Media Mentions

An op-ed by Noah Feldman. Well, you heard it here first: Ignorance of the law is an excuse, so long as you're the police. Or so the U.S. Supreme Court has said in a 8-1 decision that symbolically strengthened the hand of the police to make stops even on the basis of nonexistent laws. The court split hairs, explaining that police ignorance is excusable only when the crime for which the defendant was convicted is different from the nonexistent crime for which he was stopped and searched. If that sounds iffy, it is. Here's why.

Labor may be at a turning point in this country. New campaigns have started to infuse fresh energy into a moribund and declining movement, and new models of collective action are being proposed in the course of these ongoing efforts. While the existing National Labor Relations Board (NLRB)/National Mediation Board (NMB) certification election-contractual bargaining system still functions on paper, in practice it has broken down...There’s absolutely no doubt that if workers are going to ultimately make their own destiny that a new model or approach is needed for unions. One that has been proposed, separately by the UAW at the much-discussed Chattanooga, Tennessee, Volkwagen plant, by Harvard Law School professor Benjamin Sachs, and by labor lawyer and writer Tom Geoghegan is the implementation of works councils in the United States.

On Sunday night, famed attorney David Boies sent a threatening letter on behalf of Sony Pictures to The Hollywood Reporter, The New York Times and other news organizations demanding destruction of stolen information and warning of consequences for publishing the company's secrets...That decision offers tremendous hope for news organizations that Sony's threats against the news media are empty. "Unless the media is involved in the hacks themselves, the Bartnicki case puts the law on the side of the media," says Andy Sellars at Harvard University's Berkman Center for Internet & Society.

We recognize four outstanding contributors to Harvard Magazine for their work on readers’ behalf in 2014, and happily confer on each a $1,000 honorarium...The talented Michael Zuckerman ’10 (a writer, Lowell House resident tutor, and first-year Harvard Law student) took readers inside undergraduate life today in “The Lowell Speeches Project” (September-October), a model of warmth and clarity. He also reported in print in the same issue (“Citizen Scholars,”) and has written astutely online, on Teach for America and other topics. It is fitting to celebrate his contributions with the Smith-Weld Prize which honors thought-provoking writing about Harvard in memory of A. Calvert Smith ’14, a former secretary to the Governing Boards and executive assistant to President James Bryant Conant, and of Philip S. Weld ’36, a former president of the magazine.

How much power should a president have? Anyone who thought America settled that question late in the 18th Century with the ratification of the Constitution hasn’t been paying attention to the news. The Speaker, John Boehner, has hired law professor Jonathan Turley to represent the House in a lawsuit over President Obama’s unilateral changes to the health care law...Into this fight wades a Harvard Law School professor, Cass Sunstein, with a new paper that attempts to provide a theoretical rationale for increased executive authority and discretion. Professor Sunstein, who served in the Obama administration, offers his essay with the warning that it is “subject to substantial revision” and was “originally intended for oral presentation” as the keynote lecture at the University of Chicago Legal Forum. Professor Sunstein’s essay defines and describes a new ill he calls “Partyism.”

An op-ed by William Desmond [`15]. Over the last week, much has been said about law students’ petitioning for exam extensions in light of the circumstances surrounding the deaths of Michael Brown and Eric Garner at the hands of police officers. Students at Harvard Law School, Columbia Law School, Georgetown University Law Center and several other schools requested that their administrations allow extensions on final exams for students who have been confronting the aftermath of the recent failed grand jury indictments of the officers who killed the unarmed black men. In response, opponents of exam extensions have declared that to grant these requests would be a disservice to the students. Law students, they argue, must learn how to engage critically with the law in the face of intense adversity...Speaking as one of those law students, I can say that this response is misguided: Our request for exam extensions is not being made from a position of weakness, but rather from one of strength and critical awareness.

An op-ed by Jeannie Suk. Imagine a medical student who is training to be a surgeon but who fears that he’ll become distressed if he sees or handles blood. What should his instructors do? Criminal-law teachers face a similar question with law students who are afraid to study rape law...But my experience at Harvard over the past couple of years tells me that the environment for teaching rape law and other subjects involving gender and violence is changing. Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor.

Well, that was fast. At a Senate Banking Committee hearing on Nov. 19, Melvin Watt, the director of the Federal Housing Finance Agency, was in the hot seat, explaining to Senator Elizabeth Warren why Fannie Mae and Freddie Mac had done so little to help families who were facing foreclosure save their homes....Housing advocates like Eloise Lawrence, a staff lawyer with the Harvard Legal Aid Bureau, have an answer. Although expressing disappointment about the limited nature of the directive, Ms. Lawrence described it as “a positive move in the right direction.” She also noted that the bureau has four families who would directly benefit.

Cass Sunstein ’75, J.D. ’78, has been regarded as one of the country’s most influential and adventurous legal scholars for a generation. His scholarly articles have been cited more often than those of any of his peers ever since he was a young professor. At 60, now Walmsley University Professor at Harvard Law School, he publishes significant books as often as many productive academics publish scholarly articles—three of them last year. In each, Sunstein comes across as a brainy and cheerful technocrat, practiced at thinking about the consequences of rules, regulations, and policies, with attention to the linkages between particular means and ends. Drawing on insights from cognitive psychology as well as behavioral economics, he is especially focused on mastering how people make significant choices that promote or undercut their own well-being and that of society, so government and other institutions can reinforce the good and correct for the bad in shaping policy.

An op-ed by Noah Feldman. Was there racial bias in the jury rooms of Ferguson, Missouri, and New York's Staten Island? We’ll probably never know -- and if we did, it wouldn’t change the outcome in the cases tied to the deaths of Michael Brown and Eric Garner. According to a 230-year-old rule, courts ordinarily won’t reopen verdicts based on juror testimony about what went on behind closed doors, not even if the evidence would invalidate the verdict. The U.S. Supreme Court strengthened the code of silence yesterday, holding that federal evidence rules bar juror testimony that another juror lied in the jury selection process. But is jury omertà a good thing? It turns out that its meaning and justification have changed considerably over the centuries. In this age of open government and concern about jury racism, it may be time to reconsider a principle that lets the jury get away with almost anything.

An op-ed by Noah Feldman. Last week was a bad one for professors. First, Jonathan Gruber, an economist at the Massachusetts Institute of Technology, was raked over the coals by the House Oversight and Government Reform Committee for referring to the “stupidity of the American voter.” Then, Ben Edelman, an associate professor at Harvard Business School, was excoriated on the Internet for demanding treble damages after a Chinese restaurant overcharged him $4 on a delivery. If you’re a professor, especially one like me who has worked with the government and on occasion orders Chinese food, incidents like these are occasion for a little soul-searching. Beyond the obvious lesson to be humble -- or at least act humbly -- there's another message hiding: Professors are being held to a higher standard than civilians when it comes to public conduct. And that's a good thing.

All-inclusive vacations might feature a stay in a luxury hotel, gourmet meals, and in some cases, a hip replacement. Companies that specialize in medical tourism help patients in the U.S. find health care opportunities abroad, often at greatly reduced costs. This hour, we’ll talk about why a million Americans each year travel overseas for medical care and the legal and ethical gray areas of this growing trend. Guests: Glenn Cohen, professor of law and bioethics at Harvard, author of “Patients with Passports: Medical Tourism, Law and Ethics”.

For most people, giving money to charity feels great. Asking for the money back is a whole different story. Yet philanthropy experts say donors increasingly are doing just that: requesting “refunds” on gifts they feel have been misused, ignored, or spent in a way that strays from their original reason for giving...“About 30 states have the Uniform Trust Code, which authorizes donor standing to enforce a charitable trust,” says Robert Sitkoff, a professor at Harvard Law School who studies wills, trusts and estates. But “a New York court has gone further, recognizing donor standing to enforce other kinds of charitable gifts, too.”

President Barack Obama in 2008 pledged to blunt the power of big money interests in politics. Instead, he's overseeing the return of a gilded age with billionaires running their own parties out of high-rise offices and candidates spending more of their time mingling with them behind closed doors. ..."He did literally nothing in the whole of his administration to address either the way congressional elections are funded or how presidential elections are funded," said Larry Lessig, a Harvard Law professor whose super-PAC spent $10 million this year trying to elect candidates who support limiting the influence of money in campaigns. "He hasn't even floated an idea."

Hundreds of Harvard affiliates from across the University’s schools brought traffic in and around Harvard and Central squares to a standstill Friday evening as they marched through Cambridge streets in protest of racial prejudice in the criminal justice system...Before concluding the hour-long string of speeches, poetry, and songs, Victoria I. White-Mason [`15], a Law School student who organized the demonstration, told fellow protesters to remain peaceful as their demonstration proceeded into the Square. White-Mason also invited representatives from other Harvard schools to a stage organizers had set up, asking them to read “oaths” that vowed commitment to fighting racial inequality in their respective disciplines and professions.

An op-ed by Cass R. Sunstein. It is often said that people who don't want to solve the problem of climate change reject the underlying science, and hence don't think there's any problem to solve. But consider a different possibility: Because they reject the proposed solution, they dismiss the science. If this is right, our whole picture of the politics of climate change is off. Here’s an analogy. Say your doctor tells you that you must undergo a year of grueling treatment for a serious illness. You might question the diagnosis and insist on getting a second opinion. But if the doctor says you can cure the same problem simply by taking a pill, you might just take the pill without asking further questions.

First up, Jonathan Zittrain of Harvard Law School talks about the implications behind Google News shutting down operations in Spain. And Tony Gallippi, Co-Founder and Executive Chairman of BitPay, explains why Bitcoin may become more mainstream … especially now that Microsoft has started accepting it. Plus, how well have you kept up with the week in tech news? It's time for Silicon Tally. This week, host Ben Johnson takes on Paul Kedrosky, partner at SK Ventures.

The United States is obliged by international law to investigate its citizens suspected of engaging in torture, but even if it does not, Americans who ordered or carried out torture can be prosecuted abroad, by legal bodies including the International Criminal Court, legal experts say. ...But for Ms. Bensouda, who has had enormous difficulty even gaining custody of some of her most high-profile defendants, let alone winning convictions, the prospect of going after Americans could prove especially tricky. The court is still new, and fragile, said one of her former colleagues, Alex Whiting, and picking a fight with the United States could be “damaging” to the court’s standing in the world. “On the other hand the legitimacy of the court depends on it reaching a point where it treats countries alike,” said Mr. Whiting, who was the prosecution coordinator in The Hague from 2010 until last year and now teaches law at Harvard University. “The court is in a very difficult position on this.”

... Here is an utterly loony paper by Securities Exchange Commissioner Daniel Gallagher and former SEC commissioner Joseph Grundfest arguing that Harvard is violating the securities laws in its Shareholder Rights Project. That project, run by Harvard professor Lucian Bebchuk, submits shareholder proposals to public companies asking them to de-stagger their boards, so that all directors are elected every year instead of electing one-third of directors a year to three-year terms. Staggered boards make activism hard and hostile takeovers nearly impossible, and so are often viewed as shareholder-unfriendly. There is some empirical evidence that they are in fact bad for shareholders. There is other empirical evidence that they are good for shareholders. There is yet other empirical evidence that they are sometimes good and sometimes bad. (This is how empirical corporate governance research always works out, by the way.)

Seasoned judges like Wolf and Ponsor, who oversaw the only two death penalty trials in the state in modern times, and veteran judges Rya W. Zobel and Joseph L. Tauro recently went on senior status, creating the vacancies that allowed for the appointments. Retired federal judge Nancy Gertner, who stepped down in 2011 and now teaches at Harvard, said she chose to leave the bench entirely so that she could speak more openly about judicial matters, something she wouldn’t be able to do as a judge. She recently wrote a Globe column criticizing the legal process used in the Ferguson, Mo., police shooting investigation. She has also has given media interviews, and said, “I feel freer now to be critical.” “Do I miss the bench? Yes, there’s something very special about being able to assess a just result, in your courtroom,” she said.

The surge in U.S. companies avoiding taxes by taking a foreign address has been condemned by President Barack Obama and stirred a policy debate in Congress. What’s often overlooked is that these “inversions” are typically a final step in a hopscotch of multinational tax dodging. ... The Organization for Economic Cooperation and Development, a group funded by governments around the world, is attempting to restrict profit shifting. Its initiatives could affect U.S. companies including Google Inc., Apple Inc., and Starbucks Corp. “Transfer pricing is the elephant in the room,” said Stephen E. Shay, former deputy assistant secretary for international tax affairs at the Obama Treasury Department, now a professor at Harvard Law School. “Transfer pricing is what makes inversions even more valuable.”