Media Mentions

An op-ed by Noah Feldman. President Barack Obama has made headlines by announcing that he favors net neutrality -- and in particular that he wants the Federal Communications Commission to designate Internet service providers as common carriers that would be regulated like utilities. What's weird about the president's announcement is not the policy perspective, about which reasonable people can differ. What's weird is that the president’s statement has no legal effect. He appointed a majority of the FCC’s commissioners -- but he can't fire them short of malfeasance, and they won't ever run for election. What kind of democracy is this?

An op-ed by Noah Feldman. Do you earn any money outside your state? Whether you’re an NBA player or a lowly lecturer-consultant like some of us, you know the drill: Pay income tax where you earned the money, then get a credit from your home state when you file your return. Unless, that is, you live in Maryland. Maryland refuses to credit residents for part of the money they earn elsewhere, choosing instead to double-tax them. The U.S. Supreme Court now has to decide whether this is constitutional. Depending on the outcome, copycats probably won’t be far behind.

The company's new policy has given hope to both supporters and opponents of efforts by the United Auto Workers to unionize its first foreign-owned plant in the region. The outcome of the union drive at the Chattanooga plant is being closely monitored by other German and Asian automakers in the region, and by Republican officials who dread the prospect of a UAW breaking its losing streak among what the union refers to as the "transplants."...Benjamin Sachs, a labor law professor at Harvard University, said Volkswagen's new policies "could be important to the United Auto Workers' organizing efforts" in Chattanooga. Voluntarily providing access to the plant for meetings, notices and other activities is a departure from the practices of most companies where "the worksite is off limits for union organizing, by and large," Sachs said.

If Congress got what it deserved, the Capitol Dome would never have been permitted to be the backdrop for Tuesday’s Concert for Valor on the Mall honoring Veterans Day. Why? The 535 lawmakers who work there have cravenly dodged their constitutional responsibility to make the tough decision about whether President Obama is right to lead the country into war against the Islamic State in Iraq and Syria...Harvard Law professor Jack Goldsmith, a former special counsel to the Defense Department, said that when he testified before Congress last year, he was stunned by key senators’ lack of knowledge about U.S. military operations, such as drone strikes in Yemen, Somalia and Pakistan. “It was remarkable how little the members of the Senate Armed Services Committee knew about where we were fighting and against whom,” Goldsmith said. “They don’t even know where it’s going on.”

An op-ed by Jacob E. Gersen and Benjamin I. Sachs. Every year, 5.5 million people are sickened by norovirus, a highly contagious gastrointestinal bug. According to the Centers for Disease Control and Prevention, norovirus is the leading cause of food-borne illness in the United States and is spread primarily by “infected food workers.” Last year cooks, waiters and other workers were involved in about 70 percent of the outbreaks. This is just one example of the critical role that food workers play in our nation’s economic and public health systems. And yet, while we often tailor employment rules for work that has a special impact on the public, the law has yet to recognize food workers as a distinct class — an approach that harms consumers, the economy and the workers themselves. Sick restaurant workers provide a particularly vivid example of the kind of legal reform that’s needed.

Considered one of the most important American diplomats of the 20th century, onetime Secretary of State Henry Kissinger visited the Harvard Law School (HLS) campus last week to share some of the lessons learned as adviser to Presidents Richard Nixon and Gerald Ford. A key architect of U.S. foreign policy between 1969 and 1977 and a proponent of realpolitik, Kissinger reflected on his long career with HLS Professor Robert H. Mnookin, Harvard Business School Professor James Sebenius, and Harvard Kennedy School Professor Nick Burns during an afternoon session in crowded Austin Hall on Nov. 6.

In a move that caught many observers off guard, the U.S. Supreme Court last week announced it would review one of four cases currently challenging provisions of the Patient Protection and Affordable Care Act (ACA)...Einer Elhauge, the Carroll and Milton Petrie Professor of Law at Harvard Law School and founding director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, writes frequently about U.S. health care law and is the author of the 2012 book “Obamacare on Trial.” He talked to the Gazette via email about the court’s decision to take up this case, what is at issue, and implications for the ACA should the court rule in favor of the plaintiffs.

An op-ed by Susan Crawford. I keep saying that telecom policy is blood and guts stuff — giant principles of equity, speech, and the importance of free markets run headlong into the extraordinary political powers wielded by Comcast, Verizon, Time Warner Cable, and AT&T. All too often the drama is buried in an avalanche of acronyms and incremental influence. Then came yesterday’s message from President Obama. Here was our best Obama, telling the FCC in plain language that it should consider acting like a regulator. The message actually brought a tear to my eye. It’s the equivalent of the moving part of the war movie when the gruff but effective leader calls his troops to their better selves, reminding them why they’re there in the first place. So although the president sounded like the law-professor-in-chief yesterday (“I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act”), to me it was a General Patton moment. This is a battle cry designed to give heart to his administration — and particularly the corner of the executive branch crouching in terror behind the walls of the FCC.

Because Sen. Ted Cruz loves political journalists and wants them to be happy and get traffic, he responded to President Obama's big net neutrality announcement by tweeting that network neutrality is like Obamacare for the internet...But if Obamacare for the internet isn't a particularly meaningful concept, a public option for the internet is. Susan Crawford, the John A. Reilly Visiting Professor in Intellectual Property at the Harvard Law School, explained the idea to me in an interview.

Harvard Law School visiting Professor Susan Crawford spoke with Morning Edition host Bob Seay about Net Neutrality saying the momentum behind the issue and President Obama's recent support demonstrates the need to give oversight to the Internet. Crawford says, "Net Neutrality isn't about the roads of the Super information Highway or the Internet, it's about the cars."

An op-ed by Noah Feldman. Today's word is linkage. For example, Iran is confirming that, in October, President Barack Obama sent supreme leader Ayatollah Ali Khamenei a letter linking ongoing nuclear talks to the two countries’ joint interests in fighting the Islamic State. At the Supreme Court, linkage is going to be just as important. The U.S. Court of Appeals for the Sixth Circuit last week essentially forced the Supreme Court to decide whether there's a constitutional right to same-sex marriage, by refusing to recognize such a right itself. The next day, the court agreed to hear a potentially fatal legal challenge to the Affordable Care Act. Taken together, these two cases transform the current Supreme Court term into a blockbuster -- and the linkage relationship between them will be all-important.

Every time Gary Katcher sees the article, he feels that his reputation is being dragged through the mud again. It's an article from Forbes, dated Jan. 13, 2012, touching on a lawsuit between him and an ex-partner in his investment firm over a nasty business divorce. The article was accurate, reporting fairly on the claims of wrongdoing exchanged between the former partners during four years of litigation. It eventually was settled in Katcher's favor, but the magazine never ran a follow-up...Options for an American right to be forgotten are beginning to emerge. Jonathan Zittrain, co-founder of Harvard's Berkman Center for Internet and Society, says focusing on search engines "allows for the information itself to remain public, with a question of how to narrow the indexing of it." He also praised an experiment launched by Google years ago, allowing people quoted or mentioned in a news article to append a clarifying comment next to the article on the Google News service. The function doesn't appear to be available any longer.

An op-ed by Noah Feldman. Thought you were done with the U.S. Supreme Court and health care? Think again. The court has agreed to review the question of whether the federally created health insurance exchanges violate the law’s expectation that the exchanges be created by a state. Reading the tea leaves can only tell you so much about what the court is going to do. But from the standpoint of the Barack Obama administration, there is reason to be curiously concerned that the president’s signature legislative accomplishment is in jeopardy once again.

Standing in near-frozen water while guarding a bridge during the notorious Battle of the Bulge in 1945, the infantryman sustained such severe frostbite he almost lost a foot. Evacuated to a hospital in England, he avoided amputation but had serious problems with his feet the rest of his life. When he died in 2008 from a variety of health problems, his widow — who had very little income — applied for a type of benefit for survivors of veterans whose death had resulted, at least in part, from a service-related disability...It took nearly six years and a trip to federal court, but with the help of the Harvard Law School (HLS) Veterans Legal Clinic the widow finally prevailed, winning a monthly payment from the VA that completely changes her financial health....In just two years, more than 30 HLS students have enrolled in the Veterans Legal Clinic — housed at the WilmerHale Legal Services Center (LSC) in Jamaica Plain, with [Dan] Nagin as its faculty director — and represented more than 100 clients in areas of federal and state veterans’ benefits, discharge upgrades, and estate-planning matters.

Many readers were shocked by my recent article about Peter Drier, who received a surprise bill of $117,000 from an out-of-network assistant surgeon who helped out during his back operation. But almost as surprising was how difficult it was during my reporting for Mr. Drier to extract his own records from the hospital...“You should be able to walk into a provider’s office and say, ‘I want a copy’ — you are legally entitled to that,” said I. Glenn Cohen, a professor at Harvard Law School, noting that there were only a few exceptions, such as for prisoners. But the reality is that many hospitals and doctors have created a series of hurdles that must be cleared before patients can get their information. And many of those hurdles, experts say, are based on the economics of medicine...“The medical record is held hostage,” Professor Cohen said. “The reason is often to keep a customer or keep a patient from leaving the practice.”

The aid-in-dying movement may be enjoying a boost from the purposeful death of beautiful 29-year-old Brittany Maynard, but another case across the ocean is emerging as "political kryptonite" — a British mom’s court-backed decision to end her disabled child’s life. ...“Many groups pushing for more end of life options find these kinds of cases to be political kryptonite and want to be able to say ‘that's totally different, not the thing we are talking about,’" said Glenn Cohen, director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “My own sense is that Compassion and Choices and other pro-assisted-suicide legislation groups will only push for (domestic) legislation to govern cases like these once political victories are more secure in the more typical case they are interested in,” Cohen said.

Though her only previous connection to professional basketball came as a longtime Washington Wizards season ticket holder, Michele Roberts believes her connection to the NBA players she now serves as executive director of the National Basketball Players Association has always been much deeper....Harvard law professor Charles Ogletree, a longtime friend, mentor and colleague of Roberts, believes self-assurance is the primary reason she will thrive in “an all-boys club.” “Michele is one of these people who wants to break glass ceilings and create opportunities that never existed before, and I think with her experience as a lawyer, as a fighter for justice, as a woman to push her way in to make sure she’ll be treated equally, she’ll be fine,” Ogletree said in a telephone interview. “I think she’s going to be exceptional in bringing them in and helping them understand that the job is not playing basketball but owning basketball.”

Nearly every effort by Mayday PAC to elect a candidate who favored campaign finance reform in a contested race fell flat on Tuesday. The super PAC to end all super PACs, established in May 2014, was highly successful in raising money but much less so in targeting races it could win. The group reported making $7.5 million in independent expenditures across eight races this year. It won just two. “It was a tough night across the board for supporters of reform, but we’re glad we engaged in this fight," said Mayday's founder, Harvard law professor Lawrence Lessig, in a statement. "The fight to root out corruption in our politics is one of the most important in our time and we will continue to pursue it with fierce urgency,” he vowed.

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.