Media Mentions

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.

An op-ed by Noah Feldman. Palestinian leader Mahmoud Abbas told the United Nations General Assembly on Wednesday that the Palestinian Authority no longer considers itself bound by the Oslo Accords signed with Israel in 1993. Although he didn't specify the details, there is a legal theory that would entitle one party to withdraw from a treaty: a material breach by the other side. Whether Israel in fact has breached the Oslo Accords will no doubt be subject to debate. But regardless of whether Abbas has grounds for the withdrawal, he’s making a long-term strategic mistake. Now and in the future, Israelis skeptical of peace will be able to say that Palestinian leadership can't be trusted to make a treaty and stick with it.

An op-ed by Noah Feldman. We already knew that Pope Francis went out of his way while in the U.S. to visit the Little Sisters of the Poor, who object to filling out a form that would guarantee their organization an exemption from providing contraceptive care under the Affordable Care Act. But we found out Wednesday the pope also met with Kim Davis, in an event that did more than just signal support for Catholic conscientious objectors -- he was, unfortunately, giving succor to the very un-Catholic idea that public officials should break laws they don't like rather than resigning to avoid a conflict between faith and professional obligation.

...Advocates for families caught up in the child-welfare system hope that the national debate sparked by the free-range parenting movement will draw attention to the threats and intrusions that poor and minority parents endure all the time...Among them is Elizabeth Bartholet, a Harvard Law professor and faculty director of the school’s Child Advocacy Program. Although Roberts once worked as Bartholet’s research assistant, today they represent opposite poles in the debate. Bartholet, a white woman who formerly worked for the NAACP Legal Defense Fund, calls her opponents “extreme family preservationists” who are “putting kids at risk by insisting that, at almost all costs, they stay at home” with abusive or neglectful parents. She maintains that anecdotes about outrageous CPS intrusions are outliers: “More people need to think about all these issues from the point of view of the child.”

An op-ed by Susan Crawford. Ed Cunningham is the front man and fiddle player for the Comet Bluegrass All-Stars, a band that has been playing every Sunday since 1996 (“except Easter,” he says) at the Comet, a bar in the Northside neighborhood of Cincinnati, Ohio. Thus the name. The All-Stars can be heard, along with Roseanne Cash, on a new album from the Cincinnati Pops Orchestra called “American Originals.” He is also the head of the building code enforcement shop for the City of Cincinnati. That is not necessarily a likely launch pad for a thrilling data initiative that portends a tech renaissance that will shape the future of cities. But I’m here to tell you about Cunningham’s role in a project that does indeed provide that promise. With some help from an amazing program from the University of Chicago.

An op-ed by Mark Roe. Courts are striking down and calling into question an important class of contentious bond restructurings that until now have been viable. The barred restructurings are so-called “exit exchange offers,” in which the debtor company offers new bonds for old bonds. Those exchanging old bonds for new ones must first vote to delete some or all of the bonds’ protections. This structure is controversial—and is now being struck down—because it drops nonparticipating bondholders into a “death trap.” Either the bondholder takes the deal (even if they don’t want to) or suffers as its bonds lose protections and value.

Times have been changing for law firms for a while now. They must contend with shrinking revenue streams, due to sophisticated clients with increasingly complicated problems...Dr. Heidi K. Gardner, a Lecturer on Law and Distinguished Fellow at the Center on the Legal Profession at Harvard Law School studies law firms and how collaboration works in law firms...Her research analyzes and demonstrates the value of collaboration to the modern law firm, and how effectively collaborating--or getting specialists to work together across the boundaries of their expertise-- can help law firms provide more client-focused service and increase their revenue streams in the process.

An op-ed by Noah Feldman. Can the military tribunals at the prison in Guantanamo Bay, Cuba, try civilian offenses? In a landmark decision in June, a panel of the U.S. Court of Appeals for the D.C. Circuit said no, restricting the tribunals to international war crimes and short-circuiting most Guantanamo trials except for the Sept. 11-related ones. But the court decided Friday to rehear the case en banc, effectively vacating the panel’s opinion.

An op-ed by Cass Sunstein. There is unprecedented momentum for a real international agreement at the Paris climate talks in December: The U.S. is on track to make significant cuts in greenhouse-gas emissions, China has announced a cap-and-trade program and many others have made commitments of their own. The biggest obstacle? Justice -- or at least two ideas about justice. The first involves redistribution.

An op-ed by Charles J. Ogletree Jr. and David J. Harris. Raise your hand if you believe that a juror could make this statement and still be considered fair and impartial. “I knew I would vote for the death penalty because that’s what that n----- deserved.” There’s no mistaking that this statement was actually made. The juror himself signed a sworn affidavit admitting he made the statement. On Sept. 28, the U.S. Supreme Court will consider a request to review whether the injection of the juror’s racial bias violated the rights to an impartial jury and a fair trial of a man sentenced to death in Georgia. We believe that it did.

Elizabeth Bartholet, Faculty Director of the Child Advocacy Program at Harvard Law, discusses Governor Baker's announcement of the DCF overhaul.

An op-ed by Noah Feldman. “Happy Birthday” has been freed from its copyright shackles: Rejoice! But don’t rejoice too much. The federal district court in California that invalidated Warner/Chappell Music’s claim to own the lyrics didn’t rely on the logic you might imagine, namely that the words are as much a part of the public domain as, well, the phrase “Happy Birthday.” The court’s narrow decision, released last week, resulted from an incredibly detailed, legally arcane analysis of whether the alleged owner before Warner actually acquired rights to the lyrics alongside the rights to the music, which have since lapsed. The court seems to have reached the right result, but it hasn’t struck a blow for the freedom of song.

Can colleges provide due process for defendants accused of rape, and adequate justice for the victims? Or do these cases belong in the criminal courts? An Intelligence Squared debate featuring law professors from Harvard, Yale, CUNY and NYU. Motion: Courts, not campuses, should decide sexual assault cases. FOR: Jed Rubenfeld of Yale and Jeannie Suk of Harvard. AGAINST: Michelle Anderson of CUNY and Stephen Schulholfer of NYU.

A panel of legal and medical scholars and practitioners agreed in a panel discussion on Monday night that the American criminal justice system does not give adequate consideration to the cognitive underdevelopment of adolescents...A standing-room-only crowd of about 100 people packed the Wasserstein Hall classroom at Harvard Law School for the discussion entitled “From Troubled Teens to Tsarnaev: Promises and Perils of Adolescent Neuroscience and Law.” The event, hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, was the center’s first of the year. “Our country is going through a profound movement toward the punitive,” said Nancy Gertner, a senior lecturer at the Law School.

John McGinnis has an excellent post over at Library of Law and Liberty... highlighting the rigid liberal orthodoxy of the Association of American Law Schools (AALS). AALS has just sent around the notice of its 2016 annual meeting, highlighting its “Speakers of Note.” As Prof. McGinnis points out: “Of the thirteen announced, none is associated predominantly with Republican party, but eleven are associated with the Democratic Party. Many are prominent liberals. None is a conservative or libertarian.” McGinnis argues that the conference would profit from including some other perspectives. As it happens, one of the 13 “Speakers of Note,” Martha Minow, the dean of Harvard Law School, has written eloquently about the importance of intellectual diversity in the legal academy.

Do Washington's net neutrality rules run roughshod over the First Amendment? That's what some opponents have been arguing -- claiming that the government's regulations infringe on Internet providers' right to free expression. Now, in a flurry of responses to that charge, defenders of the rules appear eager for the biggest showdown over the meaning of corporate speech since the Citizens United case...Others are challenging the idea that Internet providers are even capable of speech. As pipes that carry consumers' Web traffic to and fro, Internet providers are just a "conduit" for people's speech, according to a group of academics including Harvard's Lawrence Lessig and Yochai Benkler, and Stanford's Barbara van Schewick. "It follows that when the Open Internet Rules require providers to carry others’ speech, they do not require the providers themselves to speak," they argue in their own brief.

Senator Elizabeth Warren embraced the Black Lives Matter protest movement in a forceful speech in Boston on Sunday, calling on police departments to train their officers in the de-escalation of violence and to outfit them with body cameras...Ronald S. Sullivan Jr., a professor at Harvard Law School who has written about Black Lives Matter, said he is not surprised Warren embraced the movement. But he said her rhetoric stands out. “Politicians have shied away from acknowledging the Black Lives Matter movement,” he said, noting that the same was true of the civil rights movement.