A selection of analyses and opinions from Harvard Law School experts.
An op-ed by Jody Freeman. President Obama is expected to announce his much anticipated rule for power plants on Monday, requiring for the first time that older and dirtier plants reduce their carbon dioxide emissions, which account for a sizable share of the nation’s carbon pollution. This new rule has rightly been called the “cornerstone” of the president’s climate action plan. If successful, it has the potential to transform the nation’s power sector by driving new investments in efficiency and renewable energy, and by increasing the use of cleaner natural gas in place of coal.
An op-ed by Mark Roe. Can GM run from its bad cars? GM’s faulty ignition switches killed people. As a matter of ethics and public relations, GM should stand behind its cars. But does bankruptcy law require it to do so? Technically, no. Bankruptcy law says that an “old GM” was sold to a “new GM” and the “new GM” excluded product liability from the debts it picked up in the sales agreement. But it’d take a bankruptcy expert to know the difference between the old and the new GM; GM today is the same organization as the one that put the bad switches into is cars and, the media reports, knew about it years ago.
An op-ed by Noah Feldman. On the surface, the Supreme Court’s death penalty holding today seems like a win for rationality and smart statistics. The 5-4 decision in Hall v. Florida said the state may not use an absolute cutoff of 70 on the IQ test as its measure of intellectual disability, below which a murderer cannot be executed — because the standard error of measurement on the test is five points plus or minus…On closer examination, though, the decision is less satisfying than it appears.
An op-ed by Robert D. Truog, I. Glenn Cohen, and Mark A. Rockoff. In an opinion dissenting from a Supreme Court decision to deny review in a death penalty case, Supreme Court Justice Harry Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.” In the wake of the recent botched execution by lethal injection in Oklahoma, however, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project has published a sweeping set of 39 recommendations that not only tinker with, but hope to fix, the multitude of problems that affect this method of capital punishment.
An op-ed by Mark Roe. Since the global financial crisis, regulators have worked hard to make the world’s big banks safer. The fundamental problem is well known: major banks have significant incentives to take on excessive risk. If their risky bets pay off, their stockholders benefit considerably, as do the banks’ CEOs and senior managers, who are heavily compensated in bank stock. If they do not pay off and the bank fails, the government will probably pick up the tab. This confluence of economic incentives to take on risk makes bank managers poor guardians of financial safety. They surely do not want their bank to fail; but, if the potential upside is large enough, it is a risk they may find worth taking.
An op-ed by Nancy Gertner. Anyone of a certain age remembers Willie Horton. Furloughed in 1986 from a life sentence for murder, Horton, who is black, raped a white woman and assaulted her fiancé. But Horton’s legacy extends beyond the horrific crime he committed. Many have blamed Governor Michael Dukakis’s failed presidential bid that year on publicity surrounding the case. Less often discussed is how far Horton’s crime set back criminal justice reform in Massachusetts — and still does to this day.
An op-ed by Charles Fried and Laurence H. Tribe. Although the two of us frequently approach legal questions from different perspectives, and just as often disagree about the best answers to those questions, we share a respect for our Constitution and a reverence for the judicial process. That’s why, in spite of our disagreements, we agree that Harvard Law School professor David Barron is exceptionally well-qualified to hold a seat on the US Court of Appeals for the First Circuit and that the Senate should promptly confirm him.
An op-ed by Noah Feldman. Outside of “24,” the Federal Bureau of Investigation doesn’t usually interrogate a suspect who’s just been shot in the head, pumped full of opioids and shackled to his hospital bed. But that’s what happened to Dzhokhar Tsarnaev on April 20 — and the questioning, by the FBI’s high-value interrogation group, went on with breaks all night and again the following night. Tsarnaev’s jaw was wired shut, one of his eyes was sutured closed, but he communicated via notepad and repeatedly asked for a lawyer. Not only was one not provided, but lawyers sent by the federal and state public defenders to represent Tsarnaev were turned away at the hospital door. Now his lawyers say his statements during that questioning should be excluded at trial, planned for November.
An op-ed by Jonathan Zittrain. The European Court of Justice ruled on Tuesday that Europeans have a limited “right to be forgotten” by search engines like Google. According to the ruling, an individual can compel Google to remove certain reputation-harming search results that are generated by Googling the individual’s name. The court is trying to address an important problem — namely, the Internet’s ability to preserve indefinitely all its information about you, no matter how unfortunate or misleading — but it has devised a poor solution. The court’s decision is both too broad and curiously narrow.
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 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 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 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.)
Four of the world’s most important financial regulators – the Bank of England, Germany’s Federal Financial Supervisory Authority (BaFin), the US Federal Deposit Insurance Corporation, and the Swiss Financial Market Supervisory Authority – recently asked the world’s derivatives industry to change the way it does business. The question now is whether the regulators can make that happen with a request, as opposed to something more substantial. That will not be easy.