Media Mentions

In a growing battle of “he said, she said,” Yale University Professor Jonathan Macey defends Harvard University, calling allegations from Securities and Exchange Commissioner (SEC) Dan Gallagher and Stanford Professor Joseph Grundfest “flip-flops.” Macey took to the Harvard Law School Forum on Corporate Governance to publicly flog Gallagher in particular, while defending the Harvard Shareholder Rights Program (SRP), which advocates to eliminate staggered board of director terms that impede acquisitions. A staggered election makes it difficult for an acquiring company to elect enough new board members to immediately force change.

...The Conviction Review Unit has been the most profound reform that Thompson has implemented in his year as district attorney...In January, 2014, Thompson began the process of recruiting Ron Sullivan to assist in designing his new unit...When I asked Sullivan to explain what it means to “do justice”—a phrase several people in the C.R.U. use—he said, “The person who’s the best advocate can prevail with a conviction even if the evidence doesn’t warrant it. Under a justice regime, the notion here is that we’re looking for the correct result, the right result. That’s what prosecutors are duty-bound to do in the first instance.”

An op-ed by Noah Feldman. Can Dzhokhar Tsarnaev, the surviving Boston Marathon bombing suspect, get a fair trial in the Hub? It’s a profound question that the U.S. Court of Appeals for the 1st Circuit was asked to decide by today, when jury selection begins. But it’s also a question the Framers would have found incomprehensible. Far from providing for a change of venue in high-profile cases, they guaranteed that the accused deserved a trial “by an impartial jury of the State and district wherein the crime shall have been committed.” So what is the origin of the modern idea that the accused can seek to be tried elsewhere? The answer lies in England, and particularly in the lurid murder trial of William Palmer, the so-called prince of poisoners, which took place in 1855, fully 66 years after the Sixth Amendment was ratified.

An op-ed by Cass Sunstein. Does your vote depend on which news channel you watch? If you are a regular viewer of Fox News, will you become more likely to vote Republican? Until recently, it has been impossible to answer that question empirically. Sure, Republicans tend to favor Fox News and Democrats tend to prefer MSNBC. But if Fox viewers are more likely to vote Republican, it might well be because of the conservative views that led them to Fox in the first place. An ingenious new study, by Gregory J. Martin and Ali Yurukoglu of Stanford University, explores whether people’s voting behavior really is influenced by what they see on cable news.

An op-ed by Bruce Schneier. When you’re attacked by a missile, you can follow its trajectory back to where it was launched from. When you’re attacked in cyberspace, figuring out who did it is much harder. The reality of international aggression in cyberspace will change how we approach defense. Many of us in the computer-security field are skeptical of the U.S. government’s claim that it has positively identified North Korea as the perpetrator of the massive Sony hack in November 2014. The FBI’s evidence is circumstantial and not very convincing. The attackers never mentioned the movie that became the centerpiece of the hack until the press did. More likely, the culprits are random hackers who have loved to hate Sony for over a decade, or possibly a disgruntled insider.

...All this seems to help explain the putative difference between America and its European peers. But does this difference really exist? According to a study by Mark Ramseyer of Harvard Law School and Eric B. Rasmusen at Indiana University's Kelley School of Business, "Americans do not file an unusually high number of law suits. They do not employ large numbers of judges or lawyers. They do not pay more than people in comparable countries to enforce contracts. And they do not pay unusually high prices for insurance against routine torts". Indeed, the country's approach to most legal cases is unexceptional, the paper's authors argue. But occasionally there are cases in which someone or a group of people are awarded an unholy sum, and this is where the country and its courts get its grim reputation. These cases may be surprisingly rare, but the very threat of them spurs all sorts of meddlesome and unproductive efforts at protection.

A normally academic question about corporate governance has erupted into a nasty, often personal battle among elite professors, regulators and white-shoe lawyers that has raised the suggestion of securities fraud on one side and abuse of authority on the other. At the heart of the dispute is an academic paper written last month by Daniel M. Gallagher, a member of the Securities and Exchange Commission, and Joseph A. Grundfest, a professor at Stanford Law School and himself a former S.E.C. commissioner, that was titled “Did Harvard Violate Federal Securities Law? The Campaign Against Classified Boards of Directors.” The paper took aim at Lucian A. Bebchuk, a Harvard Law School professor who has long researched corporate governance issues and has been an outspoken advocate for increased democracy in corporate America’s boardrooms...“The paper’s spurious allegations are unworthy of a sitting S.E.C. commissioner and a former commissioner,” Mr. Bebchuk, who learned about the paper the night before it was published, said in an email. “I was also surprised that the authors chose not give me an opportunity to correct the paper’s reckless factual and legal errors.”

The man charged with the terror attack near the finish line of the 2013 Boston Marathon goes on trial Monday in a federal courthouse less than two miles from where two bombs, concealed in backpacks, exploded with devastating force...Nancy Gertner argues that legal appeals would take years and that executions are on hold because of uncertainty about lethal drugs. "He's going to be on death row for decades. There will be multiple appeals," Gertner said. "Looking at it realistically, he's going to die in prison one way or the other if he's convicted. So this really is a ceremony that doesn't make sense." Under such a scenario, the judge would conduct a sentencing hearing, which Gertner said would give those most affected by the bombings a chance to speak: "It would enable the victims to have a platform to talk about the extraordinary pain that they endured, which is a different platform than would be at a trial."

An op-ed by Cass Sunstein. It’s nearly the new year -- a time for resolving to eat less, exercise more, work harder, give more, get your financial situation in order, make a long-delayed life change. Why do we make such resolutions? The simplest explanation is that our highest aspirations for ourselves often conflict with our daily desires. Resolutions are designed to give our aspirations the upper hand. In the terms of modern social science, human beings engage in fast, automatic, short-term thinking, and also in slower, more deliberative, long-term thinking. When we make New Year’s resolutions, we're taking advantage of a “temporal landmark” that helps us to strengthen our best intentions.

There are two things about 2015 of which one can be reasonably certain: there will be a general election in May and it’s unlikely to produce an overall majority for either of the two big parties...Which brings us to social media and the question of whether the 2015 general election could be the first one in which the outcome is affected by what goes on there....The Harvard law professor Jonathan Zittrain summarised the findings thus: “Overall, users notified of their friends’ voting were 0.39% more likely to vote than those in the control group, and any resulting decisions to cast a ballot also appeared to ripple to the behaviour of close Facebook friends, even if those people hadn’t received the original message. That small increase in turnout rates amounted to a lot of new votes.

Mark J. Roe, who teaches corporate law and corporate bankruptcy at the Harvard Law School, has some free advice for South Dakota. If the state wants to become a haven for business incorporating, it'll probably have to develop a business court like Delaware's and also find and exploit one of Delaware's weaknesses. Even if those efforts are undertaken, rivaling Delaware for business incorporating will be tough. "It's a hard thing to do nowadays, since Delaware has sufficiently cornered the market," Roe said.

An op-ed by Cass Sunstein. A lot of conspiracy theorists are neither ignorant nor ill-educated. On the contrary, they can be spectacularly well-informed, at least on the topics that interest them. (Try arguing with one; they probably know a lot more than you do.) Why, then, do they accept theories that are patently inconsistent with reality? One reason involves their suspicious and in some cases paranoid natures. Want to know whether your neighbors will accept a particular conspiracy theory? Just ask them what they think about other conspiracy theories. Those who insist that the Apollo moon landings were faked are more likely to believe that the United States caused the 9/11 attacks.

On Tuesday, the Department of Education said Harvard Law School’s current and past harassment policies and procedures didn’t comply with Title IX requirements, which bar gender discrimination at schools receiving federal financial aid. The announcement marked the resolution a probe by the department’s Office for Civil Rights, which is investigating campus sexual-assault issues at dozens of schools, including Harvard’s undergraduate college. While Harvard pledged to make changes, Elizabeth Bartholet, a veteran law professor at Harvard Law who teaches civil rights and family law, called the federal government’s recent campaign against colleges “madness” and said history would prove it wrong on the law. (Prof. Bartholet has been an outspoken opponent of policies that she and other law professors say strip students accused of sexual assault of their due-process rights.)

Harvard Law School didn’t comply with federal regulations governing response to sexual harassment at colleges and is taking steps to address the problem, the U.S. Department of Education’s Office for Civil Rights announced Tuesday as it wrapped up its investigation of the school...The complaint was first brought to the Department of Education four years ago, according to a statement sent by Harvard Law Dean Martha Minow to the school community Tuesday...“We are deeply committed to fostering a campus climate that is free of sexual harassment and sexual violence,” Ms. Minow said in the emailed message, adding that the school’s administration will conduct surveys and host discussions about eliminating sexual misconduct.

Glenn Cohen, a Harvard Law professor who wrote about the blood donor rule in JAMA: the Journal of the American Medical Association, sees a one-year deferral as an interim step, but thinks it's not any more evidence-based than the current lifetime ban. "There's no medical reason to think that a one-year deferral makes a difference as opposed to a month-long deferral when the virus would show up in blood," he explained. Cohen says these long deferrals on gay and bi men are a hangover from the early days of HIV, when the disease was known as GRID, or "gay-related immune deficiency." But maybe an evidence-based blood policy is too much to ask for when fears about gay men's blood still abound. "It's not just about the safety of the blood supply," Cohen said, "it's about the perceived safety of the blood supply."

The Food and Drug Administration announced on Tuesday that it would scrap a decades-old lifetime prohibition on blood donation by gay and bisexual men, a change that experts said was long overdue and could lift the annual blood supply by as much as 4 percent...“This is a major victory for gay civil rights,” said I. Glenn Cohen, a law professor at Harvard University who specializes in bioethics and health. “We’re leaving behind the old view that every gay man is a potential infection source." He said, however, that the policy was “still not rational enough."

An op-ed by Laurence Tribe. As a law professor, I taught the nation’s first environmental law class 45 years ago. As a lawyer, I have supported countless environmental causes. And as a father and grandfather, I want to leave the Earth in better shape than when I arrived. Nonetheless, I recently filed comments with the Environmental Protection Agency urging the agency to withdraw its Clean Power Plan, a regulatory proposal to reduce carbon emissions from the nation’s electric power plants. In my view, coping with climate change is a vital end, but it does not justify using unconstitutional means.

A letter by Nancy Gertner. Judge Jed S. Rakoff’s article “Why Innocent People Plead Guilty” [NYR, November 20, 2014] is spot on, but doesn’t go far enough. True, we have a federal plea system, not a trial system. True, to call the process “plea bargaining” is a cruel misnomer. There is nothing here remotely like fair bargaining between equal parties with equal resources or equal information. The prosecutors’ power—as Judge Rakoff describes—is extraordinary, far surpassing that of prosecutors of years past, and in most cases, far surpassing the judge’s. Judge John Gleeson, a federal judge of the Eastern District of New York, made this clear during a case involving a charge for which there is a mandatory minimum sentence. As a result of the prosecutor’s decision to charge the defendant with an offense for which there is a mandatory minimum sentence, no judging was going on about the sentence. The prosecutor sentenced the defendant, not the judge, with far less transparency and no appeal.

It will be a long time, if ever, before the public sees Sony Pictures Entertainment’s movie “The Interview.” Instead, we’ve seen a preview of a new kind of warfare. Hackers allegedly backed by the impoverished, backward nation of North Korea have terrorized one of the world’s richest corporations into halting the release of the film, a comedy about a fictional plot to assassinate North Korean dictator Kim Jong-Un. ...But Andy Sellars, a First Amendment fellow at the Berkman Center for Internet & Society at Harvard University, doubts we’ll see a similar incident anytime soon. “To me, it feels much more like a one-off,” Sellars said. “To me, I think it’s an exceptional case under exceptional circumstances.”

An op-ed by Noah Feldman. One part of the U.S. Constitution stood out above all others in 2014: executive power. Under the presidency of George W. Bush, executive power reached what many considered its apogee, and the topic got a lot of press. During the first five years of the Barack Obama administration, the subject seemed to wane in importance, surfacing occasionally on the topic of drone strikes, and then receding. Now it's back, on issues such as the war against Islamic State, immigration reform and diplomatic relations with Cuba. And we can expect much more concern about the use of executive power during the rest of Obama's presidency, as the lame duck becomes the executive duck in charge.