Media Mentions

An op-ed by Noah Feldman. By definitively re-electing Benjamin Netanyahu, Israelis refused to go left and refused to go right. This was what Netanyahu expected when he called for early elections -- and having just won his fourth, he certainly counts as the expert. The important question now is why Israelis are sticking with the status quo when external critics from the left and internal critics from the right were hoping for a meaningful course correction. Start with the biggest headline, namely the failure of the center-left coalition led by Isaac Herzog and Tzipi Livni to eclipse support for Netanyahu’s center-right party and its far-right partners.

An op-ed by Cass Sunstein. This week, Oregon became the first state to adopt automatic voter registration. If you’re an Oregonian over 18, and if you’ve dealt with the state’s Driver and Motor Vehicles Division since 2013, you’ll get a notice in the mail letting you know you’re registered to vote. Then, unless you opt out within three weeks, you’ll automatically receive a ballot 20 days before every election. (Oregon has all-mail voting.) Almost immediately, 300,000 more voters -- a big chunk of the estimated 800,000 state residents who are eligible but still unregistered -- are likely to be signed up.

The latest rap against big corporations is that they’re returning too much money to shareholders through dividends and stock repurchases. What they should be doing, the complaint goes, is using that money to build new factories, create new products and increase research. Their stinginess, the argument continues, is one reason for the lackluster recovery...Similarly, most executives don’t automatically favor share purchases over hard investment projects, argues Harvard law professor Lucian Bebchuk, an expert on corporations. If they had hard projects that were more profitable than purchasing shares, they would actually do better personally, he says. Firms would become more profitable, so their stock prices and executive compensation would rise even further. What’s happening, Bebchuk says, is that investment funds are being channeled from slow-growing to fast-growing sectors.

People don't always like what they see when they Google themselves. Sometimes they have posted things they later regret — like unflattering or compromising photos or comments. And it can be maddening when third parties have published personal or inaccurate material about you online. In Europe, residents can ask corporations like Google to delete those unflattering posts, photos and other online material from online search results. And under the right circumstances, those entities must comply...At the latest event from Intelligence Squared U.S., two teams tackled these questions while debating the motion, "The U.S. Should Adopt The 'Right To Be Forgotten' Online." ...Against the motion...Jonathan Zittrain is the George Bemis Professor of Law at Harvard Law School.

An op-ed by Noah Feldman. Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed? Of course not. Obeying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law. It would put the administration in the position of flouting the court’s authority. It would be substantially more outrageous even than the Alabama Supreme Court’s order to its probate judges to ignore a federal ruling striking down the state’s anti-gay-marriage law. For these reasons, it’s also completely unrealistic.

As President Obama forges ahead in his fight against climate change, a leading Harvard Law School scholar says a central piece of the president’s strategy is akin to “burning the Constitution” merely to advance an environmental agenda. In testimony before the House Energy and Commerce Committee on Tuesday, Harvard constitutional law professor Laurence H. Tribe said the Environmental Protection Agency’s plan to limit greenhouse gas emissions from U.S. power plants is built on a shaky legal foundation. The proposal, Mr. Tribe argues, far exceeds EPA’s authority under federal law and strikes a blow to the 10th Amendment by essentially making states subservient to Washington on energy and environmental matters.

The law professor, who taught President Obama says the Environmental Protection Agency lacks the statutory and constitutional authority to force states to implement plans to cut carbon emissions at existing power plants. “In my considered view, EPA is off on a constitutionally reckless mission,” Laurence Tribe, a professor at Harvard Law School, said in prepared remarks at a House Energy and Commerce Subcommittee on Energy and Power hearing on Tuesday...“This submissive role for the states confounds the political accountability that the Tenth Amendment is meant to protect,” Tribe said in his remarks. “EPA’s plan will force states to adopt policies that will raise energy costs and prove deeply unpopular, while cloaking those policies in the Emperor’s garb of state “choice” – even though in fact the polices are compelled by EPA.”

U.S. authorities have long argued that foreign bribery is a sign of deeper rot at a company that can sting investors. But many U.S.-based Foreign Corrupt Practices Act cases have not caused lasting damage to companies, even those that pleaded guilty to widespread bribery. But the widening scandal at Brazil’s state-controlled energy company Petrobras is illustrating just how hard investors can be hit when corruption is alleged to be endemic at a firm. The allegations have helped push its stock price down more than 60% since September and led to the ouster of its chief executive last month. The scandal also caused Moody’s to reduce the company’s debt to junk status. But that could be just the start. Anger over the revelations sent more than a million Brazilian protesters into the streets last weekend, in a sign that the issues may lead to a broader, more painful reorganization of the firm, said Stephen Davis, an associate director of Harvard Law School’s program on corporate governance. “It has elevated corruption on the risk hierarchy within the investor community,” Mr. Davis said. The case begs the question “if a company is looking the other way or tolerating corruption what else is the company doing that might not be in the shareholders’ interest?”

To have any chance of success, social movements must multiply awareness. Change is impossible unless people believe that change is needed. That is why activists spend so much time and effort spreading the word. But for all that effort, awareness is actually the easy part. The difficulty lies in cultivating knowledge so it grows into passion – and eventually action. That is precisely the challenge for the New Hampshire Rebellion and other groups battling the corrupting influence of money in politics...Lawrence Lessig, the Harvard law professor behind the nonpartisan Mayday PAC, draws inspiration from the late Doris “Granny D” Haddock, who 15 years ago walked across the nation at age 90 seeking campaign finance reform. In January, Lessig led a walk from Dixville Notch to Concord, which culminated in hundreds converging on the State House – a guerrilla force for peaceful change.

It was the sort of publicity you cannot buy. The day before HBO broadcast the final episode of the six-part documentary series “The Jinx,” the subject of the film, Robert A. Durst, was arrested on a murder charge. The arrest gave the impression that something dramatic would happen in the finale, and the show did not disappoint. Mr. Durst delivered what sounded a lot like an unwitting admission of guilt: “What the hell did I do?” he whispered to himself in the bathroom, apparently unaware that his microphone was still on. “Killed them all, of course.”...The formulation of the apparent confession was problematic in its own right. It was suggestive, but by no means definitive. In a column on Bloomberg View, the Harvard Law professor Noah Feldman compared it to a Shakespearean soliloquy. “Even the question-and-answer form (‘What the hell did I do? Killed them all, of course’) is reminiscent of the untrustworthy soliloquies delivered by Hamlet,” Mr. Feldman wrote. “The soliloquist asks himself the big questions while alone on stage (‘To be or not to be?’), and tries on different answers.”

New technologies are always a mixed blessing, their potential for good carrying with it the risk of evil. The deep challenge for a democracy is to develop legal rules, social practices and institutional arrangements that, at some reasonable cost, separate good from bad behavior...Protecting our privacy from the prying eyes and ears of government is the subject of Bruce Schneier’s “Data and Goliath,” whose title suggests an uneven struggle...Mr. Schneier, a security technologist and fellow at the Berkman Center for Internet and Society at Harvard Law School, is attuned to the smallest potential dangers: He points out (rightly) how easy it is to use metadata to identify by name participants in any medical study, or to track cellphone usage near the site of a labor dispute without a warrant.

California has banned state court judges from belonging to the Boy Scouts. The move extends an earlier ban on judges belonging to groups that discriminate on the basis of sexual orientation, but had an exemption for youth groups. Judges have one year to sever their ties with the Boy Scouts...Harvard Law Professor Noah Feldman says the current state of the law allows judges to belong to religious groups that discriminate but not secular organizations that discriminate. "So if the particular judicial code bans belonging to organizations that discriminate on the basis of sexual orientation, then it would make sense that the Boy Scouts would be included," he says. But Feldman predicts the U.S. Supreme Court will one day take up the question of judges' free association rights. And if that happens, Feldman thinks the court will say judges can participate in the Boy Scouts, regardless of the group's anti-gay policies.

David Wilkins, professor of law at Harvard University and Director of the Center on the Legal Profession, said partners are increasingly switching firms in groups — as demonstrated by at least 12 Pillsbury Winthrop Shaw Pittman partners who are joining Winston & Strawn. Wilkins explained what’s driving this trend, and why he expects it to continue at major law firms.

An op-ed by Noah Feldman. If you confess to murder alone, in the bathroom, while looking into the mirror -- and wearing a microphone -- is your confession admissible in court? On the surface, this is the question raised by Robert Durst’s statement, aired Sunday night in the final episode of HBO’s “The Jinx”: “What the hell did I do? Killed them all, of course.” Answering the question requires going deeply into the law -- but also into the circumstances of the statement. At the bottom lies a profound question about fantasy versus reality, the nature of a soliloquy, and the fascinating human strangeness unleashed by the era of reality television.

An op-ed by Cass Sunstein. U.S. Supreme Court justices may be wise, obtuse, fair or political, but we don't ordinarily think of them as eccentric. William O. Douglas, who was on the court in the middle of the 20th century, has long counted as the only unambiguously eccentric justice. But now, as an opinion on separation of powers issued last week makes clear, Justice Clarence Thomas has joined him. A judge can be counted as eccentric if he holds positions that don't fit with established law and that depart, frequently and significantly, from those that prevail within the court. A judge who is eccentric is not necessarily wrong, and eccentricity can be appealing. To many liberals, and especially to many law students, Justice Douglas seemed bold and admirably rebellious, in part because he was not bound by precedents.

Australia has been urged to comply with a United Nations ruling and allow more than 30 refugees to challenge the secret ASIO assessments used to justify their indefinite detention. Harvard University law specialist Gerald Neuman, who recently completed a four-year elected term on the UN's top human rights expert panel, said Australia's refusal to reveal the reasons for detention was shocking. "No one questions the ability of Australia to take steps to protect its security in proper ways," Professor Neuman said on Monday. "[But] I don't understand Australia to have ever said these men, women and children were a threat to the security of Australia." Professor Neuman, who served as the United States' representative on the UN Human Rights Committee until December last year, contributed to a scathing UN ruling against Australia's "cruel and degrading" practice to lock up refugees indefinitely without a right of appeal.

...January also saw the launch of a Massive Open Online Course (Mooc) on contract law from Harvard Law School. Students will get a taste of this foundational part of the law school curriculum at one of the country’s top institutions. The programme is intended for a general audience rather than part of studies for a law degree, and will “give people a sense of how the law works, and what kind of thing the law is”, according to Charles Fried, a Harvard professor and the course’s instructor. According to Professor Fried, it has already proven immensely popular. Students registered for the course number “well over 15,000 people, and they’re in all sorts of places, including two in Papua New Guinea.”

House Republicans will hold a slate of hearings challenging some of the Obama administration's main environmental rules. The House Energy and Commerce subcommittee on energy and power is planning a Tuesday hearing to attack the Environmental Protection Agency’s (EPA) proposed carbon rules for power plants...The star witness for Republicans will be Laurence Tribe, a Harvard University Law School professor who once taught President Obama and later served as his adviser. In comments commissioned by coal giant Peabody Energy Corp., Tribe last year challenged the EPA’s legal grounding for the rule. Other legal experts and representatives from states will also testify.

An op-ed by Cass Sunstein. Is law just a form of politics? Is the Supreme Court highly politicized? If you focus on the court’s anticipated divisions over Obamacare and same-sex marriage, you probably think so. But the court’s two dissent-free decisions Monday offer a different picture. They are a triumph for the ideal of a Supreme Court that focuses on law.

An op-ed by Noah Feldman. If the devolution from Marvin Gaye to Robin Thicke doesn’t stand for the decline of Western civilization, nothing does. The Los Angeles jury that found Thicke’s “Blurred Lines” unintentionally plagiarized Gaye’s “Got to Give It Up” apparently agreed. Choosing the dead genius over the living epigone was artistically correct -- but it set a terrible legal precedent. The case turned on a deep question about of copyright law: Is the point to protect the moral rights of the original author or to maximize socially valuable artistic production? The jury went with the author. It was wrong to do so. And Pharrell Williams, the true author of Thicke’s song, can help us see why.

The trick to interviewing a justice of the Supreme Court as it prepares to issue major decisions is to ask seemingly general questions that might nonetheless elicit a preview of what is to come. Noah Feldman, a law professor at Harvard, is a master of the technique, and on Thursday night, he made vigorous use of it to see what he could learn from Justice Stephen G. Breyer in a public conversation at the 92nd Street Y in New York. But the justice proved nimble in avoiding giving much away.