twelve of the new fellows are Harvard faculty members; their names and the titles of their projects appear below....Christine A. Desan, professor of law, whose teaching covers the international monetary system, the constitutional law of money, constitutional history, political economy, and legal theory. She is the co-founder of Harvard’s Program on the Study of Capitalism...Annette Gordon-Reed, professor of law and of history, Pforzheimer professor at the Radcliffe Institute, whose 2008 book The Hemingses of Monticello won a Pulitzer Prize and the National Book Award for nonfiction...Intisar A. Rabb, professor of law and director of Harvard Law School’s Islamic Legal Studies Program, who studies criminal law, legislation and theories of statutory interpretation, and Islamic law.

...The impact of trade and trade deals on American workers remains a huge issue, even as President Obama seeks to persuade skeptical Democrats on Capitol Hill to give him the power to complete the Trans-Pacific Partnership (T.P.P.), a new agreement with eleven other Pacific Rim countries, including Japan, Malaysia, Vietnam, Australia, and Peru....A number of legal experts, however, including Yale’s Judith Resnik and Harvard’s Laurence Tribe, have raised similar concerns to the ones Warren expressed, warning that the T.P.P. could allow corporations and investors to challenge the laws and policies of member countries, including the United States, outside the scope of their existing legal system. In a recent letter to congressional leaders, the experts referred to a known provision of the T.P.P., which would see disputes resolved not by the courts but by a new conflict-resolution panel, the prospective makeup of which is far from clear. This panel “risks undermining democratic norms because laws and regulations enacted by democratically elected officials are put at risk in a process insulated from democratic input,” they warned.

An op-ed by Cass Sunstein. With the loss of at least eight lives, this week’s train crash in Philadelphia is of course a national tragedy. It’s crucial to understand why the accident occurred and to take steps to make such tragedies less likely in the future. But there is also a serious risk of overreaction. Many Americans might feel inclined to avoid taking trains, even though their safety record is extraordinarily impressive. There are two reasons for such overreactions, both of which have been carefully explored by behavioral scientists. The first is called “probability neglect”...The second source of public overreactions is called the “availability heuristic.”

An op-ed by Noah Feldman. An Amtrak train derailed and the Vatican recognized Palestine as a state, but in Boston, Deflategate is the only topic people want to debate. At the core of the discussion is the four-game suspension that the National Football League gave New England's Tom Brady for his general knowledge of deflating game balls and his non-cooperation with investigators. And the basic objection is this: How can Brady get four games for a game-ball infraction when Ray Rice got a two-game suspension for beating his wife? The objection from Patriots Nation is moral, not legal. Fans are responding to what feels like a basic problem in punitive justice: How can an act that’s morally worse be punished less severely than an act far less wrong?

The victims of Tuesday's tragic railway derailment in Philadelphia may find themselves twice victimized when they attempt to recover damages from Amtrak, thanks to a 1997 law that caps damages to all passengers injured in a major railway accident to $200 million. The Amtrak Reform and Accountability Act (ARAA), passed to save the railway from bankruptcy, was lauded by then-President Bill Clinton as the “most comprehensive restructuring of Amtrak since the early 1980s.” Legal analysts and plaintiffs' attorneys say it was a bailout...“They essentially traded off the right of the victim to obtain full compensation for the economic viability of Amtrak,” said John Goldberg, the Eli Goldston Professor of Law at Harvard law school. “If damages exceed the liability cap, someone is out of luck and won’t get full compensation. That’s a controversial policy judgment Congress made, one they have yet to make in other cases.”

An op-ed by Noah Feldman. We'll probably never know the accuracy of all the details in Seymour Hersh’s alternative account of the killing of Osama bin Laden. But Hersh’s version has enough verisimilitude that it calls for reconsidering what has always been the most troubling legal question, even under the official version of the event: Was the shooting of bin Laden proportionate and therefore justified under international law? Or was it, to put the matter bluntly, a war crime?

Senate leaders were all smiles Wednesday after they broke a 24-hour impasse and announced they had reached a deal on how to move forward on a fast-track trade negotiating bill. That legislation would give the president expedited authority to enter into a trade agreement with Pacific Rim countries, otherwise known as the Trans-Pacific Partnership, or TPP...The White House defends the restrictions, pointing out that 12 countries are still negotiating a sensitive trade agreement and publicizing trade terms before they're finalized could make bargaining more awkward. It's a reasonable point, says Robert Mnookin, who heads the negotiation program at Harvard Law School. "The representatives of the parties have to be able to explore a variety of options just to see what might be feasible before they ultimately make a deal. That kind of exploration becomes next to impossible if you have to do it in public," said Mnookin.

An op-ed by Cass Sunstein. In the past 40 years, we have seen a revolution in thinking about thinking. The central idea is that human beings depart, in systematic ways, from standard economic approaches to rationality. Because the departures are systematic and predictable, they can be taken into account by researchers, clinicians, and others who want to improve health and reduce premature mortality. Behavioral scientists have shown, for example, that people are “loss averse”; they tend to dislike losses more than they like corresponding gains...These and related findings help to explain preventable health problems and also suggest a wide range of potentially promising interventions.

What would make a smoker more likely to quit, a big reward for succeeding or a little penalty for failing? That is what researchers wanted to know when they assigned a large group of CVS employees, their relatives and friends to different smoking cessation programs. The answer offered a surprising insight into human behavior. Many more people agreed to sign up for the reward program, but once they were in it, only a small share actually quit smoking. ...“This is an original set of findings,” said Cass R. Sunstein, a Harvard law professor who helped develop some influential ideas in the field of behavioral economics, notably that if the social environment can be changed — for example, by posting simple warnings — people can be nudged into better behavior. “They could be applied to many health issues, like alcoholism, or whenever people face serious self-control problems.”

Maura Healey is having a difficult time understanding the NFL’s justice system. “I’m just struck by the fact that somebody like Ray Rice gets a two-game suspension and Tom Brady, over deflated balls, is facing a four-game suspension,” said the Massachusetts attorney general. “It doesn’t add up for me.” That has been a common refrain since the NFL doled out a four-game suspension to Brady, the Patriots quarterback, for his role in the deflation of game-used footballs as outlined in the Wells Report, and his lack of cooperation in the investigation...“This is conduct detrimental, the clause everybody signs on for under the uniform player contracts, and all the teams agree to it,” said Peter Carfagna, a sports law lecturer at Harvard Law School. “This is an on-field misconduct situation, which makes it different. “There’s always been finding a careful distinction between on-field and off-field misconduct.”

Berkeley City Council on Tuesday unanimously passed the first reading of a “Right to Know” ordinance to require cellphone retailers in Berkeley to provide consumers with information that warns them to keep a minimum safe distance between their bodies and their phones...City staff had assistance from Lawrence Lessig, a law professor at Harvard, and Robert Post, dean of Yale Law School, in drafting the ordinance. Lessig has offered to defend the city pro bono if the law is challenged, as expected, by cellphone manufacturers...“How I carry it is how people should not carry it,” Lessig said. “I carry it in my back pocket.”

The City Council of Berkeley, California last night unanimously voted to require electronics retailers to warn customers about the potential health risks associated with radio-frequency (RF) radiation emitted by cell phones, moving a step closer to becoming the first city in the country to implement a cell phone "right to know" law...The Berkeley law is more narrowly tailored. "This ordinance is fundamentally different from what San Francisco passed," Harvard law professor Lawrence Lessig, who helped draft the Berkeley law, told the council at last night's meeting. He has offered to defend the measure in court pro bono. "San Francisco's ordinance was directed at trying to get people to use their cell phones less. This ordinance is just about giving people the information they need to use their phone the way it is intended."

An op-ed by Noah Feldman. Ben Carson will never be president. (There, I’ve said it.) But his candidacy and the views associated with it aren't a joke; they’re an important reflection on the current state of American populist conservatism. That's why it's worth analyzing Carson’s recent comments suggesting that the president may not have to obey the U.S. Supreme Court's interpretation of the law.

One of the major bragging points of Obamacare, the landmark legislation overhauling health insurance in the U.S., was that it guaranteed free birth control for women. Or at least, it was supposed to. After reports in April revealed widespread noncompliance, the Department of Health and Human Services issued new guidance Monday detailing precisely how health insurance companies have to cover preventative health care for women, including contraception, as required by the Affordable Care Act....“I don’t think that these new regulations are a cure-all,” Carmel Shachar, an attorney at the Center for Health Law and Policy Innovation at Harvard University in Massachusetts, said. “There will still be women who find that their birth control of choice won’t be covered or do have cost-sharing,” she said, referring to when patients must pay out-of-pocket fees, such co-pays or deductibles. Still, she described the effect of the guidance as a positive step overall, saying, “It’s a real sign from HHS that they’re acknowledging that insurance companies are undermining the spirit of the law.”

The Berkeley City Council voted unanimously 9-0 Tuesday night to pass the cell phone "right to know” ordinance that supporters say is about protecting the public....Advocates for the Berkeley ordinance say they are prepared for a legal fight. They've already enlisted the help of Harvard Law School's Lawrence Lessig. "This is not about telling people not to use cell phone. It's just saying here's the information you should know and make your own decision," said Lessig, a constitutional law expert.

The popularity of an American legal education is dwindling in the face of disappointing job prospects for graduates. To rescue themselves from oblivion, some law schools are fashioning themselves after a more successful educational institution: business school. In April, New York Law school announced it would make room in its building for an offsite location for the University of Rochester's Simon Business School, making it easier for law students to take B-School classes. The same month, Harvard Business School announced it would offer incoming students an 11-week course in the fundamentals of business created by HBX, its online business training program. “Lawyers need to understand and use the tools and skills involved in growing and running a business,” said Harvard Law School Dean Martha Minow in a statement on Harvard Business School’s website. “Law firms, businesses, and also public sector and nonprofit employers increasingly value these skills.”