Media Mentions

An op-ed by Mark Roe: Should bankruptcy laws that allow companies broad latitude in selecting a venue be reformed? The venue statute effectively allows those filing the case to choose which district’s bankruptcy court will hear the case. That ability to choose leads many firms whose business is located elsewhere to file for bankruptcy in Delaware’s bankruptcy court or in the Southern District of New York. Is this a bad thing? In two dimensions, it is. Since the choice of where to file is typically made by the debtor’s senior management and its professional advisers, these two have reason to file in a court whose decisions favor their interests—more discretion for managers and more protection from liability for directors. Sometimes a tilt toward their interests makes sense; sometimes not. Second, bankruptcy court rulings that narrow management’s discretion in sensible ways can push firms to choose to file elsewhere.

Senator Mitch McConnell, Republican of Kentucky and majority leader, is urging governors to defy President Obama by refusing to implement the administration’s global warming regulations. ... However, Ms. McCarthy’s agency is already preparing a one-size-fits-all compliance plan that would be imposed on states that do not create plans. Jody Freeman, director of Harvard University’s environmental law program and a former senior counselor to President Obama, said that option would be worse for states than simply preparing and submitting their own plans. “It would put states at a huge disadvantage if they choose not to file a plan,” she said. “It gives E.P.A. the option of implementing their own plan themselves, but the E.P.A. may not have the best plan for each state. States should be designing these plans themselves.”

A Justice Department report highlighting rampant bias in the Ferguson, Mo., police department and court system is likely to bring sweeping change to the city but may not help many of those affected sue for damages. ... Nevertheless, someone who was ticketed, or who just felt harassed, for being singled out for jaywalking or any other misdemeanor will find it difficult to prove widespread racial base was the cause. “A report that says [police] routinely do this sort of thing doesn’t quite cut it,” said Charles Fried, a professor at Harvard Law School. Even with all the statistics showing systemic bias, it proves little on a case-by-case basis. “A report like this is in an odd way irrelevant,” to individual civil cases, he said.

...The killings of unarmed black men by white police officers last summer — the fatal shooting of Michael Brown in Ferguson, Mo., and the chokehold death of Eric Garner, captured on video, in Staten Island, N.Y. — and the grand jury decisions against indictments in those cases sparked shock and outrage that led to massive protests across the country, including here at Harvard. ... At Harvard Law School (HLS), that question has been felt acutely, prompting an array of personal and public efforts, including panels, talks, conferences, seminars, in-class discussions, and faculty opinion pieces in recent months. In December, Dean Martha Minow convened a School-wide meeting for students, faculty, and staff to discuss the grand jury decisions. “The nation has witnessed lethal violence against unarmed individuals who are members of visible minorities, and there is a widespread perception that procedures meant to secure legal accountability aren’t working,” Minow told the Gazette in a statement last month about why these incidents have resonated so deeply at HLS. “The ideal of equal justice under law animates our law school and informs our daily work. Many of us here feel a special responsibility to push for change.”

An op-ed by Noah Feldman: Justice Ruth Bader Ginsburg opened the King v. Burwell argument Wednesday in the U.S. Supreme Court by asking whether the challengers are actually being injured by the Affordable Care Act and have standing to bring the case. Then something weird happened. Even though the lawyer for the challengers couldn’t definitively say his clients had standing, Solicitor General Don Verrilli seemed not to want the court to dismiss the challenge to Obamacare on that ground. Indeed, he bent over backward to say that silence from the challengers’ lawyer would suffice to infer that at least one of the four challengers was actually injured and that the case could proceed. What gives? Ordinarily, if you were representing the side with the most to lose in a case, and there was some meaningful chance of defeat, you’d jump at the opportunity to make the case go away. The lawyer seeks victory in the case before him. The grounds of the decision come second.

An op-ed by Noah Feldman: Three years ago, in the first Affordable Care Act case before the U.S. Supreme Court, Chief Justice John Roberts invented a legal doctrine that he memorably called the “gun to the head.” During oral arguments on Wednesday in the second ACA case, Justice Anthony Kennedy aimed the gun at Roberts. Roberts originally used the doctrine to gut the ACA’s extension of Medicare to unwilling states. Kennedy, by contrast, used it to try to pressure Roberts to save Obamacare by suggesting that Congress couldn’t lawfully deny tax subsidies to states that failed to create their own insurance exchanges.

The trial of alleged Boston Marathon bomber Dzhokhar Tsarnaev enters its second day today, but the defense has already made a curiously blunt admission: "It was him." One of the first things Tsarnaev's attorney Judy Clarke told the court Wednesday was that he was responsible for the "senseless, horrific, misguided acts." ...Charles Ogletree, Professor of Law at Harvard Law School, agreed."Their point is there's no question that what he did was wrong, being involved in the marathon bombing, but they're also saying that life imprisonment is enough punishment that would appropriate," he said. So why not just plead guilty to the 30 charges related to the bombing in the first place? First, Olgetree said the defense likely lobbied for a deal in which Tsarnaev pleaded guilty to avoid the death penalty, but the government didn't go for it -- potentially under pressure from the Obama administration, after Attorney General Eric Holder authorized the government to seek the death penalty last January. "So they don't think life imprisonment is justified, is not enough," Ogletree said.

When a faculty committee at Harvard Law School convened to craft a new set of sexual harassment procedures for the school last fall, they examined existing processes at peer institutions, according to Law professor John Coates, who chaired the committee. The final product of their work closely resembles systems in place at other schools across the Ivy League, particularly Columbia. The Law School’s new Title IX procedures, which break from Harvard’s central process for adjudicating sexual harassment complaints filed against students, were adopted by the Law faculty in December and will be soon implemented, according to administrators.

Wisconsin lawmakers on Thursday will begin a final debate on a measure supported by Republican Governor Scott Walker that would prohibit private-sector workers from being required to join a union or pay dues when working under union contracts...the law may make it harder for organized labor in Wisconsin to create new unions and, over time, it could reduce union membership as workers retire or move out of state. The pressure on union membership in turn weakens Democrats, who are typically backed by organized labor, Harvard Law School labor expert Benjamin Sachs said. "This law disables the political opposition," Sachs said.

“If we are so rich, why don’t we eat better food?” Asked by Harvard Business School Professor Gunnar Trumbull, this was one of many thought-provoking questions and intriguing concepts raised at a gathering that spotlighted the range of cross-disciplinary and collaborative food-related research being conducted across Harvard’s Schools...Jacob Gersen, Harvard Law School (HLS) professor and director of the Harvard Food Law Lab, discussed several questions around food labeling. Are labels misleading? Are they confusing or fraudulent? Do labels affect consumer behavior? And what should the law do in this area? Gersen is collaborating with government Professor Stephen Ansolabehere to use the national survey tool that Ansolabehere manages to better understand how consumers perceive food labels.

An op-ed by Noah Feldman. The U.S. Supreme Court gave Amazon.com and other direct marketing retailers a victory today with one hand -- then used the other hand to take it back. Formally, in Direct Marketing Association v. Brohl, the court unanimously reinstated a lawsuit brought by a direct retailer to block a Colorado law requiring them to notify the state about purchases that fall under Colorado’s sales or use tax. That much was a win for the direct shippers. But in a nonbinding message, the court strongly hinted that the appeals court should block the suit on different grounds than it used the first time -- which would give the victory back to Colorado.

On the Supreme Court, it’s always May 17, 1954—at least for any justice contemplating his or her legacy. That was the day the liberal Warren Court handed down a 9-0 ruling in Brown v. Board of Education, declaring that state-mandated segregation in schools was unconstitutional. The decision has come to be embraced as one of the most important and inspiring constitutional victories of our time...Harvard Law School’s Laurence Tribe—who was a lead counsel for the then-vice president in Bush v. Gore—says it’s often difficult for the public to separate the justices from the politics of the day, especially in cases that have significant political ramifications. “Ever since Bush v. Gore,” Tribe says, “the public has been inclined to assume that the justices are politicians in robes. Five-to-four decisions in most hotly contested cases look often enough as if they line up along political lines and justices, being aware of how the public sees them, can’t help recognizing this.”

...As the courtroom drama begins this week, important questions of justice and of healing hang in the balance...I ventured to Harvard Law School to discuss them with Prof. Nancy Gertner, a civil rights lawyer, who served 17 years as a U.S. district judge in Boston. She recalls that agonizing week of shock, first responders and memorial services. "The city rose up to shore each other up at every public event, at every opportunity and the stories of people helping one another are legion. So it was remarkable in that respect and what I hope is that legal system lives up to those standards, this extraordinary admirable result."

An op-ed by Chuka Umunna and Roberto Mangabeira Unger. Only by joining inclusion to innovation – and so raising productivity across the economy – can Britain assure its future. This is the vision set out in Labour’s plan for prosperity, published this week. Under the present government, average wages have fallen by £1,600 a year. The fiscal deficit remains stubbornly high at £91bn. These are serious problems in their own right. But the cost-of-living crisis and the persistence of the deficit are also symptoms of a broader failure to raise productivity. In leading sectors such as aerospace, finance, pharmaceuticals and the creative industries, Britain is world class. Across the economy overall, UK output per hour fell to 17 per cent below the rest of the G7 in 2013, the largest gap since 1991. It takes British workers until the end of Friday to produce what a German or American worker have done by Thursday. Building on existing areas of strength, Britain must back sectors where it already enjoys an advantage.

Congressman Paul Ryan and other influential Republicans sketched out plans Tuesday for how they'd deal with a Supreme Court ruling that cancels Obamacare's subsidies in many of the states, saying they could use such a decision to create a "bridge" to end the health law for good...Matthew Lawrence, an academic fellow at Harvard Law School who teachers a seminar on Obamacare, said Republicans may have a persuasive argument in that a law is easy to fix. "The more probable a congressional fix, the more compelling the argument in favor of strict adherence to the words of the statute becomes," Mr. Lawrence said.

Harvard Law School students offered strategies and tips for navigating discussions about rape law in criminal law courses during a workshop event Tuesday. The discussion, hosted by the Women’s Law Association each year as criminal law courses begin covering rape and sexual assault, also explored what they described as myths associated with rape. Unlike most other criminal law subjects, sexual assault is an issue that law students are more likely to have personally encountered and should be approached with more sensitivity, Lana R. Birbrair, a third-year law student who led the event, said. “Whatever your views are of what rape law ought to be, the reason that we’re here is because it can be really hard to talk about it,” she said.

Heidi Gardner, a law lecturer at Harvard, has studied six global firms (including three law firms) and the way that their partners and others collaborate. She concluded that 'the more disciplines that are involved in a client engagement, the greater the annual average revenue the client generates'.

An op-ed by Cass Sunstein. The growing national concern about economic inequality raises many questions. One has to do with demographic groups. Are some doing better than others? If so, exactly why? A new study from the Federal Reserve Bank of St. Louis shows that as most people assume, education is a key both to mobility and to the accumulation of wealth. But another important factor is economic decision-making. And when it comes to financial prudence, whites and Asian-Americans appear to be doing a lot better than Hispanics and African-Americans.

...Most personal-injury cases settle out of court, so it is impossible to document how often brain scans for pain are being used in civil law. But the practice seems to be getting more common, at least in the United States, where health care is not covered by the government and personal-injury cases are frequent. Several companies have cropped up, and at least one university has offered the service...“A person cannot be found disabled based on pain unless they can point to a specific cause,” says Amanda Pustilnik, a legal expert at Harvard Law School in Cambridge, Massachusetts...But some scientists and ethicists are concerned about where the increasing acceptance of pain imaging might lead. Pustilnik worries that it could become a sort of pass–fail test, not just forcing litigants to provide proof of their pain, but potentially making it a requirement to get prescription medications or insurance coverage. She is heading a working group at Harvard that is developing a list of ethical and scientific standards for the technologies before they become widespread.

Following the Federal Communication Commission's decision to classify the internet as a telecommunications service, thereby allowing the government to regulate it as a utility, Harvard professors praised the ruling considered a victory for net neutrality proponents....Beyond the decision’s positive impact on consumers, faculty members marked the political significance that the decision came into fruition. Yochai Benkler, Berkman Center faculty co-director and Law School professor, acknowledged that successful grassroots movements put pressure on legislators. “[The ruling is] a moment that can give us hope that even in the presence of enormous amounts of money in politics and one of the worst revolving door environments in Washington, people can still organize themselves to force politicians to do the right thing,” Benkler wrote in an email.

Last year, Apple and Facebook both announced that they would cover egg freezing as a benefit for female employees. If you’re a woman who is considering postponing parenthood, this perk might be enticing, but the majority of parents want something different—something a lot less advanced and a lot less expensive. They want flexibility...As law firms—also notorious for demanding long hours of its workers—start considering covering this benefit, Harvard Law School Professor Glenn Cohen questioned the message the new benefit is sending. "Would potential female associates welcome this option knowing that they can work hard early on and still reproduce, if they so desire, later on? Or would they take this as a signal that the firm thinks that working there as an associate and pregnancy are incompatible?"