Media Mentions

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.

An op-ed by Noah Feldman. Is it a lie if you don’t know what you're saying isn't true? This eternal philosophical question, well-known to 6-year-olds everywhere, is now before the U.S. Supreme Court -- and the stakes are hundreds of millions of dollars' worth of securities class-action litigation. To be more precise, the court is considering whether Section 11 of the Securities Exchange Act of 1933, which makes issuers liable for making material false statements in their registration statements, applies when the issuer says it “believes” it is complying with the law, even when objectively speaking it isn’t. The appellate courts are split on the issue, and the Supreme Court’s resolution will have significant consequences for any issuing company that falls afoul of regulators and wants to avoid paying out to a shareholder class action.

An op-ed by Cass R. Sunstein. In tomorrow's election, the Republican Party seems poised to make significant gains in the U.S. Senate and the House, and might well end up with control of both. If so, how will it define itself? It is tempting to answer by pointing to concrete policy proposals -- reducing regulation, promoting free trade, cutting the federal budget. But does any general theory, or approach to government, unify those proposals? In a magnificent essay, one of modern conservatism’s greatest heroes, Friedrich Hayek, offered an answer. Published in 1960, Hayek’s “Why I Am Not A Conservative” deserves careful attention today, perhaps above all from Republicans.

An op-ed by Lani Guinier and Penda D. Hair (co-director of the Advancement Project). Contrary to popular belief, Americans’ right to vote is not guaranteed. Sure, the Constitution mentions voting more than any other right – forbidding it from being abridged on the basis of race, for example, or the ability to pay a poll tax. Yet it contains no language that makes this right explicit. This missing safeguard has become more glaring in recent years, as politicians have enacted laws that make it harder for certain people to vote. The Supreme Court’s gutting of a key provision of the Voting Rights Act in 2013 in the Shelby County vs. Holder decision made voting rights more vulnerable than ever. In the past two years alone, the Advancement Project and other civil rights organizations legally challenged restrictive voting laws in Texas, Florida, Wisconsin, North Carolina and other states.

Personhood and abortion rights ballot measures will take center stage on Tuesday as voters in three states – North Dakota, Colorado and Tennessee - seek to determine when life begins and, potentially, the role government has in limiting abortions. Although recent polling shows that only North Dakota’s measure is likely to pass, that may be enough for personhood and right-to-life advocates. ..."It's [the North Dakota law] that’s dangerous from the perspective of women’s rights. Even though this law doesn’t successfully unravel anything about Roe v. Wade, it could still make abortion less widely available,” says Laurence Tribe, professor of constitutional law at Harvard Law.

An op-ed by Patrick Wit `17. I am a first-year student at Harvard Law School, and I join the 28 members of our faculty who recently protested the university’s adoption of a new and expansive sexual harassment policy. While I agree wholeheartedly that universities have a moral as well as a legal obligation to provide their students with learning environments free of sexual harassment, I echo the faculty’s concern that this particular policy “will do more harm than good,” and I urge the university to reconsider its approach to addressing the problem. If considered only in the abstract, many might wonder how a policy with such a laudable aim could draw any serious objections. And I might well have been among them — were it not for the fact that such a policy nearly ruined my life. Now, in the hopes that my painful and humiliating experience might yet produce some good by improving the final measures adopted, I offer my own story as a real-life example of how this well-intended policy can produce disastrous consequences if it remains detached from the most basic elements of fairness and due process that form the foundation of our legal system.

An op-ed by Anna Byers `16, Anna Joseph `16 and Maggie Dunbar `15...In response to their professors’ public statement, several Harvard Law School students drafted the following response petition, which addresses points on which they disagree with those 28 faculty members. As students of Harvard Law School, we write to voice our support for survivors of sexual assault, for promoting equal access to the benefits of education, and for administrators who treated federal civil rights law as a floor rather than a ceiling...Because going to Harvard is a privilege, but safety is a right; because when you speak, people listen; because we respect you, and consider your voices when finding our own: we ask you to reconsider the positions you stated in your op-ed...The petition has 117 student signatories and was endorsed by Harvard Law School’s Sexual Assault/Sexual Harassment advisers, HLS American Civil Liberties Union, HLS Lambda, HLS National Lawyers Guild, and HLS Students for Inclusion.

A letter by Lawrence Lessig and Nick Dranias. In a recent PostEverything commentary, Robert Greenstein attacked the Article V convention mode of proposing amendments to the U.S. Constitution. A critique of past balanced budget amendment proposals provided the platform for his assault. His argument is obsolete. The amendment by convention movement is not characterized by a left-right divide. The drive for the proposal of a balanced budget amendment is only one important part of a growing movement. The Article V amendment process is simply a vehicle for reform that Congress itself can’t control -- one that can spark fundamental changes in federal policy, and that can be tuned in advance to specific reform proposals. It is a procedure, not a party platform, open to reformers from all sides.

An op-ed by Kayleigh McEnany `16. President Barack Obama’s various efforts to court the young vote have crystallized his offensive, albeit sometimes successful, strategy: banking on the stupidity of Millennials. His efforts always follow the same path. He begins by trotting out star-studded celebrities like Amy Poehler and Zach Galifianakis. When star power fails to dazzle, the President then turns to lame, and at times insulting, comedy. Think pajama boy, where the administration characterized Millennials as low-lives sipping lattes in plaid, flannel onesies, all in an attempt to get youth to sign up for Obamacare. Now, it appears the administration has added a third prong to its Millennial approach: promoting nonsensical policy it expects young people to buy hook, line, and sinker.

It’s a fool’s game to parse all the public statements and media reports about the nuclear negotiations with Iran in an effort to lay odds on the outcome as the Nov. 24 deadline approaches. ...William Ury, co-founder of Harvard Law School’s Program on Negotiation and co-author of “Getting to Yes,” advises thinking of the talks as having three negotiating tables: one with six world powers and Iran, a second with Iranian officials and their hard-liners at home, and a third with the Obama administration and skeptics of a deal in Washington, including Congress and advocacy groups that see a deal with Iran as a threat to Israel. “It used to be that those were three separate negotiations,” Ury said. “But now thanks to social media, things being said at any of those three tables are instantly available to all three. It feels like you’re negotiating in a fishbowl.” That makes it hard for both the U.S. and Iran to reassure their own constituencies at home without saying things that cause problems for the other side.

When I. Glenn Cohen, a professor at Harvard Law School and director of a bioethics center there, helped to organize a conference in 2012 about the future of research on human subjects, he says he worried about being "late to the party." In 2011, the Department of Health and Human Services had floated some ideas for changes in the rules governing such research. The aim was both to better protect the subjects and to reduce the much-resented bureaucratic burden on professors and university staff members. Mr. Cohen needn’t have worried about tardiness. Today, more than two years after the conference, the regulations remain just where they were in 2011: still under development.

Fareed speaks with Lawrence Lessig, a professor at Harvard Law School and director of its Safra Center for Ethics, about what the U.S. Should learn from the Hong Kong protests..."in America, like in Hong Kong, we have a two-stage process. And at the first stage, a tiny fraction of our democracy chooses the candidates who get to run, effectively, in the second stage. And so it's just like that two-stage process in Hong Kong."

They are all companies that call Minnesota home: Medtronic, 3M, St. Jude Medical, General Mills and Ecolab. But they also all hold 90 percent or more of their cash outside the United States. Amid a growing national political debate over corporate tax avoidance, some of the Twin Cities’ biggest corporate citizens are accumulating giant stockpiles of money beyond America’s borders and, therefore, beyond the reach of the Internal Revenue Service...“It’s a game of chicken,” said Harvard Law School professor Stephen Shay, an authority on corporations’ tax avoidance. “They’re just waiting to have Congress give them a tax break.”

After spending much of the past few years as one of the handful of companies who could justifiably regard the Great Recession as a blessing, the company that gave the world the Happy Meal, Ronald McDonald and those iconic “golden arches” was rudely reminded earlier this month of what life’s been like for most everyone else: After posting some paltry numbers for third quarter revenue, income and earnings, McDonald’s saw its stock drop by as much as 58 cents...With so many protestors no doubt feeling the exhaustion of running a multi-year campaign, and with the fast-food companies themselves in no position to dismiss their workforce’s persistent (and popular) demands, you’d think now would be a time for leaders on both sides to start thinking about engaging in real negotiations. At the very least, that’s the question Harvard Law professor and On Labor contributor Ben Sachs has been raising as of late. And although the lack of union representation is one of the major points of contention between protestors and fast-food management, Sachs believes there may be a model for how negotiations can go forward nevertheless. Earlier this week, Salon called Sachs to discuss his idea and the fast-food workers movement in general.

When President Obama signs an executive order giving temporary deportation relief and work authorization for millions of undocumented immigrants, Republicans across the country and on Capitol Hill will blow up. But there’s not much they can do about it that will make a difference....In a one-word statement, distinguished Harvard constitutional law professor Laurence H. Tribe told TIME that the GOP claim was “unlikely” to have standing.