Media Mentions

An op-ed by Noah Feldman. Ever tried whitening your own teeth? How’d that work out for you? In North Carolina, you probably wouldn’t even have had the option. In the middle of the 2000s, the North Carolina State Board of Dental Examiners systematically hounded non-dentist teeth-whitening operations out of operation -- and effectively blocked the sales of teeth-whitening agents. Now the Supreme Court will decide whether this was an antitrust violation, as the Federal Trade Commission ruled, or whether the board’s status as a quasi-official North Carolina agency means its campaign was out of the commission’s reach.

This August, Columbia University released a new policy for handling “gender-based” misconduct among students. Since April, universities around the country have been rewriting their guidelines after a White House task force urged them to do more to fight sexual assault. I was curious to know what a lawyer outside the university system would make of one of these codes. So I sent the document to Robin Steinberg, a public defender and a feminist. A few hours later, Steinberg wrote back in alarm. She had read the document with colleagues at the Bronx legal-aid center she runs. They were horrified, she said—not because Columbia still hadn’t sufficiently protected survivors of assault, as some critics charge, but because its procedures revealed a cavalier disregard for the civil rights of people accused of rape, assault, and other gender-based crimes...“We need to take into account our obligations to due process not because we are soft on rapists and other exploiters of women,” says [Janet] Halley, but because “the danger of holding an innocent person responsible is real.”

...The difference between Goodell and the rest, though, is that he runs a nonprofit. That’s right—the National Football League is, in the eyes of the Internal Revenue Service, a nonprofit...“We are subsidizing this institution that has been so incredibly obtuse about the issues of sexual violence,” says Lawrence Lessig, the director of the Edmond J. Safra Center for Ethics at Harvard University and the founder of Rootstrikers, a grassroots advocacy group that has campaigned against the exemption. “The American public obviously likes sports and football, but when you’re in a clearly commercial context, when an enormous amount of money is being made, the idea that you would be subsidizing it is craziness.”

An op-ed by Cass R. Sunstein. Winter is coming, and you might be tempted to start buying warm clothes, especially on the first day the temperature drops drastically. If so, be careful: You might purchase something you don't really want. According to standard economic theory, of course, that warning shouldn't be necessary. Human beings are rational, and on an especially cold day, it’s perfectly rational to get that winter coat. Psychologists and behavioral economists aren’t so sure. They've seen that when people are cold, they often project that feeling onto the future. People display “projection bias” when they underestimate how much their current tastes and values will later change.

It’s been just three weeks since Gov. Jerry Brown, D-Calif., signed the nation's first “affirmative consent” — or “yes means yes" — law, yet already lawmakers across the country are copying it....Shulevitz also spoke with Harvard Law School professor Janet Halley, who teaches feminist legal theory. Halley said the notion that universities play investigator, prosecutor, judge, jury and executioner is “fundamentally not due process.”

It’s not every day that Wall Street comes out and celebrates a change that erodes its rights in a lucrative market. On the surface, the applause for the change, which was agreed upon this past weekend, didn’t make sense. Why would the banks back something that could lessen their longstanding privileges in one of their most profitable businesses — derivatives trading?...Mark J. Roe, a professor at Harvard Law School, said that the contract overhaul was in some ways a good thing because it would most probably lead to a more orderly winding-down of large banks. But he also argued that the advantages that derivatives continue to enjoy could, over time, reduce the strength of the market...“On that dimension, it doesn’t make us better off, and that’s an important dimension,” Mr. Roe said. “The bottom line is that this chips away at too-big-to-fail, but too big to fail is still big.”

A letter by Ronald S. Sullivan Jr. Adrian Walker is absolutely right that Boston needs an honest discussion about race and policing in Boston (“Police bias or faulty finding?” Metro, Oct. 10). But he’s wrong to begin that discussion by criticizing the American Civil Liberties Union for disclosing evidence that the Boston Police Department engaged in racially discriminatory policing...While I share Walker’s optimism that current BPD leadership is committed to change, the alarming findings in the report call for real reform, not for shooting the messenger.

Two Silicon Valley giants now offer women a game-changing perk: Apple and Facebook will pay for employees to freeze their eggs...“Would potential female associates welcome this option knowing that they can work hard early on and still reproduce, if they so desire, later on?” asked Glenn Cohen, co-director of Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, in a blog post last year. “Or would they take this as a signal that the firm thinks that working there as an associate and pregnancy are incompatible?”

John P. Carlin, U.S. assistant attorney general for national security, spoke and answered questions about cyber threats and the Department of Justice’s continued efforts to fight terrorism Friday at Harvard Law School...The event was moderated by Law School professor Jonathan L. Zittrain, who serves on the board of directors for the Electronic Frontier Foundation and the NSA’s advisory board.

Congress does not hide elephants in mouse holes. That colorful legal concept — which means government agencies can’t find sweeping new powers by re-interpreting minor sections of existing law — may determine the success or failure of proposed EPA power-plant regulations, rules that some observers have described as the nation’s most ambitious action on climate change to date...“It’s a beautiful rule. It is incredibly creative. The question is, Is it legal?” said Richard Lazarus, the Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School (HLS)...In a discussion on the proposed regulations Wednesday at the Maxwell-Dworkin building, Lazarus and Archibald Cox Professor of Law Jody Freeman, director of HLS’ Environmental Law Program, said that the proposed rules not only step into the gap created by Congress’ refusal to pass climate legislation, but also have the potential to both transform the national energy scene and invigorate international climate-change negotiations.

An op-ed by Noah Feldman. The worst fight between justices in the modern history of the U.S. Supreme Court grew out of a dispute about whether coal miners should be paid for the time it took them to travel thousands of feet up and down a mine shaft to do their jobs. The bitter interpersonal war it generated between Justice Hugo Black and Justice Robert Jackson started in 1945 and reached its climax in 1946, when their dispute hit newspapers' front pages and cost Jackson the chief justiceship. So you'd think the question of what activities count as part of the workday would've been solved by now, 70 years later. You'd be wrong. In Integrity Staffing Solutions v. Busk, the Supreme Court is hearing arguments in a dispute between an Amazon.com contractor and its employees about whether workers should be paid for time spent going through security checks to make sure they haven't stolen from the warehouse on the way home.

An op-ed by Susan Crawford. Three years ago, cable titan John Malone -- chairman of Liberty Global, the largest cable company in the world -- said that when it comes to high-capacity data connections in the U.S., "cable’s pretty much a monopoly now." Last month, Federal Communications Commission Chairman Tom Wheeler proved Malone's point: For high-capacity wired data connections to the Internet, Wheeler said that more than 80 percent of Americans have just one choice -- their local cable company. The cable companies long ago divided the country among themselves, and it's about to get worse. A proposed $45 billion merger between Comcast and Time Warner Cable would strengthen the industry's near-monopolistic power. If the merger goes through, the chances of fiber competition emerging to challenge cable's dominance become even lower than they already are.

While students active in the queer community said that they welcomed the Supreme Court’s decision Monday to let lower court judgments allowing gay marriage stand, some said that they worried that the issue of same-sex marriage overshadows other concerns of the BGLTQ community...Harvard Law School professor Michael J. Klarman said that he was surprised that the Court opted to uphold the lower court rulings rather than hear the case. He added that public support for same-sex marriage has been on the rise in recent years. “The future seems pretty clearly inevitable, in that [public] opinion is going to move in the direction of gay marriage even if the Court doesn’t intervene,” Klarman said.

American public schools rely on a funding system that is rife with inequalities, experts said during a panel at the Graduate School of Education on Thursday. “Our goal is easy to articulate and hard to get there. It is to make sure every child in this country has access to world-class education. Race, socioeconomic status, zip code, and neighborhood shouldn’t matter,” said forum moderator Susan E. Eaton, research director at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, quoting U.S. Secretary of Education Arne S. Duncan '86.

When is a war not a war? Does it matter, when a bomb is dropped or a missile launched, whether it’s called “counterterrorism,” or “armed conflict,” or “hostilities”?...The administration has also said its actions are a legal response to the threat because Syria is "unwilling or unable" to fight the Islamic State itself. Naz Modirzadeh, founding director of the Harvard Law School Program on International Law and Armed Conflict, called that concept an example of "folk international law." Established law, she wrote Thursday on the Lawfare blog, includes no such distinction for violations of sovereignty.

An op-ed by Noah Feldman. Class action lawsuits are big business. The U.S. Chamber of Commerce -- admittedly, not the most objective source -- estimates that securities class actions alone cost shareholders $39 billion a year. When you add in all other class actions -- for accidents, accounting errors, you name it -- you can understand why potential corporate defendants as well as plaintiffs’ lawyers fight tooth and nail over every inch of the legal terrain. When the U.S. Supreme Court takes up an important question of how these class actions will proceed, as it is doing in the case of Dart Cherokee Basin Operating Company LLC v. Owens, it's worth taking notice of what the court is doing -- and why.

There's a "food fight" going on in Colorado, one that will appear on the ballot that gets mailed to you next week. Prop 105, one of four statewide ballot questions, would require labeling of some genetically modified food...Another expert told us that Colorado could run into trouble if it wished to require GMO labels on food products merely passing through Colorado on the way from one state to another, but that the state could require GMO labels on all foods produced here, regardless of whether it was intended for export out of Colorado. "The products are produced by and in Colorado and I know of no principle of federal law that would preclude such a law," replied Jacob Gerson, a professor of law with Harvard.

Harvard Law School Dean Martha Minow spoke at the Court of Appeals in Albany Monday during the fifth annual hearing on civil legal services. It was the last of four hearings that started in September to highlight the civil legal needs of low-income New Yorkers. Minow advised New York officials to consider public libraries as potential places to dispense civil legal services.

Tens of thousands of mental patients and troops unknowingly became malaria test subjects during the 1940s — part of a secret federal rush to cure a dread disease and win a world war, according to a book published Tuesday that exposes vast, previously unknown breaches of medical ethics...“The Malaria Project” — operating via the same covert White House machinery that drove the Manhattan Project — tasked doctors with removing malaria from naturally exposed U.S. troops then injecting those strains into people with syphilis and schizophrenia, reports author Karen Masterson, who researched files at the National Archives...“There are no easy answers,” agreed I. Glenn Cohen, a Harvard Law School professor specializing in medical ethics. "But in trying to reach an answer on a particular case, here is how I look at it: avoid hindsight bias; determine whether the study violated contemporaneous research ethics rules not whether it offends our current understandings," Cohen said. "In this case, it likely violated even contemporaneous rules."

Last spring, Lawrence Lessig, a fifty-three-year-old Harvard legal theorist who opposes the influence of money in politics, launched a counterintuitive experiment: the Mayday PAC, a political-action committee that would spend millions of dollars in an attempt to elect congressional candidates who are intent on passing campaign-finance reform—and to defeat those who are not. It was a super PAC designed to drive its own species into extinction. Lessig adopted the motto “Embrace the irony.”

An op-ed by Cass R. Sunstein. Remember George Plimpton’s classic book, "Paper Lion"? In the 1960s, Plimpton decided to find out what would happen if an ordinary person tried to play professional football. Amazingly, the Detroit Lions agreed to give him a tryout, allowing him to come to training camp as a third-string quarterback. The result? Disaster...A few days ago, I followed in his footsteps. Not, thank goodness, on the football field. My sport is squash -- played with a racquet and a small ball in an indoor court.