Media Mentions

An op-ed by Laurence H. Tribe. The Supreme Court is about to hear a case — King v. Burwell — that again threatens to undermine the Affordable Care Act and strip health insurance from millions of Americans. The King challenge, which focuses on a handful of words in that famously long piece of legislation, is a clever one. But it’s too clever by half. Finding for the challengers would require taking a few words in the ACA out of their proper context, ignoring the law’s structure and purpose, and even jettisoning the conservative justices’ own pro-states’ rights views.

Administrators from Northwestern University School of Law will help to establish the first U.S.-style law school in the Middle East. They have agreed to advise Hamad bin Khalifa University in creating a three-year juris doctor program in Doha, Qatar....The university first collaborated with Harvard Law School’s Institute for Global Law & Policy in 2012 to help develop the new law school. Harvard still is involved, institute executive director David Kennedy said, and is happy to see Northwestern join the effort. The institute stages an annual research conference in Doha. “Each year, we bring about 100 young colleagues in the law and policy field from around the world for an intensive week of collaboration and professional development,” he said. “We anticipate that cooperation will continue. I hope this effort, and our other ongoing collaborations with the Qatar Foundation, will contribute to the academic excellence and visibility of their new law school as it gets underway.”

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.

An op-ed by Noah Feldman. To the Founding Fathers, democracy was a dirty word. What James Madison and his colleagues wanted was a republic -- defined in terms of representative government, not government directly by the public. “We the People” ordained the Constitution -- but we the people were never supposed to govern directly, or heavens knew what trouble we might get into. The U.S. Supreme Court on Monday will consider the question of whether to take the Framers’ anti-democratic instincts seriously. At issue is how Arizona shapes the districts for elections to Congress.

An op-ed by Noah Feldman. I caution my students against seeing the U.S. Supreme Court's conservative justices as antiquarians, eager to take our jurisprudence back to the 18th or 19th centuries. Whatever guise originalism wears, it’s an evolving and, in many ways, forward-looking way of seeing the world. But every so often there's an opinion that conforms to the stereotype. Justice Samuel Alito issued such an opinion Wednesday in an otherwise obscure case about -- not joking -- teeth-whitening in North Carolina.

An op-ed by Glenn Hubbard and Hal Scott. Dodd-Frank restrictions on the Federal Reserve’s powers to act as lender-of-last-resort, coupled with restrictions on federal guarantees for bank deposits and money-market funds, pose a threat to U.S. and global financial stability...The Dodd-Frank Act (July 2010) pulled back the Fed’s lender-of-last-resort powers for non-banks. They can now be exercised only with the approval of the Treasury secretary, and the Fed cannot lend to a single institution as it did with AIG . It must now only lend under a broad program, and must also meet heightened collateral requirements. In addition, the FDIC cannot expand guarantees to bank depositors without congressional approval, and the Treasury can’t do the same to money-market funds without new legislative authority. These changes could make it difficult for the Fed and other regulatory bodies to act effectively in the next crisis.

U.S. Supreme Court Chief Justice John Roberts faced a conservative backlash after casting a decisive vote to save ObamaCare in 2012. Now he must weigh in on the law once again. The case of King v. Burwell, set for arguments before the Court on Wednesday, threatens to gut the law by invalidating subsidies to help millions of people buy insurance in the roughly three-dozen states relying on the federally run marketplace...“When interpreting statutory text, Roberts isn’t as fixated on isolated words and phrases as some Justices sometimes are,” Laurence Tribe, a Harvard law professor who taught Roberts as a student, wrote in an email. “He pays close attention to the context in which phrases appear and to a statute’s overall purpose. That became especially clear when he joined Justice Ginsburg’s plurality opinion on Feb. 25 holding that fish didn’t count as ‘tangible objects.’”

The conservative think tanks behind King v. Burwell aren't the only ones giving a close reading to the Affordable Care Act's text. The Obama administration says it has no contingency plan should the Supreme Court bar health insurance subsidies in states that failed to set up their own exchanges. If true, the president's legal team should take a look at an article published in early January by a Harvard law student, whose own close reading of the law says there is a perfectly legal and relatively easy workaround. Writing in the student-run Harvard Journal on Legislation, Freilich Jones, JD16, says a section buried deep in the law gives HHS Secretary Sylvia Burwell the authority to set up an exchange for a state either “directly or through an agreement with a not-for-profit entity” (emphasis added by Jones). Elsewhere in the law, exchanges are defined as “a government agency or nonprofit entity that is established by a state.”

A colleague who headed an overseas editorial bureau of the Financial Times once called me to ask my advice: did I think he should devote more time to managing the journalists in his team or to writing front page scoops? Easy, I replied. Unless the bureau was so dysfunctional that its output dried up, he should concentrate on news gathering. A similar answer still applies to a whole range of professions, from consulting to law to accounting, where successful lone wolves are celebrated, workhorses tolerated and managers quietly denigrated...Collaboration, by definition, makes for poor drama. But it does yield excellent results, according to a study of a range of professions, by Heidi Gardner of Harvard Law School. Summarising the work in the latest Harvard Business Review, she writes that when specialists work together across their areas of expertise, their employers “earn higher margins, inspire greater client loyalty and gain a competitive edge”.

An op-ed by Noah Feldman. The congressional battle over net neutrality may be over, and the Federal Communications Commission has voted to regulate the Internet as a public utility. But that just means the fight over net neutrality will likely move back to the courts. And this time, expect the First Amendment to be front and center. Thus far, legal battles surrounding net neutrality have focused on the FCC’s authority to regulate. Now that the political process has established a statutory responsibility, opponents of net neutrality -- primarily Internet service providers -- need a constitutional argument to ask the courts to reverse the result.

Mauritius has long played a unique role in international finance...The shift toward private banking may present challenges, says Stephen Shay, a professor of practice at Harvard Law School and former deputy assistant secretary for international tax affairs at the U.S. Department of the Treasury. "With such a robust financial intermediary industry already, the decision to expand into a more heavily regulated space is not without risks."

About once a week Robert Sebastian’s phone rings and a frantic caller is on the other end, desperately seeking the answer to a question. Nearly nine out of 10 times, it’s about the transboundary agreement between Mexico and the U.S. concerning oil and gas operations in the Gulf of Mexico...“The first thing that the treaty stipulates is there is an obligation to report from both sides and share information,” said Guillermo J. Garcia Sanchez, [SJD candidate] an affiliated scholar at the University of Houston’s Center for U.S. and Mexican Law. This includes exploration or development plans, the filing of seismic and drilling permits and upon determining the likely existence of a transboundary reservoir. “They have to start negotiating a unitization agreement. This means that the field has to be treated as a unit. Both sides can cross the border technically and do exploration of wells.”

An op-ed by Eli Y. Adashi, Hans Gao, and I. Glenn Cohen. On January 20, 2015, Michael J. Davidson, MD, a cardiothoracic surgeon, was fatally shot on the premises of the Brigham and Women’s Hospital in Boston, Massachusetts. In the year leading up to this tragic day, a total of 14 active shooter incidents occurred in hospitals throughout the United States, leaving 15 fatalities in their wake. This reality and its potential amplification by copycats has reignited the debate over the adequacy of current and future hospital security arrangements. In this Viewpoint, we discuss the evolving frequency of hospital-based active shooter incidents, the relevant legal framework, and the role of hospitals and physicians in countering this threat.

The tech industry and activists hailed yesterday’s long-awaited Federal Communications Commission vote on net neutrality rules, saying startups and other innovative companies no longer have to fear that they might be required to ante up to compete with more established businesses on the Internet. “If the FCC had not taken this step, then the Internet was headed down a path in which it becomes unrecognizable ... an Internet in which the people who provide access to the Internet make decisions based on their commercial interest,” said David Weinberger, a senior researcher at the Harvard Berkman Center for Internet and Society. “The strength of the Internet has always been that it’s not designed for any particular service — users get to decide what matters to them, what they think the Internet is for. The access providers were turning the Internet into a type of cable TV.”

An article by Heidi K. Gardner [distinguished fellow at the Program on the Legal Profession]. After spending vast sums to build and buy stables of thoroughbreds and extend their geographic reach and practice breadth, today's law firms have come to a sobering conclusion: Accumulating stars is no longer enough. All that talent cannot be harnessed for competitive advantage or profit growth unless they find a way to get partners to collaborate. Specifically, lawyers with highly specialized expertise must work across silos to tackle clients' most sophisticated problems. When firms get collaboration right—that is, when they do complex work for clients that spans practices and offices within the firm—they earn higher margins, inspire greater client loyalty, gain access to more lucrative clients, and attract more cutting-edge work. Sharing work actually boosts the practices of individual partners, too—even rainmakers.

An op-ed by Noah Feldman. What does a red grouper have to do with the Affordable Care Act? Maybe a lot. The U.S. Supreme Court ruled Wednesday on a quirky case in which it had to decide whether the fish counted as a “tangible object” under the Sarbanes-Oxley Act. The decision broke down in a particularly strange way across the usual liberal-conservative lines. Reading the tea leaves -- or maybe the fish entrails -- it's possible to get some clues about how the court will interpret the ACA in the major case it will hear March 4...the dissent in the case was written not by Justice Antonin Scalia, the king of textualists, but by Justice Elena Kagan, the outlying liberal. In her punchy dissent that could almost be called Scalian, she cited the Dr. Seuss classic, “One Fish, Two Fish, Red Fish, Blue Fish” to show that a fish was indeed a tangible object. And she dismissed Alito’s use of an old canon involving a “game of Mad Libs.”

An op-ed by Noah Feldman. Could the U.S. Supreme Court allow the Affordable Care Act to survive its latest legal challenge because the plaintiffs in the case before it haven’t been injured by the law? It’s possible. The more probable result is still that the court will reach a decision on the merits of the case and eliminate the insurance subsidies necessary to make the law work in many states. But if Chief Justice John Roberts wants to avoid the criticism that the Roberts court is the most activist conservative court in history, he could plausibly use the standing argument to avoid a decision -- especially if he could get cover from the archconservative Justice Antonin Scalia, who more or less invented the constitutional doctrine of standing in a 1992 case argued successfully by -- you guessed it -- then-Deputy Solicitor General John Roberts.

With their “listening tours,” “town hall meetings” and “community dinners,” politicians make a grand show of seeking input from constituents. But when it comes to shaping public policy, “the average voter’s views do not matter,” Harvard Law Prof. Lawrence Lessig said Monday night at the Roger Williams University School of Law. Lessig — author of “Republic, Lost: How Money Corrupts Congress and a Plan to Stop It” — wasn’t offering a casual observation. He was summarizing what he called “the largest empirical study of actual policy decision by our government, maybe in the history of political science.” In 2014, Princeton’s Martin Giles and Northwestern’s Benjamin I. Page found that “when the preferences of economic elites and the stands of organized interest groups are controlled for, the preferences of the average American appear to have only a miniscule, near-zero, statistically non-significant impact on public policy.”

Harvard Law School Professor Charles Ogletree is asking outgoing U.S. Attorney General Eric Holder to spare the life of alleged Boston Marathon Bomber Dzhokhar Tsarnaev. Ogletree is scheduled to meet with Holder in Washington on Friday. Attorney General Eric Holder has already called for a moratorium on the death penalty pending the outcome of a Supreme Court ruling on the use of lethal injection drugs in Oklahoma. Ogletree says he is asking the nation’s top law enforcement official to take it a step further and make it permanent.

The case for strong government rules to protect an open Internet rests in large part on a perceived market failure — the lack of competition for high-speed Internet service into American homes...The F.C.C.’s approach makes sense, proponents say, because for genuine high-speed Internet service most American households now have only one choice, and most often it is a cable company. “For the moment, cable has won the high-speed Internet market,” said Susan Crawford, co-director of the Berkman Center for Internet and Society at Harvard Law School, and a former adviser to the Obama administration.

If any Republican former state attorney general from the South announced his support for LGBT advocates’ side of a political issue, the move would make news. When Mike Bowers decided to do so, it was more than that. For 17 years, Bowers’ name was synonymous with the legal inferiority of gay people. Bowers v. Hardwick, the 1986 Supreme Court decision allowing state bans on “homosexual sodomy,” was only before the Supreme Court because Bowers, then the attorney general of Georgia, asked the justices to hear the case and uphold the constitutionality of the ban. Nearly 30 years later, Bowers says he’s “changed as society has changed.”...The man who represented Michael Hardwick before the Supreme Court, Harvard Law School professor Laurence Tribe, is taking in this week’s developments with a similar gracious-but-not-ignoring-the-past approach to Bowers. “I’ve been delighted to watch Mr. Bowers evolve,” Tribe told BuzzFeed News. “Better late than never!”