Media Mentions

…Since the start of the 21st century, a new breed of shareholder—the activist hedge fund—has frequently played a decisive role in interactions between corporations and markets...A major recent study by Lucian Bebchuk, Alon Brav, and Wei Jiang of activist investments from 1994 through 2007 also found five-year improvements in the operating performance of targeted companies.

Harvard Law School Professor Alan Dershowitz condemned Los Angeles Clippers owner Donald Sterling's "very bad" racist comments, but told Newsmax that his greater concern was that "I don't think we want the thought police to be intruding on people's private conversations." "We need to preserve privacy," Dershowitz said in an exclusive interview on Wednesday. "We need to be able to preserve a person's ability to share his thoughts, even if we don't agree with his thoughts, with private people."

Democrat Sen. Edward Markey from Massachusetts says the government should crack down on broadcast messages that promote what he calls hate crimes, by regulating content on television, radio and the Internet...That claim has other First Amendment legal minds howling. “He’s not going to be able to come up with legislation that sufficiently protects the First Amendment,” said Harvard Law professor Alan Dershowitz, Breitbart reported.

A letter by Charles Fried. There is a deep connection between the old news about the rapidly growing wealth gap in this country and the Supreme Court’s decision on Wednesday striking down the longstanding and regularly reaffirmed aggregate limits on how much an individual can give to candidates...If we must be governed by those whom the billionaires choose to fund, then the social contract really has been ruptured. And it is only the five Pollyannas on the Supreme Court who would have us believe that those who have unlimited cash to spend on elections will not call the tune.  

An op-ed by Noah Feldman. Campaign finance law is dying the death of a thousand cuts. Today the U.S. Supreme Court delivered an especially devastating blow in striking down aggregate contribution limits. And the most remarkable part of it is that, under its own logic, the decision made perfect sense because the court said contributions to an unlimited number of candidates does not give rise to the "appearance of corruption."

An op-ed by Lawrence Lessig. At the core of the disaster that is the Supreme Court’s McCutcheon v. FEC decision lies a mistake. A strategic mistake, made by the government. In this mistake, we can see all that’s wrong with modern American constitutional law. From the first moment that this case arose, it has been obvious to everyone that the decision would turn on the meaning of the word “corruption.” Congress has the power to regulate campaign contributions only if it is doing so to regulate “corruption.” So the central question raised by McCutcheon was this: Is a law limiting aggregate contributions a law designed to limit “corruption?”

A paper by John C. Coates and Suraj Srinivasan of Harvard Business School. We review and assess research findings from 120 papers in accounting, finance, and law to evaluate the impact of the Sarbanes-Oxley Act. We describe significant developments in how the Act was implemented and find that despite severe criticism, the Act and institutions it created have survived almost intact since enactment. We report survey findings from informed parties that suggest that the Act has produced financial reporting benefits.

A paper by Lucian Bebchuk and Robert Jackson Jr. of Columbia Law School. We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the corporate-law landscape. Our study examines this subject and concludes that there is a substantial basis for questioning the continued validity of current state-law rules authorizing the use of poison pills.

An op-ed by Mark Roe. Late last month, the Federal Reserve released the transcripts of the Federal Open Markets Committee (the Fed’s monetary-policy-setting body) meetings from the run-up to the 2008 financial crisis. Unfortunately, too many reports on the transcripts miss the big picture. Criticizing the Fed for underestimating the dangers from the underground rumblings that were about to explode makes it seem that particular players just got it wrong. In fact, underestimating financial risk is a general problem – the rule, not the exception.

An op-ed by Noah Feldman. Will the real Slim Shady please stand up? The justices of the Supreme Court might not care much for Marshall Mathers -- assuming they know who he is -- but they share his penchant for studied self-contradiction. Today they decided two cases on the interpretation of treaties based on almost perfectly opposed principles. In one case, involving child kidnapping, the court said the global treaty should not be interpreted as though it were a U.S. law. In the other, which concerned arbitration, the court said that the treaty should be read just as though it were a domestic contract. Huh?

An op-ed by Kelsey C. Skaggs ['16]. The implications of climate change are increasingly well documented: Rising sea levels, more severe storms, and increased food scarcity are just a few….Harvard’s President Drew G. Faust continues to reject student, faculty, and alumni calls to divest our endowment from fossil fuel extraction companies. President Faust’s justification for this rejection is nothing new. It is the same set of arguments that Harvard’s administration made in the 1970s and ’80s in response to student pressure to divest from companies that supported the South African apartheid regime.

An op-ed by HLS Visiting Professor Lorie Graham. "Does it stay on all the time or does it come off?" Ahmed asked from his hospital bed, frowning at the thought of a prosthetic leg. "I want one that doesn't come off." These are the words of a 12-year-old boy, an innocent victim of a brutal regime and an international system that has in too many ways failed the people of Syria. My own 13-year-old, reading these words in the newspaper, asks whether there is something that can be done to help. I begin my usual "It's complicated" — there are legal constraints, there is the lack of political will — but seeing the look in my son's eyes, I say instead, "Yes there is."

A book review by Adrian Vermeule. In the era of a polarized and stymied Congress, in which legislation is especially prone to be paralyzed by the filibuster and other supermajority devices, Melissa Schwartzberg’s new study of supermajority rules could not be more timely. In another sense, it could not be less timely: Schwartzberg generates her insights by recovering the origins of voting, majority rule, and supermajority rule in pre-modern polities. Her findings suggest that supermajority rule ought to be suspect in a polity otherwise committed to democratic principles of equal political dignity among voters.

An op-ed by Susan Crawford. David Cohen, Comcast Corp.'s executive vice president and the mastermind behind its deal to buy Time Warner Cable Inc., sounded pugnacious and confident on a recent conference call with investors. Regulatory and antitrust approval of the deal, he says, will happen within the next nine to 12 months. But even Cohen had to acknowledge that the public might be worried about the power of this combination. "It may sound scary," he said. Indeed it does.

Jody Freeman in Scotusblog. In this comment I make two claims about the greenhouse gas cases that may seem controversial but should not be.  First, from a practical perspective, the cases are, at this point, of limited significance…Second, the EPA might have averted this particular legal challenge had it been somewhat more risk averse initially.

An op-ed by Lawrence Lessig. As we started the 185-mile trek from Dixville Notch to Nashua, there were certain things that I knew. I knew that our system of government had become corrupt. That the system—not necessarily any individuals, but all the individuals together—had been contorted into a shape that makes it impossible for government to address even the most fundamental and important issues sensibly…For seven years, I’ve been speaking about it. In lectures across the country and across the world, some small, some very large, I’ve been developing a way to explain it, using slides and stories that aim to bring people of all sorts to this view: that this corruption may not be the most important issue. But it is the first issue that we, as a nation, have to solve. And that until we solve it, we will solve nothing else, sensibly.

An op-ed by Elizabeth Bartholet. Since the mid-1990s, United States law has prohibited any effort to keep children within same-race families and prevent transracial adoption. Congress will not go back on this law, the Multiethnic Placement Act. The racial matching regime outlawed by MEPA was aberrational – inconsistent with our nation’s constitutional and legal tradition making any use of race highly suspect. Racial matching failed to meet the narrow affirmative action exception to that tradition: It hurt rather than helped black children, by locking them into foster care and denying them available nurturing homes.

An op-ed by Cass Sunstein. In a recent essay in the New Republic, Princeton University historian Sean Wilentz contends that Edward Snowden, Glenn Greenwald and Julian Assange reflect a political impulse he calls “paranoid libertarianism.” Wilentz claims that far from being “truth-telling comrades intent on protecting the state and the Constitution from authoritarian malefactors,” they “despise the modern liberal state, and they want to wound it.”…Societies can benefit a lot from paranoid libertarians. Even if their apocalyptic warnings are wildly overstated, they might draw attention to genuine risks, or at least improve public discussion. But as a general rule, paranoia isn’t a good foundation for public policy, even if it operates in freedom’s name.

An op-ed by Jack Goldsmith: David Sanger and Thom Shanker have a lengthy story in the New York Times about various National Security Agency techniques for penetrating foreign computers and networks, including a strategy for accessing seemingly air-gapped computers. … [T]his article shows how much publication norms have changed in recent years. (Sanger and Shanker note that the NYT did not publish some of the details in the current story when it reported on cyber attacks on Iran in 2012.)

An op-ed by Cass Sunstein. Robert Gates has been an extraordinarily distinguished public servant. A recipient of the Presidential Medal of Freedom, he has worked for eight presidents, serving as defense secretary under both President George W. Bush and President Barack Obama. The nation owes him a deep and enduring debt of gratitude. But his new memoir, “Duty,” raises troubling ethical questions.

An op-ed by Noah Feldman: I wouldn't believe it if I weren't sitting here in Tunisia's parliament building. But I just watched the nation's constituent assembly adopt, 116-40 with 32 abstentions, an amendment to its draft constitution requiring the government to create parity for women in all legislative assemblies in the country, national as well as local. After the vote, the assembly and audience stood up spontaneously and sang the national anthem. There wasn't a dry eye in the house -- including mine.