Media Mentions

Just months after the Obama administration cracked down on mergers that helped U.S. companies skirt domestic taxes, a wave of foreign takeovers is steering more tax revenue away from Uncle Sam. In deals known as “tax inversions,” which spiked in 2014, U.S. companies acquired foreign rivals and redomiciled in low-tax countries, reducing the taxes paid back home. ...Taxes “aren’t the afterthought” anymore in deal making, said Mihir Desai, a Harvard business and law professor, at a recent tax conference. “They are, in fact, a leading thought in the design of these [cross-border] transactions.”

The Justice Department’s scathing Ferguson report shows that the government is paying attention, Harvard law scholar Charles Ogletree told DW. He says Ferguson is not an isolated case and suggests what to do about it.

Dzhokhar Tsarnaev’s defense attorney, Judy Clarke, stunned a packed courtroom in Boston this week when she admitted that her client committed the Boston Marathon bombing and is responsible for a “series of senseless, horribly misguided acts.”...“Some juries come to a guilty verdict, but then exercise leniency in the second phase,” said Nancy Gertner, a former federal judge in Boston who now teaches at Harvard Law School. “If you plead guilty, you lose that compromise possibility.” In federal death-penalty cases, juries must go through two related trials: the first to decide if the defendant is guilty and the second to decide if the defendant, once found guilty, should be sentenced to death.

Over the past decade, companies doing business in Colombia, like Chiquita Brands and Dole Food, have incurred the wrath of Terrence Collingsworth, a lawyer who has accused them of mistreating workers or conspiring to kill labor activists. But these days, Mr. Collingsworth is on the defensive...The problems engulfing Mr. Collingsworth underscore the mounting difficulties facing a small group of plaintiffs’ lawyers who have carved out a niche suing multinational corporations on charges that they violated human rights overseas...“The bar has been set higher,” for human rights litigation, said Susan H. Farbstein, a law professor at Harvard.

Turning the tables on a federal judge’s ruling, the Alabama Supreme Court has closed the doors to gay and lesbian couples in the state who want to be married...Until then, “the situation is pretty chaotic,” said Laurence Tribe, a Harvard constitutional law professor. “We may have a kind of patchwork quilt in Alabama,” with other federal judges issuing their own marriage orders, he said. And if the state court tells judges to ignore those orders, he said, “we could have the kind of confrontation we had in Little Rock in 1957,” when Arkansas Gov. Orval Faubus defied a federal court school desegregation order.

While multiple requests by the defense team of Dzhokhar A. Tsarnaev, the main suspect in the 2013 Boston Marathon bombings, to relocate his trial have been denied, some Harvard Law School professors say the defense had legitimate qualms with the trial unfolding in Boston...“If there ever were a case for a change of venue, this is it,” said Nancy Gertner, a faculty member at the Law School and former U.S. District Court Judge for the District of Massachusetts. Law school professor Ronald S. Sullivan Jr. attributes the defense’s repeated requests to relocate the trial to the far-reaching impact that the bombing and the subsequent manhunt had on the Boston community...According to Harvard Law School professor Alex Whiting, judges deciding whether or not to relocate a trial must weigh a set of “competing interests.”

This is a corrected version of a story that originally appeared in News@Law on 3/4/15. 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 teaches a seminar on Obamacare, said the presence — or lack thereof — of a congressional fix could impact how the justices view the case. "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.

Almost two years after a pair of homemade bombs brought terror and carnage to the Boston Marathon, the trial of Dzhokhar Tsarnaev opened on Wednesday with the dramatic admission by his lead defense lawyer that her client had in fact set off the blasts that killed three people and injured scores of others. ... Nancy Gertner, a former judge who teaches at Harvard Law School, called it brilliant. By conceding that her client had committed the crimes, Ms. Gertner said, Ms. Clarke was trying to limit the painful, graphic details the government could bring up to undermine any sympathy for Mr. Tsarnaev. Because Ms. Clarke is not disputing the crimes, Ms. Gertner said, those details are no longer relevant. “The question now is, how far will the government go to prove what she has essentially conceded?” Ms. Gertner said.

When Islamic State militants overran northern Iraq late last year they captured enough weapons and equipment from fleeing Iraqi forces to supply three combat divisions. Could remotely operated kill switch technology on weapons stop the same thing happening in future? Antony Funnell investigates.... Watching such developments from his office in Boston, Harvard University law professor Jonathan Zittrain began thinking about the need for smarter weapons: weapons that could be disabled remotely if and when required. His inspiration was right in front of him.‘I was reflecting on the fact that companies like Apple have implemented kill switches for iPhones,’ says Zittrain, the director of the prestigious Berkman Center for Internet and Society. ‘If somebody boosts the phone from you, all is not lost. You can remotely disable it using your own Apple credentials to make it a much less enticing target to steal.

This is one of the conclusions of an analysis carried out, over a decade of records, on three global law firms and on other multinational professional firms by Heidi Gardner, a law lecturer at Harvard Law School. Ms Gardner says: ‘Moving beyond siloed services to complex, interdependent engagements allows a professional services firm to work for more senior executives in a client’s organization, who have a greater span of responsibility and greater authority and budget to hire external advisers.’

An op-ed by Noah Feldman: Beyond the technicalities of guns to the head and standing, a profound issue lies at the heart of the King v. Burwell case that the U.S. Supreme Court heard Wednesday -- and for a few shining moments, the justices debated it. That question can actually be put rather simply: What should happen when Congress writes a law with some internal incoherence? Should the courts assign a sensible meaning to the statute that makes everything come out right? Or should they follow the strict words of the law, and let the chips fall where they may? To be sure, the liberal justices don’t want that to be the issue. Neither does Solicitor General Don Verrilli, and neither do the liberal law professors who want Obamacare to survive. All of them are clinging to the fiction that the text of the statute produces the conclusion they want. That view was on display as Verrilli doggedly insisted that the words “established by the state” don’t literally mean what they say, but rather mean “established by the state -- or by the federal government on its behalf.”

In a white, perfectly circular rotunda at the Reagan International Trade Center, military officials and foreign policy experts gathered at the New America/ASU Future of War Conference. They sat at perfectly circular white tables, ate from perfectly circular white plates, and tried to create a perfectly precise definition of war. Yet the age of Clausewitz is over, a panel found. No longer is war only an act of physical violence, as Clausewitz theorized. In the future, what defines an act of war will become increasingly non-violent....“Where I think the line drawing could happen is the element of control over other people.” said Naz Modirzadeh, the Founding Director of the Program on International Law and Armed Conflict at Harvard Law School “The law on armed conflict is about when you control other people.”

The curtain abruptly fell Wednesday on Alabama’s brief experiment in same-sex marriage. Across the state, all 48 county probate offices that had been issuing marriage licenses to same-sex couples decided they could no longer do so, according to a survey by the Human Rights Campaign, a gay rights group. ...Several legal analysts said that while Alabama justices might have had the legal authority to essentially contradict a lower federal court’s ruling, it was nonetheless stunningly provocative, given that many observers expect the United States Supreme Court to rule in favor of same-sex marriage for all 50 states when it takes up the matter this year. “This is thumbing the nose of the Alabama Supreme Court at the U.S. Supreme Court, but it’s not directly defying it,” said Laurence H. Tribe, a professor of constitutional law at Harvard. “It’s coming as close to contemptuous defiance as it could possibly come without actually leaping directly into the pit.”

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.