Media Mentions

An op-ed by Noah Feldman. The U.S. Court of Appeals for the Sixth Circuit's refusal to declare a constitutional right to gay marriage is wrong. But it isn’t wrong in any simple way. The opinion isn’t grounded in homophobia or bias. It isn’t grounded in head-in-the-sand originalism. The decision, written by George W. Bush appointee Judge Jeffrey Sutton, is grounded in a theory of judicial restraint -- and not even judicial restraint generally, but a very modest theory of judicial restraint appropriate to appellate courts that are subordinate to Supreme Court precedent. So if you want to explain why the opinion is wrong, you can’t just say, “Gay marriage should be a basic right.” You have to explain why the court should have said so despite the Supreme Court’s unwillingness thus far to reach that conclusion.

Leading generals in Burma’s powerful military should be charged with war crimes and crimes against humanity, according to researchers who claim to have accumulated enough evidence to mount a successful prosecution under international law. A four-year investigation by the International Human Rights Clinic at Harvard Law School focused on an offensive in the eastern part of Burma, also known as Myanmar, in 2005 and 2006. The study documented soldiers firing mortars at villages, slaughtering fleeing villagers, destroying homes and food, laying land mines indiscriminately and forcing civilians to work without pay...“These are serious allegations that demand a determined, good faith response by the Myanmar government and military,” said Tyler Giannini, co-director of the clinic. “The abuses perpetrated by the military have been too widespread, too persistent, and too grave to be ignored.”

You might be able to add the so-called poison pill to the list of Bill Ackman’s conquests this year. On Tuesday, a judge in California ruled that Ackman is allowed to vote his shares at a key meeting next month in the long-running takeover battle for botox maker Allergan....Lucian Bebchuk, a Harvard professor who has called laws that uphold poison pills provisions unconstitutional in the past, isn’t claiming a victory yet. He says the California judge’s ruling doesn’t change much. Activists always had the ability to vote out board members to get around poison pill agreements. “The poison pill remains highly relevant and [is still] the key defense tool that targets use to block offers,” says Bebchuk.

Military activities carried out by Myanmar’s powerful minister of home affairs when the country was under dictatorship could constitute war crimes, a new study charges, saying there is evidence that he and two other generals were responsible for the executions, torture and enslavement of civilians by troops during a large-scale offensive against ethnic rebels. Human rights researchers at Harvard Law School said in the report released Friday they spent three years collecting information about the government’s 2005-2006 counterinsurgency efforts in Myanmar’s Karen state along the country’s eastern border...“Ko Ko oversaw egregious rights violations in eastern Myanmar,” Matthew Bugher, global justice fellow at Harvard Law School and a principal author of the report told The Associated Press. “His prominent position in Myanmar’s Cabinet calls into question the government’s commitment to reform.”

An op-ed by Kenneth W. Mack. If you want to know who to blame for any number of global and domestic crises, there is one simple answer, according to many critics: Barack Obama. The tide turned against many Democratic Congressional candidates in this year’s mid-term elections largely, some claim, because of President Obama’s relatively low approval ratings. Critics have charged Obama with indecision in the face of crises ranging from ISIS to Ebola. The seeming drift began soon after his second inaugural address – delivered only last year – when his ambitious call to collective action was quickly overtaken by a series of controversies ranging from the NSA surveillance leaks to the botched rollout of healthcare.gov. Yet a quick look back at history complicates the notion that these challenges are rooted in President Obama’s individual leadership deficiencies. It also illuminates a factor that does, indeed, make this president’s situation unique: the often-ignored fact that he is America’s first black president.

An op-ed by Cass R. Sunstein. Of the many changes that will result from the midterm elections, here's a big one that has received scant attention: Expect hearings and investigations. Lots of them. When the president’s party controls the Senate, the chairs of its various committees tend to be relatively friendly. Yes, they hold hearings and engage in investigations, but as a general rule, the process is cordial not adversarial.

An independent investigation by the Harvard Law School has found that troops commanded by Myanmar's powerful interior minister and two other senior officials tortured and killed civilians over six years ago while fighting an ethnic rebellion. Researchers spent four years collecting information about Home Affairs Minister Major General Ko Ko, Brigadier General Khin Zaw Oo and Brigadier General Mang Maung Aye, said the report released on Thursday. They commanded troops during an offensive against rebels in eastern Karen state between 2005 and 2008, when soldiers fired mortars at villages and executed civilians, among other crimes, it said..."We've established that they had command and control over the forces that were committing these crimes," said Matthew Bugher, one of the authors of the report by the International Human Rights Clinic at Harvard Law School who handed over the report's findings to the government on Wednesday.

Their parents had abandoned them, but the three small children clung together, a family without grown-ups. Roman took care of his younger brother and sister, begging for food and stealing potatoes from a field in Rudnoye, their Russian village...Roman lives in Watertown today, 6,000 miles from his hometown in the Russian far east. He was so small when he got to the United States five years ago that his height and weight — 4 feet, 4 inches and 57 pounds — placed him below zero percent on the international growth chart for children...Elizabeth Bartholet, a professor at Harvard Law School and faculty director of the Child Advocacy Program, says that adoptive parents hold the same legal rights as biological parents to make decisions for their children. “There is not much in the law that honors the right of siblings to contact each other just because they are blood siblings,” said Bartholet, who is not involved in the Davis case.

The legalization of same-sex marriage in many states was a titanic step forward for the LGBT community, but the community still faces a number of challenges in gaining full equality, according to Mary Bonauto, a leading lawyer in the field...Bonauto spoke Tuesday at a brown-bag luncheon at Harvard Law School (HLS), during which she was interviewed by Dean Martha Minow and fielded questions from students in the audience.

A report by Harvard researchers due to be released on Friday says there is sufficient evidence to prosecute high-ranking officers in Myanmar’s military for crimes against humanity and war crimes committed against an ethnic minority. The report, published by the International Human Rights Clinic at Harvard Law School, is based on a three-year study of villages near the Thai border, where the military conducted a large-scale offensive against ethnic Karen fighters from 2005 until 2008. The authors say that “widespread and systematic” attacks directed against civilians during the offensive justify war-crime prosecutions.

Pepsi, IKEA, FedEx and 340 other international companies have secured secret deals from Luxembourg, allowing many of them to slash their global tax bills while maintaining little presence in the tiny Central European duchy, leaked documents show...“A Luxembourg structure is a way of stripping income from whatever country it comes from,’’ said Stephen E. Shay, a professor of international taxation at Harvard Law School and a former tax official in the U.S. Treasury Department. The Grand Duchy, he said, “combines enormous flexibility to set up tax reduction schemes, along with binding tax rulings that are unique. It’s like a magical fairyland.”

An op-ed by Noah Feldman. Is a fish a tangible object? Does a sawed-off shotgun pose serious risk of injury? Laugh if you must, but the U.S. Supreme Court is taking up these questions in a pair of cases that will form another chapter in the saga of our vastly expanding federal criminal law. Funny as the cases may seem -- both funny strange and funny ha-ha -- they illustrate how policy and law constantly interact for a court deeply divided about the nature of statutory interpretation.

Technology companies and the federal government are locked in an escalating legal battle over data surveillance and consumer rights, said Microsoft’s General Counsel Brad Smith at a Law School forum Tuesday...Conversing with Law School Professor Jonathan L. Zittrain, who moderated the forum, Smith argued that the U.S. government must respect both domestic and international privacy laws, instead of unilaterally and opaquely obtaining data.

On Tuesday, former Kirkland House tutor Eric P. Lesser ’07 [HLS `16] secured the Massachusetts State Senate seat for the First Hampden and Hampshire District, which consists of eastern Springfield and surrounding towns. Lesser was expected to do well after receiving high-profile Democratic endorsements on his behalf, most notably Senator Elizabeth Warren. He received 51 percent of the vote, according to the Associated Press, with 90 percent of precincts reporting. A third year student at the Law School who resided in Kirkland during his time in the College, Lesser left in January to secure the Democratic nomination.

Voters are usually inclined to vote their pocketbooks. But that's become more difficult with every election, as the pocketbooks that carry the most weight aren't those of the individual voter, but corporations and plutocrats...Shareholder interest in how much money their companies spend on politics, and where, is high. In recent years, according to a study by Lucian Bebchuk of Harvard and Robert L. Jackson Jr. of Columbia, disclosure of such spending has been the top subject of shareholder proposals at U.S. public companies...Inevitably, at least some shareholders will consider themselves out of step with the corporate brass: "Shareholders do not sort themselves among companies according to their political preferences," Bebchuk and Jackson observe.

The conflict between snooping governments seeking to defeat encryption and users demanding ever more robust privacy tools has turned into an arms race -- and it's time for arms control talks, Microsoft's general counsel said on Tuesday. Resolving that conflict requires a new consensus on how to balance public safety and personal privacy, Brad Smith said in a forum at Harvard Law School...In an expansive conversation about privacy and rebuilding trust in technology after revelations of widespread government spying, Smith talked about Microsoft's first "sea-change" moment. It came in the year after the September 2001 terrorist attacks, when Microsoft, among other Internet companies and telcos, was asked to voluntarily share data with U.S. law enforcement. In the heat of the moment, in 2002, "it was easy to do things that we wouldn't otherwise do," Smith told Jonathan Zittrain, a professor of law and computer science at Harvard who moderated the event.

Open Facebook today and you’ll see a public service announcement of sorts. “It’s Election Day,” proclaims the text. “Share that you’re voting in the U.S. Election and find out where to vote.”...In other words, to paraphrase Harvard professor Jonathan Zittrain, the 2000 presidential election—where George W. Bush won Florida by 537 votes—could have been altered by a Facebook election button...As Zittrain wrote earlier this year, the company could easily combine that tranche of data with selective deployment of its “I Voted” button and tilt an election. Just make certain populations more likely to see the button, and, ta-da: modification managed.

An op-ed by Adrian Vermeule. How should we approach legal decisions regarding private property for public use? How can constitutional risk be managed in order to maximise the benefits? In this article adapted from the author’s book The Constitution of Risk, Adrian Vermeule explores such questions, looking at the role of constitutional risk within free market development, financial regulation, and how constitutional rulemakers are able to optimise strategy in these fields.

An op-ed by Mark Roe. When a company files for Chapter 11 protection a second, third or even fourth time, who’s to blame? Bankruptcy recidivism has a bad name. The best data points to one out of six restructured companies refiling for bankruptcy not long after getting a Chapter 11 plan of reorganization confirmed. If blame needs to be handed out, one could point to the judge who is charged under the Code with independently concluding that the plan is not likely to lead to a further restructuring of the company. But blaming the judge would be harsh, because the statutory standard of ‘not likely’ doesn’t require a “guarantee,” just a likelihood. The data suggests that most—more than 80%—don’t refile.

An op-ed by Noah Feldman. Menachem Zivotofsky hasn’t had his bar mitzvah yet, but he’s already been to the Supreme Court -- twice. A U.S. citizen born in Jerusalem, Zivotofsky (through his American-Israeli parents) seeks to have his birthplace named as “Israel” on his U.S. passport, not “Jerusalem” as is State Department practice. Having previously determined that the courts had the authority to hear the case, the Supreme Court is now hearing oral arguments and will decide whether a 2002 law requiring the State Department to add “Israel” to the place of birth on passports such as Zivotofsky’s unconstitutionally infringes on the president’s foreign relations power.

An op-ed by Noah Feldman. Edward Snowden may never appear before a U.S. court, much less the Supreme Court -- but that doesn't mean his whistle-blowing is far from the justices’ minds. What they think about it will be very much in evidence as the court hears oral arguments today in Department of Homeland Security v. MacLean, a case concerning an air marshal who was fired for disclosing "sensitive security information" to the media. The justices will have to decide whether the federal law that protects whistle-blowers extends to those who break an agency's regulations but not a law passed by Congress. This will matter for individual whistle-blowers in the future as well as for the overall environment in which prosecutions of government employees continue to be brought.