Media Mentions

An op-ed by Laurence H. Tribe: The United States Supreme Court has said that “the constitutional right of free expression is powerful medicine.” Powerful and essential, and it needs to be administered to everyone, including physicians and those regulating their practice. Recent decisions by two federal appeals courts suggest, to the contrary, that the doctor’s office is becoming a First Amendment-free zone…Still, both judicial opinions are troubling for the same reason: They broadly paint medical care as “conduct,” not “speech,” and thereby entirely exempt occupational-licensing laws from the usual First Amendment scrutiny.

An op-ed by Annette Gordon-Reed. For a founding father who usually took a sunny view of his nation’s prospects, it was a darkly pessimistic prophesy. In his Notes on the State of Virginia, Thomas Jefferson argued that if – as he hoped – America’s black slaves were one day set free, the result would be conflict and an inevitable descent into racial war. And in the hours after Governor Jay Nixon imposed a night-time curfew on the Missouri town of Ferguson following the killing there of an unarmed teenager by a police officer earlier this month, it is indeed reasonable to wonder whether a form of war (sometimes hot, sometimes cold) has been waged against blacks in America from Jefferson’s time until our own.

Harvard law professor Charles Ogletree is calling for the arrest of the police officer who shot and killed 18-year-old Michael Brown in Ferguson, Missouri, on Aug. 9. Appearing Sunday on Meet the Press, Ferguson commented after host Andrea Mitchell noted that police still have not released details of the shooting, including whether Brown was shot at close range and where he was shot…NBC News has this transcript. Ogletree agreed that information is critical. “And I think the first thing that needs to happen,” Ogletree continued, “we need to arrest Officer Wilson. He shot and killed a man, shot him multiple times. And he's walking free. No one knows anything about him, no one knows why he did it. We need to have that done, number one.” Second, he said, was the need for increased dialogue.

An unarmed black teenager shot dead on a Missouri street. A distraught community protests the killing at the hands of a white police officer. Violent clashes follow between protesters and police, who use tear gas, rubber bullets, and wooden pellets…“It’s an outrageous shooting,” said Charles Ogletree Jr., a Harvard Law School professor. “People have just had enough and are not yet over what happened with Trayvon Martin,” an unarmed black youth killed two years ago by a Florida crime watch volunteer. Ogletree, who is black, called for continued rallies but without the violence of Wednesday night, when protesters hurled Molotov cocktails at heavily armed police in Ferguson, Mo. “There needs to be a lot of noise — nonviolent but forceful — to make it known that we can’t afford to lose another black child,” Ogletree said.

An op-ed by Noah Feldman. The government would have to overcome major legal hurdles to charge John Hinckley Jr. in the murder of James Brady some 30 years after the fact. But if that were the morally right thing to do, it would be worth trying, despite the improbability of success. Is it? The answer is no -- but not for the reasons you might think. It doesn’t have to do with Hinckley’s guilt or Brady’s heroism or Ronald Reagan’s presidential status. The reason not to prosecute Hinckley lies in the kind of criminal justice system we want to have: one that doesn’t seek solely to punish the guilty, but rather to punish the guilty subject to the requirements of basic fairness.

An op-ed by Joseph E. Hamilton `16. On May 15, 2013, Ken Ward and Jay O’Hara anchored their lobster boat in the shipping channel off the Brayton Point Power Station in Somerset. Flying an American flag and a banner reading “#coalisstupid,” the two men blocked the delivery of 40,000 tons of Appalachian mountaintop coal to New England’s largest coal-burning power plant for a day. At their trial, scheduled for Sept. 8 in Fall River District Court, Wood and O’Hara face charges of disturbing the peace, conspiracy, and motorboat violations. Although conviction could result in nine months of jail time, they’ll admit to everything. They’ll argue that it’s really climate change and the government’s ineffective policies that should be on trial. Then they’ll ask the jury to find them not guilty by reason of “necessity.” This trial will mark a pioneering invocation of the necessity defense, the longstanding legal doctrine that it is acceptable to commit a crime if you are preventing a greater harm.

Harvard law professor and leading campaign finance reform advocate Lawrence Lessig called on supporters of his anti-corruption super PAC to help fund the campaign of Zephyr Teachout, the Democratic primary challenger to New York Gov. Andrew Cuomo. "I’m writing today to ask you to support someone who I believe is the most important anti-corruption candidate in any race in America today -- Zephyr Teachout, running for Governor in New York," Lessig wrote in an email blast to supporters of his Mayday PAC.

An op-ed by Cass R. Sunstein. “The reason Milton wrote in fetters when he wrote of Angels and God, and at liberty when of Devils and Hell, is because he was a true Poet and of the Devil's party without knowing it.” So said the poet William Blake, referring to the way, in John Milton’s "Paradise Lost," Satan steals the show. Ron Perlstein, author of "The Invisible Bridge: The Fall of Nixon and the Rise of Reagan," is not a poet, but he is an excellent nonfiction writer. And while he knows that Ronald Reagan is nothing like the devil, he is not exactly in Reagan’s political camp. Yet when discussing Jimmy Carter, Richard Nixon and Gerald Ford, Perlstein writes in fetters. As soon as Reagan appears, the author is at liberty, and his prose soars.

More than a decade ago, when corporate inversions first came under scrutiny, a group of leading New York tax lawyers took a principled stand and called for urgent action to stop these deals….The deafening silence on the policy of inversions comes at a time when tax partners at corporate firms face mounting pressure to boost their revenues. “Because of the highly competitive legal environment, tax lawyers at major firms increasingly feel less free to speak their mind on tax policy issues than they did in the past,” says Stephen Shay, a professor at Harvard Law School who was a tax partner at Ropes & Gray for 22 years…Shay points out that the inversion discussion today is more complex than in 2002, when the deals under attack were more aggressive. Back then, companies could do a “naked inversion” by simply creating a foreign shell in a tax haven like the Cayman Islands.

Few states in the nation are worse than Maine when it comes to Internet connectivity and reliability. But today, a town on the mid-coast flipped the switch on its own ultra-fast Web hook-up. The municipally-owned, fiber optic network, serving parts of Rockport, immediately makes Maine an unlikely leader in the push for greater access to high speed Internet service. Fewer than 25 percent of all U.S. consumers have access to the highest speed Internet service, which runs on fiber optic networks. "There is no infrastructure question more important to the future of the United States," says Dr. Susan Crawford, Harvard Law School professor and co-director of the university's Berkman Center for the Internet & Society.

An op-ed by Susan Crawford. Rockport, Maine, population 3,321, is trying to solve the existential dilemma of small-town America: How do you get people like Meg Weston's students to stick around?…The town's Internet access connection didn't have enough room to handle the school's demands, and private companies would charge too much to be a realistic option. That is, until this week, when Rockport opened its own gigabit-scale municipal fiber optic network -- meaning it can transmit a thousand megabits of data a second.

…Alexander “AJ” Betts Jr. attempted suicide in July 2013, the Des Moines Register reported at the time. He died shortly thereafter. Betts’s mother said he had been outed as gay about a year and half before his death.…Before he died, Betts had a request: Donate my organs. A 14-year-old boy received Betts’s heart, according to a letter Moore received, but she said his eyes were rejected…In the Journal of the American Medical Association, Glenn Cohen, a bioethics law professor at the Harvard Law School, wrote that the United States should repeal the rules about blood. “We think it’s time for the FDA to take a serious look at this policy, because it’s out of step with peer countries, it’s out of step with modern medicine, it’s out of step with public opinion, and we feel it may be legally problematic,” he told CBS. Cohen notes some contradictions in the FDA blood ban: Men who have sex with HIV-positive women or sex workers are banned for only a year.

Harvard Law School professor Laurence Tribe on Thursday signed on as an adviser to Students Matter, the group that won a lawsuit in June striking down California’s teacher tenure law. Adding the liberal Tribe to its roster continues the momentum of the group that has sought to redefine teacher tenure as harmful to poor and disadvantaged young people.

In recent years, a number of U.S.-based corporations with significant international holdings have shifted their headquarters overseas in an attempt to lower their tax bills. The process, known as corporate or tax “inversion,” is designed to avoid America’s high corporate tax burden. At 35 percent, the U.S. nominal corporate tax rate is highest among member nations in the Organization for Economic Cooperation and Development (OECD)…[Harvard Law School Professor Mihir] Desai spoke with the Gazette via email about the factors driving the practice of tax inversion, and also provided links to research around the topic.

Marshals arrested the only woman on their 15 Most Wanted list Wednesday, bringing to an end a five-year search for Janet Barreto and her husband, Ramon Barreto – both accused of severe abuse of children they had adopted abroad, including a two-year-old girl who died as a result…But in general, “abuse and neglect is far more likely to occur in families where the children are the biological children than it is to occur in adoptive families,” says Elizabeth Bartholet, a Harvard law professor who studies child abuse.

Harvard Law professor Laurence Tribe talks about his new book, Uncertain Justice: The Roberts Court and the Constitution, which is a forensic look at the Supreme Court under Chief Justice John Roberts and the dynamics among the nine "supremes."

How to make sense of the U.S. Supreme Court? “Judicial opinions…can defy easy comprehension,” write Loeb University Professor Laurence Tribe, who often argues cases there, and Joshua Matz, J.D. ’12, in Uncertain Justice: The Roberts Court and the Constitution (Henry Holt, $32). “It doesn’t help that in controversial cases, the Court frequently erupts in a confusing cacophony of competing writings. Nor do its opinions always offer a comprehensive and transparent view of the Court; sometimes they are downright misleading.” They attempt to deal with the uncertainties. From the prologue: H. L. Mencken reputedly said, “For every complex problem, there is a solution that is simple, neat, and wrong.” Understanding the Supreme Court undoubtedly qualifies as a “complex problem.”

The Obama administration is exploring a range of possible weapons in the tax code to try to deter companies from relocating overseas for tax purposes through so-called inversion mergers…But the White House's position was upended in part by Harvard Law School Professor Stephen Shay, a former administration official who wrote an article on July 29, 2014, for Tax Notes, an influential publication in tax circles. In it, he outlined how the administration could change the tax code to "take the tax juice out of corporation expatriations." "I just started asking the question, 'What could be done with regulation rather than legislation,'" said Mr. Shay. His thoughts quickly reverberated at the top M&A firms and among officials in Washington. To clamp down on the benefits of inverting, he suggested, the Treasury could take aim at multiple parts of the tax code.

Harvard Law School professor Stephen Shay may have single-handedly crashed the corporate inversion party. The U.S. Treasury Department has in recent days begun weighing how it could use its power to write regulations that would eliminate some of the key economic benefits U.S. corporations get when they acquire a non-U.S. company. Mr. Shay, who served for seven years in the Treasury during two different administrations and spent 22 years as a tax partner at Ropes & Gray LLP, appeared to be the first person to make the government aware of its powers to crack down on the advantageous tax treatment of inversions in an article published on July 29, 2014 in Tax Notes, a publication closely followed by tax professionals. “I just started asking the question, ‘What could be done with regulation rather than legislation’,” Mr. Shay said in an interview.

The Supreme Court issued a remarkable number of unanimous decisions last term, and in their public remarks the justices seemed unanimous in saying that unanimity was a good thing. But is it? A new study from Cass R. Sunstein, a law professor at Harvard, concluded that all of the usual reasons for seeking common ground were open to question. “The arguments in favor of higher levels of consensus,” he wrote, “rest on fragile empirical foundations.”

…The 6th Circuit Court of Appeals is scheduled on Wednesday to hear six cases from four states — Michigan, Tennessee, Kentucky and Ohio — where federal judges have ruled in recent months in favor of gay couples seeking marriage rights. Prior to the persistent string of pro-gay decisions, many legal experts agreed that Campbell’s view might draw some anti-gay rulings. Harvard Law professor Michael Klarman, a same-sex-marriage proponent, saw Kennedy’s opinion in Windsor as unclear and noted that it’s still likely more-conservative federal judges will rule differently, perhaps even at the 6th Circuit, where two of Wednesday’s three panelists were appointed by President George W. Bush. “I would guess that when the cases from the Deep South get decided, the chances will increase that some of the rulings will go against gay marriage,” Klarman said.