Media Mentions

A book excerpt by Lani Guinier...Call it what you will, the SAT still promises something it can’t deliver: a way to measure merit. Yet the increasing reliance on standardized test scores as a status placement in society has created something alien to the very values of our democratic society yet seemingly with a life of its own: a testocracy. Allow me to be clear: I’m not talking about all tests. I’m a professor; I believe in methods of evaluation. But I know, too, that certain methods are fairer and more valuable than others.

An op-ed by Noah Feldman. Justice Antonin Scalia was missing from the bench this morning when the U.S. Supreme Court handed down two statutory interpretation cases -- apparently he was stuck in traffic. But even in his physical absence, Scalia’s presence was looming. It’s not only that he wrote both of the opinions, each decided by a unanimous court. It's that both opinions reflect his approach of “textualism” -- a form of literal legal interpretation that has become his most distinctive contribution to U.S. law. And that in turn provides a strong indication that the Supreme Court will use the same technique later this year to reach a ruling that effectively puts an end to the Affordable Care Act.

An op-ed by Noah Feldman. What’s free speech for? There’s probably no more fascinating and important question in modern American public life -- or so says this professor of the First Amendment. On Monday, the U.S. Supreme Court took a stab at it in a case about directional signs guiding worshippers to the Good News Community Church of Gilbert, Arizona. The oral argument showed how sometimes the most trivial laws can generate the most fundamental constitutional issues. The case, Reed v. Town of Gilbert, involves a municipal ordinance that regulates signs put up by individuals, businesses or other organizations, such as churches.

The presidential panel formed in response to heightened tensions between the public and the law enforcement community held its first public meeting on Tuesday, drawing suggestions for legislative fixes, funding for body cameras, and reforms to increase public trust of police...Harvard Law School Professor Charles Ogletree told the task force he wanted to see community policing instead of militarized police. "Police officers should be not just officers, they also need to be social workers," he said, and play a role in the community to make a difference in people's life.

...This is the second year of the N.H. Rebellion, with its 20 or so diehards who will walk for 10 days the whole route, while others join in for a portion. Each year it has begun in Dixville Notch, but this year there are three other routes from Portsmouth, Keene and Nashua, all converging on Concord on Jan. 21. They walk with Harvard professor and political activist Lawrence Lessig in memory of Aaron Swartz and Doris Haddock and to bring awareness and momentum to what they call the most pressing issue in American politics. As long as the most wealthy Americans can influence elections, all other activism suffers, they said.

An op-ed by Cass Sunstein. Here's a quiz. Why did President Barack Obama take steps to normalize relations with Cuba? (a) To polish his legacy. (b) To improve the position of the Democratic Party for the 2016 election. (c) To weaken the Cuba lobby. (d) To show leadership. (e) None of the above. If you answered anything other than (e), you're wrong.

An article by Cass Sunstein and Reid Hastie. Why do governments enact, and stick with, policies that are plainly failing? Why do companies adopt foolish strategies that produce massive losses? Why do labor unions, law firms, and religious organizations make self-destructive errors? Over the past three decades, behavioral scientists have made progress in understanding why individuals make unwise choices and why groups do not correct, and frequently even aggravate, the mistakes of their members. The most common and devastating failure of the group process is incomplete information-sharing.

While a student at Harvard Law School, Eva Hibnick took business and marketing electives at Harvard Business School and MIT. However, it wasn’t until a couple of years later, when she left a big law firm to join a startup, that she realized how important personal branding, networking and marketing were...[Silverstein] says she and her friend Heidi Gardner, (an assistant professor who just shifted over from Harvard Business School to Harvard Law School and teaches law firm economics, strategy, marketing and collaboration), are co-authoring the first textbook on law firm business management because “Heidi and I are convinced (these classes) will be part of every law school program in the near future.”...n addition to transitioning Gardner over to the law school, Harvard Law has made other advancements in this area recently and has made “a giant leap from where Harvard Law School was 20 years ago,” says Scott Westfahl, a professor of practice who joined Harvard Law just over a year ago.

When Rajesh De, the chief lawyer for the National Security Agency, needs a special court order so the agency can spy on potential security threats, he turns to John P. Carlin and his team of attorneys in the Justice Department to advocate for the new authority. But De doesn’t always get what he wants from his former Harvard Law School roommate. In a twist of fate they could hardly have predicted a decade and a half ago in Cambridge, they along with another friend from the Class of 1999 are now among the most influential legal minds in the nation’s war on terrorism. Their mission is to strike one of the most weighty — and controversial — balancing acts of the Obama administration: fighting terrorism while protecting the civil liberties of Americans...Another key partner is their other close friend and former classmate, Adam Szubin, the Treasury Department official responsible for cutting off the flow of money to terrorist groups.

An op-ed by Noah Feldman. Is New York state’s ban on “tiger selfies” the goofiest law of the year? It might be absurd for the state to pass a law banning the taking of photographs with jungle cats, but there’s nothing in the U.S. Constitution that bans absurd laws. The practical question -- at least if you’re a New York stud who wants a tiger selfie for your Tinder photo -- is whether the law is constitutional. If it is, you might have to travel to New Jersey (gasp) for your close encounter of the feline kind. And if you aren’t on the edge of your seat already, don’t despair. Before you conclude that this is the sorriest legal column you’ve ever read, I promise there are deep free speech issues in the underlying constitutional problem. Really. And grrrr.

Jury selection is underway in Fall River in the case of Aaron Hernandez, who's charged in the 2013 murder of Odin Lloyd...Harvard Law School Professor Ronald Sullivan Jr. says that this pre-trial publicity cannot be avoided, given the recent advancements in information technology. But he says the jurors do not have to be unaware of the case in order to render an impartial verdict. "The juror does not have to be wholly ignorant of... the facts of the case. That's almost impossible. In certain cases, neither side probably wants a juror who's so disconnected from the world that they've heard absolutely nothing about these huge cases. But rather, the question is -- not withstanding that you've heard something about the case -- 'can you nonetheless follow the judge's instructions and render an impartial verdict?'" said Sullivan.

The “testocracy” is the term that I use to describe the overemphasis by many institutions of higher education on the applicant’s ability to do well on an SAT or an LSAT or some other test that is presumed to predict performance in college. What these tests really tell you about is the financial stability of your family. The focus of higher education has become extremely competitive as opposed to courageously collaborative. The testocracy doesn’t take into account the important roles that higher education plays or attempts to play in a democracy. Those roles are a form of teaching leadership, of teaching scholarship, and producing citizens who are going to contribute not just to their own family but to the larger society.

Fatou Bensouda, chief prosecutor for the International Criminal Court, is about to face her toughest trial yet: to demonstrate that the court has enough muscle to tackle the gravest human rights cases, even if it means confronting the world’s most powerful countries...Both raise novel legal issues, international criminal lawyers say, and the prosecutor is likely to move cautiously — “not because they are politically sensitive,” wrote Alex Whiting, one of her former colleagues at the I.C.C., “but because critical support for its work on these cases is far from assured.”...According to Mr. Whiting, who now teaches at Harvard Law School: “The strong reactions to the Palestinian move to join the court show something else: that the I.C.C. still matters. A lot.”

As a co-founder of Creative Commons, law professor Lawrence Lessig helped transform intellectual property laws for the digital age. Now he's focusing on reforming campaign finance, which he calls "the moral question of our age." Last year, Lessig created his own crowd-funded super PAC and helped lead a 185-mile march through New Hampshire to raise awareness of big money in politics. We'll talk to him about his career and latest crusade.

It’s been a little over two weeks since the U.S. government blamed North Korea for the cyber-attack against Sony Pictures, and Cybersecurity firms and hackers have continued to express doubts as to the legitimacy of these claims. Two cyber security firms, Norse Corporation and Cloud Flare, conducted independent investigations into the hack. Their results are in stark contrast to the FBI’s claim that Pyongyang carried out the hack....After examining the malware used to infiltrate the studio, the FBI said it found similarities between that software and software used in previous cyber-attacks carried out by North Korea. But Jack Goldsmith, a Harvard Law Professor, who serves on the Hoover Institution Task Force on National Security and Law, is unconvinced.

An Op-Ed by Noah Feldman. A sitting member of the Securities and Exchange Commission co-writes an article accusing Harvard University of violating securities laws -- because, the article claims, a professor’s biased research has been used to argue for eliminating staggered corporate board terms....And for the moment, let’s leave aside the content of their argument, namely that the Shareholder Rights Project, led by my Harvard Law School colleague Lucian A. Bebchuk....

It’s been a bumpy ride for stocks in the first full week of 2015. And if you’re one of the many investors who vowed to be smarter with your investments in the New Year, you might be a little rattled...Cass Sunstein, a professor at Harvard Law School who studies behavioral economics, has some advice: Be informed but don’t follow the pack.

The Obama administration's extraordinary decision to point fingers at North Korea over the hacking of Sony Pictures Entertainment Inc. could lead to a courtroom spectacle if charges are ultimately filed against someone without ties to the isolated country, such as a disgruntled employee or an unrelated hacker...."The temptation to engage in the kind of global politics surrounding this rogue nation is probably just too great to resist," Harvard Law School professor Lawrence Lessig said.

The U.N. has accepted a request by observer state Palestine to join the International Criminal Court, clearing the way for possible war crimes complaints against Israel. Palestinians hope the tribunal will give them more leverage in a lopsided conflict and keep a distracted world focused on their statehood claims....Cases can take years, from an initial review to launching an investigation and possibly filing charges, said Alex Whiting, a senior official in the ICC prosecutor's office from 2010-2013 and now a Harvard law professor. War crimes allegedly committed during combat are among the most difficult to prove, said Whiting, suggesting a Gaza war complaint would face stiff challenges.

The fight over greater regulation of abortion is swinging once again to the federal courts, where challenges to recent state laws are producing a patchwork of contradictory rulings that may eventually reach the Supreme Court...“I think the fate of the undue burden standard is really being debated and discussed in the courts right before our eyes and seems ripe for a Supreme Court review,” said Gretchen Borchelt, state policy director for the National Women’s Law Center. [Glenn] Cohen, co-director of Harvard Law’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, concurs. “The notion of when something becomes an undue burden is extremely vague,” he said.

Depending on whom you talk to these days, Harvard University’s policies to prevent sexual assault either are woefully inadequate or risk trampling on the rights of men following tipsy, consensual hookups....According to the law professors, Harvard’s universitywide policy would put students at serious risk of being found guilty of rape if the students involved were "impaired" by alcohol or drugs, rather than "incapacitated," said Elizabeth Bartholet, a Harvard law professor who signed the letter...."This means that students who engage in sexual touching or sexual intercourse while having a few drinks are all at risk of being held guilty of the very serious charges of sexual assault and rape," she wrote in an email to The Chronicle, "regardless of their understanding at the time that they mutually consented to such activity."