Media Mentions

Senator Mitch McConnell of Kentucky has begun an aggressive campaign to block President Obama’s climate change agenda in statehouses and courtrooms across the country, arenas far beyond Mr. McConnell’s official reach and authority. The campaign of Mr. McConnell, the Senate majority leader, is aimed at stopping a set of Environmental Protection Agency regulations requiring states to reduce carbon pollution from coal-fired power plants, the nation’s largest source of greenhouse gas emissions...To make his case, Mr. McConnell is also relying on a network of powerful allies with national influence and roots in Kentucky or the coal industry. Within that network is Laurence H. Tribe, a highly regarded scholar of constitutional law at Harvard Law School and a former mentor of Mr. Obama’s. Mr. Tribe caught Mr. McConnell’s attention last winter when he was retained to write a legal brief for Peabody Energy, the nation’s largest coal producer, in a lawsuit against the climate rules. n the brief, Mr. Tribe argued that Mr. Obama’s use of the existing Clean Air Act to put forth the climate change regulations was unconstitutional.

The Environmental Protection Agency’s (EPA) intent to use the Clean Power Plan to regulate carbon dioxide emissions is unconstitutional, says Laurence Tribe, professor of constitutional law at Harvard University. Tribe recently filed comments with the EPA saying that the Clean Power Plan is “a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority.”

...The Ward or Village-Tract Administration Law was passed in 2012 to replace two laws enacted under British rule in 1907. It requires residents to inform local authorities when visitors spend the night at their homes. In its report, Midnight Intrusions: Ending Guest Registration and Household Inspections in Myanmar, released yesterday, NGO Fortify Rights called on the government to stop searches of homes without a warrant and abolish requirements to register overnight guests...Matthew Bugher, a pro bono researcher with Fortify Rights and a global justice fellow at Harvard Law School, said the provisions violated three rights in international law, the right to privacy, the right to freedom of movement and the right to freedom of association. “International law allows some limits to be placed on those rights, but these provisions do not even come close to meeting those standards,” he said.

...[former Lehman Brothers C.E.O. Dick] Fuld remains fabulously wealthy, although just how wealthy remains a subject of some dispute. During the same October 2008 congressional hearing in which he sparred with Mica and Henry Waxman, the committee chairman, about how much money he had made at Lehman, Waxman released a chart showing that Fuld had been paid $484 million between 2000 and 2007. Under oath, Fuld argued he had received closer to $310 million. Later in the hearing he conceded that it may have been $350 million. A subsequent analysis by Harvard law professor Lucian Bebchuk and colleagues concluded that the figure was $522.7 million.

An op-ed by Noah Feldman. When the front gate to the Tunisian national parliament was locked, during my visits from 2012 to 2014, my research associate and I discovered we could walk around to the back gate, which was always open so the public could access the national museum. Eventually we realized we could even park there, no questions asked. Unfortunately, terrorists noticed this, too -- and 17 tourists were killed Wednesday in Tunis during an attack on the Bardo, as the parliament-museum complex is called. This loss of life is more than a blow to the Tunisian tourism industry or the newly elected government. It represents a loss of innocence for the one country that has emerged from the Arab Spring as a constitutional democracy. Tunisia will now have to admit that it has a homegrown terrorist movement that wants to undermine the vibrant new institutions the country is so justly proud of having created.

An op-ed by Noah Feldman. By definitively re-electing Benjamin Netanyahu, Israelis refused to go left and refused to go right. This was what Netanyahu expected when he called for early elections -- and having just won his fourth, he certainly counts as the expert. The important question now is why Israelis are sticking with the status quo when external critics from the left and internal critics from the right were hoping for a meaningful course correction. Start with the biggest headline, namely the failure of the center-left coalition led by Isaac Herzog and Tzipi Livni to eclipse support for Netanyahu’s center-right party and its far-right partners.

An op-ed by Cass Sunstein. This week, Oregon became the first state to adopt automatic voter registration. If you’re an Oregonian over 18, and if you’ve dealt with the state’s Driver and Motor Vehicles Division since 2013, you’ll get a notice in the mail letting you know you’re registered to vote. Then, unless you opt out within three weeks, you’ll automatically receive a ballot 20 days before every election. (Oregon has all-mail voting.) Almost immediately, 300,000 more voters -- a big chunk of the estimated 800,000 state residents who are eligible but still unregistered -- are likely to be signed up.

The latest rap against big corporations is that they’re returning too much money to shareholders through dividends and stock repurchases. What they should be doing, the complaint goes, is using that money to build new factories, create new products and increase research. Their stinginess, the argument continues, is one reason for the lackluster recovery...Similarly, most executives don’t automatically favor share purchases over hard investment projects, argues Harvard law professor Lucian Bebchuk, an expert on corporations. If they had hard projects that were more profitable than purchasing shares, they would actually do better personally, he says. Firms would become more profitable, so their stock prices and executive compensation would rise even further. What’s happening, Bebchuk says, is that investment funds are being channeled from slow-growing to fast-growing sectors.

People don't always like what they see when they Google themselves. Sometimes they have posted things they later regret — like unflattering or compromising photos or comments. And it can be maddening when third parties have published personal or inaccurate material about you online. In Europe, residents can ask corporations like Google to delete those unflattering posts, photos and other online material from online search results. And under the right circumstances, those entities must comply...At the latest event from Intelligence Squared U.S., two teams tackled these questions while debating the motion, "The U.S. Should Adopt The 'Right To Be Forgotten' Online." ...Against the motion...Jonathan Zittrain is the George Bemis Professor of Law at Harvard Law School.

An op-ed by Noah Feldman. Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed? Of course not. Obeying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law. It would put the administration in the position of flouting the court’s authority. It would be substantially more outrageous even than the Alabama Supreme Court’s order to its probate judges to ignore a federal ruling striking down the state’s anti-gay-marriage law. For these reasons, it’s also completely unrealistic.

As President Obama forges ahead in his fight against climate change, a leading Harvard Law School scholar says a central piece of the president’s strategy is akin to “burning the Constitution” merely to advance an environmental agenda. In testimony before the House Energy and Commerce Committee on Tuesday, Harvard constitutional law professor Laurence H. Tribe said the Environmental Protection Agency’s plan to limit greenhouse gas emissions from U.S. power plants is built on a shaky legal foundation. The proposal, Mr. Tribe argues, far exceeds EPA’s authority under federal law and strikes a blow to the 10th Amendment by essentially making states subservient to Washington on energy and environmental matters.

The law professor, who taught President Obama says the Environmental Protection Agency lacks the statutory and constitutional authority to force states to implement plans to cut carbon emissions at existing power plants. “In my considered view, EPA is off on a constitutionally reckless mission,” Laurence Tribe, a professor at Harvard Law School, said in prepared remarks at a House Energy and Commerce Subcommittee on Energy and Power hearing on Tuesday...“This submissive role for the states confounds the political accountability that the Tenth Amendment is meant to protect,” Tribe said in his remarks. “EPA’s plan will force states to adopt policies that will raise energy costs and prove deeply unpopular, while cloaking those policies in the Emperor’s garb of state “choice” – even though in fact the polices are compelled by EPA.”

U.S. authorities have long argued that foreign bribery is a sign of deeper rot at a company that can sting investors. But many U.S.-based Foreign Corrupt Practices Act cases have not caused lasting damage to companies, even those that pleaded guilty to widespread bribery. But the widening scandal at Brazil’s state-controlled energy company Petrobras is illustrating just how hard investors can be hit when corruption is alleged to be endemic at a firm. The allegations have helped push its stock price down more than 60% since September and led to the ouster of its chief executive last month. The scandal also caused Moody’s to reduce the company’s debt to junk status. But that could be just the start. Anger over the revelations sent more than a million Brazilian protesters into the streets last weekend, in a sign that the issues may lead to a broader, more painful reorganization of the firm, said Stephen Davis, an associate director of Harvard Law School’s program on corporate governance. “It has elevated corruption on the risk hierarchy within the investor community,” Mr. Davis said. The case begs the question “if a company is looking the other way or tolerating corruption what else is the company doing that might not be in the shareholders’ interest?”

To have any chance of success, social movements must multiply awareness. Change is impossible unless people believe that change is needed. That is why activists spend so much time and effort spreading the word. But for all that effort, awareness is actually the easy part. The difficulty lies in cultivating knowledge so it grows into passion – and eventually action. That is precisely the challenge for the New Hampshire Rebellion and other groups battling the corrupting influence of money in politics...Lawrence Lessig, the Harvard law professor behind the nonpartisan Mayday PAC, draws inspiration from the late Doris “Granny D” Haddock, who 15 years ago walked across the nation at age 90 seeking campaign finance reform. In January, Lessig led a walk from Dixville Notch to Concord, which culminated in hundreds converging on the State House – a guerrilla force for peaceful change.

It was the sort of publicity you cannot buy. The day before HBO broadcast the final episode of the six-part documentary series “The Jinx,” the subject of the film, Robert A. Durst, was arrested on a murder charge. The arrest gave the impression that something dramatic would happen in the finale, and the show did not disappoint. Mr. Durst delivered what sounded a lot like an unwitting admission of guilt: “What the hell did I do?” he whispered to himself in the bathroom, apparently unaware that his microphone was still on. “Killed them all, of course.”...The formulation of the apparent confession was problematic in its own right. It was suggestive, but by no means definitive. In a column on Bloomberg View, the Harvard Law professor Noah Feldman compared it to a Shakespearean soliloquy. “Even the question-and-answer form (‘What the hell did I do? Killed them all, of course’) is reminiscent of the untrustworthy soliloquies delivered by Hamlet,” Mr. Feldman wrote. “The soliloquist asks himself the big questions while alone on stage (‘To be or not to be?’), and tries on different answers.”

New technologies are always a mixed blessing, their potential for good carrying with it the risk of evil. The deep challenge for a democracy is to develop legal rules, social practices and institutional arrangements that, at some reasonable cost, separate good from bad behavior...Protecting our privacy from the prying eyes and ears of government is the subject of Bruce Schneier’s “Data and Goliath,” whose title suggests an uneven struggle...Mr. Schneier, a security technologist and fellow at the Berkman Center for Internet and Society at Harvard Law School, is attuned to the smallest potential dangers: He points out (rightly) how easy it is to use metadata to identify by name participants in any medical study, or to track cellphone usage near the site of a labor dispute without a warrant.

California has banned state court judges from belonging to the Boy Scouts. The move extends an earlier ban on judges belonging to groups that discriminate on the basis of sexual orientation, but had an exemption for youth groups. Judges have one year to sever their ties with the Boy Scouts...Harvard Law Professor Noah Feldman says the current state of the law allows judges to belong to religious groups that discriminate but not secular organizations that discriminate. "So if the particular judicial code bans belonging to organizations that discriminate on the basis of sexual orientation, then it would make sense that the Boy Scouts would be included," he says. But Feldman predicts the U.S. Supreme Court will one day take up the question of judges' free association rights. And if that happens, Feldman thinks the court will say judges can participate in the Boy Scouts, regardless of the group's anti-gay policies.

David Wilkins, professor of law at Harvard University and Director of the Center on the Legal Profession, said partners are increasingly switching firms in groups — as demonstrated by at least 12 Pillsbury Winthrop Shaw Pittman partners who are joining Winston & Strawn. Wilkins explained what’s driving this trend, and why he expects it to continue at major law firms.

An op-ed by Noah Feldman. If you confess to murder alone, in the bathroom, while looking into the mirror -- and wearing a microphone -- is your confession admissible in court? On the surface, this is the question raised by Robert Durst’s statement, aired Sunday night in the final episode of HBO’s “The Jinx”: “What the hell did I do? Killed them all, of course.” Answering the question requires going deeply into the law -- but also into the circumstances of the statement. At the bottom lies a profound question about fantasy versus reality, the nature of a soliloquy, and the fascinating human strangeness unleashed by the era of reality television.

An op-ed by Cass Sunstein. U.S. Supreme Court justices may be wise, obtuse, fair or political, but we don't ordinarily think of them as eccentric. William O. Douglas, who was on the court in the middle of the 20th century, has long counted as the only unambiguously eccentric justice. But now, as an opinion on separation of powers issued last week makes clear, Justice Clarence Thomas has joined him. A judge can be counted as eccentric if he holds positions that don't fit with established law and that depart, frequently and significantly, from those that prevail within the court. A judge who is eccentric is not necessarily wrong, and eccentricity can be appealing. To many liberals, and especially to many law students, Justice Douglas seemed bold and admirably rebellious, in part because he was not bound by precedents.

Australia has been urged to comply with a United Nations ruling and allow more than 30 refugees to challenge the secret ASIO assessments used to justify their indefinite detention. Harvard University law specialist Gerald Neuman, who recently completed a four-year elected term on the UN's top human rights expert panel, said Australia's refusal to reveal the reasons for detention was shocking. "No one questions the ability of Australia to take steps to protect its security in proper ways," Professor Neuman said on Monday. "[But] I don't understand Australia to have ever said these men, women and children were a threat to the security of Australia." Professor Neuman, who served as the United States' representative on the UN Human Rights Committee until December last year, contributed to a scathing UN ruling against Australia's "cruel and degrading" practice to lock up refugees indefinitely without a right of appeal.