Charles Fried

Despite the years that have since passed, many of Elizabeth Warren’s former students at Harvard Law School share the same distinct memory: it was their very first day at the prestigious institution, and for many, their very first class. ...Years later, when clips of Warren grilling corporate CEOs and cabinet officials from the US Senate went viral, her former students would fire off emails and texts to one another joking about what it was like to be at the receiving end. “We could all empathize with the witness in the hot seat,” said Andrew Crespo, a former student of Warren’s who is an associate professor at Harvard. ... Her research in bankruptcy law – and the impact on the average person’s medical bills, mortgage payments and other installments – led Warren to become a leading expert on the subject and rise in the academia world. “These are the issues she still cares about,” said Charles Fried, a professor at Harvard Law School who helped recruit Warren to its faculty. “I think she is extraordinary for this reason, that she got into politics because she cared about some issues. ... “When we brought her to Harvard, no one had a clue that she thought of herself as Native American,” said Laurence Tribe, the school’s professor of constitutional law.“I think she’s had an unfair rap,” he added. “I don’t think it’s the case that she ever exploited her family’s background or ancestry in a way that some people seem to think she did.”

...The Federalist Society, a conservative and libertarian organization designed to counter “orthodox liberal ideology” within the American legal system, has built a sizable web of chapters in cities and law schools across the U.S. — including at Harvard Law School...In the Trump era, though, the Harvard Law chapter is maintaining its distance from the controversial president. Instead, the group is centering its focus on campus and on providing a space for students who find themselves at odds with Harvard’s liberal-leaning legal luminaries...Law School Professor Charles Fried said that, when the society first came into being, it primarily served as a community for students who fell to the right on the political spectrum. Fried said he has been involved with the Harvard chapter for decades...Annika M. Boone, third-year Law student and president of the Harvard Federalist Society, said the chapter mainly focuses on bringing in speakers for debates. “First and foremost, we’re a debating society,” Boone said. “Those were our earliest roots when we got founded, gosh, about 40 years ago.”

...In the new book “Tough Cases,” 13 trial judges from criminal, civil, probate, and family courts wrote candid and poignant firsthand accounts of the trials they can’t forget, giving readers a rare glimpse into their chambers. The book was the subject of a lively discussion at a panel sponsored by the Harvard Law School Library...“I don’t think I had ever really heard judges speak or write publicly about their thought processes and their tough cases the way this book captures,” said Andrew Crespo ’05, J.D. ’08, an assistant professor of law at Harvard Law School (HLS) and one of the panelists...Charles Fried, the Beneficial Professor of Law, said trial judges bear a heavy burden, not only because their work is lonely but because they have to steer their way through all facets of the human condition...For retired judge and HLS lecturer Nancy Gertner, “Tough Cases” reveals the challenges judges face and the need for the public to learn about them.

A letter by Charles Fried. Let’s stipulate that Dr. José Baselga is a brilliant and innovative cancer doctor; that his work has helped thousands; and that in his research, clinical work and advice to others in the field he has been motivated only by the desire to advance knowledge and to cure millions...But I would ask another question: Why isn’t $1.5 million enough?

The 60-plus Harvard Law School professors who filed into an auditorium-style room on the first floor of Pound Hall on that February 1993 afternoon had a significant question to answer: Should they offer a job to Elizabeth Warren?...The Globe examined hundreds of documents, many of them never before available, and reached out to all 52 of the law professors who are still living and were eligible to be in that Pound Hall room at Harvard Law School...“By the unwritten rules that most schools played by at the time, none of this should have happened,” explained Bruce Mann, Warren’s husband of 38 years, who joined her for the interview with the Globe. “Law faculties hired in their own image. . . except for those rare occasions when someone came along that was just so stunningly good that they couldn’t ignore her.”...She dazzled Andrew Kaufman, a Harvard Law School professor who recalled meeting her at a conference she organized at the University of Wisconsin Law School in the mid-1980s. “I was blown away,” Kaufman said, recalling his first interaction with Warren. “I thought she was a real whiz.”...“The views had a lot to do with the methodology she was using,” recalled David Wilkins, a Harvard Law professor who voted to offer Warren a job. “Was it the right methodology?” ...“She was not on the radar screen at all in terms of a racial minority hire,” [Randall] Kennedy told the Globe. “It was just not an issue. I can’t remember anybody ever mentioning her in this context.”...“It had nothing to do with our consideration and deliberation,” said Charles Fried, the former solicitor general to president Ronald Reagan and a member of the Harvard Law School appointments committee at the time. “How many times do you have to have the same thing explained to you?”

An op-ed by Philip Heymann and Charles Fried. Dear Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein: Our experience over many decades of working in the Department of Justice tells us that a career service — sometimes called a civil service system — plays an essential role in our justice system. It often provides the necessary conditions of wise policy: the knowledge of history and of operations in each of a multitude of areas regulated in some way by federal law; the awareness of the stakes and beliefs of those private citizens who work in those areas; the integrity to tell the truth as a career official sees it, and to do that without political spin; and the independence to speak frankly even when disagreeing with those who can control their careers. For over a century these conditions have been guaranteed by rules of the federal career services forbidding hiring or firing for political reasons and now expanded to guarantee procedural protections against political abuses in revoking a security clearance. These protections are essential in all aspects of federal employment; they are especially necessary for the investigators and prosecutors pursuing a possible obstruction of justice by a superior.

...the S.G.—no matter the administration—has become more political. How did this esteemed post, which the Court long regarded as the keel keeping the government balanced when it threatened to heel too far to the left or right, come to contribute to forceful tacks one way or the other, to the Court’s seeming indifference? A comparison of the divergent approaches of Harvard Law School’s late Archibald Cox ’34, LL.B. ’37, LL.D. ’75, as S.G. in the 1960s and Charles Fried in the post in the 1980s (he is the Beneficial professor of law) illuminates these important changes.

An op-ed by Charles Fried. The fate of our democracy may very well hang on the vote of Justice Kennedy’s replacement. If a newly constituted Supreme Court were to overrule (or limit to a vanishing point) Roe v. Wade, it would only matter if state legislatures restricted abortion rights. Undocumented men and women brought to this country as children and who have lived here their whole lives are only in danger of deportation because of the inaction of the national legislature. The President can impose a twenty-five percent tariff on aluminum and steel from Canada on grounds of national security only because Congress gave him that unilateral power. And rules protecting the environment can be reversed only because Congress has not revisited and updated the enabling legislation in decades. In a well-functioning democracy, we would not need an unelected federal judiciary to save us from these and a long list of other destructive and often unpopular outcomes. But we do not have a well-functioning democracy.

When Elena Kagan was dean of Harvard Law School, she was in search of rising conservative legal stars. The traditionally liberal campus, the thinking went, could use a little ideological diversity with more robust debate and the challenge of different viewpoints. Among Kagan’s hires, as a visiting professor, was a newly appointed federal appeals court judge from Washington named Brett Kavanaugh...“He had large signups. The students obviously appreciated him,” said Charles Fried, a longtime Harvard Law professor who was solicitor general under president Ronald Reagan but later supported Barack Obama...“He sits and talks with everybody. He’s a very nice colleague — a very intelligent, interesting, and well-spoken man,” Fried said. “I don’t agree with a number of decisions he’s handed down on the D.C. circuit, but I think people are discreet enough — it’s not an occasion to confront anybody, and I don’t believe he has been.”

President Trump has won confirmation of 15 circuit court judges, but he still has a long way to go in reshaping the courts because most of those picks have replaced retiring Republicans rather than adding to the party’s overall numbers. So far, Mr. Trump has not dramatically altered the makeup of any of the 12 circuit courts of appeals. But with a dozen circuit court nominees pending, that could soon change. In several circuits, the number of Democrat-appointed judges is slightly higher than the number of Republican-appointed judges...Charles Fried, a law professor at Harvard University, is disappointed that judicial nominees are chosen these days on more ideological and political grounds. “In the end, we might as well elect our judges and have done with it,” he said.

Throughout Donald Trump’s first year in office, Fox News has railed against what it calls the prejudice and unfairness of the “mainstream media’s” negativity in their abusive reporting on Trump...My personal choice among the many epithets hurled at Trump was provided by Charles Fried of Harvard Law School. Fried labeled Trump a “malignant buffoon.”

Porn star Stormy Daniels and former Playboy model Karen McDougal are suing to get out of nondisclosure agreements that bar them from talking about alleged affairs with President Trump, but neither woman is waiting for a court's permission to speak out...Former U.S. solicitor general Charles Fried, who teaches contract law at Harvard Law School, told me the “liquidated damages” referred to in the nondisclosure agreement (i.e. the money Daniels supposedly owes for speaking publicly) “could be treated as a penalty, and penalty clauses are unenforceable.” Fried said the court’s decision would hinge on whether $1 million per violation of the contract is a “reasonable estimate” of the damage to Trump’s reputation or is “excessive” — and therefore an unfair and unenforceable penalty.

Stormy Daniels's attorney has been all over TV and radio in recent weeks, saying the porn star should be free to discuss her alleged affair with President Trump because Trump neglected to sign their 2016 nondisclosure agreement...This contention is central to a lawsuit in which Daniels has asked a court to invalidate the contract — and it is probably a losing argument, according to legal experts. “The idea that it's null and void, I don't think that goes anywhere,” said Charles Fried, a former U.S. solicitor general who teaches contract law at Harvard Law School.

For the second time in two years, the U.S. Supreme Court heard arguments on the constitutionality of union “fair share” fees, and the justices appeared just as ideologically divided as they were the first time...Two law professors’ ears may have been burning during part of the arguments as several justices focused on their amicus brief. Harvard Law School’s Charles Fried and Yale Law’s Robert Post offered a narrower path than overruling Abood. Their brief suggested adopting the statutory duties test proposed by Scalia and three other justices in Lehnert v. Ferris Faculty Assn. in 1991. Under that test, contributions to a public-sector union “can be compelled only for the costs of performing the union’s statutory duties as exclusive bargaining agent.” If those statutory duties can be limited to wages, hours and working conditions, Justice Stephen Breyer suggested to Frederick, “those three terms have a hundred years of history written around them. It shouldn’t be hard to administer and should keep the things like lobbying and so forth out of it.”

On Feb. 26, the Supreme Court hears arguments in the most important labor case of the 21st century to date, Janus v. AFSCME. At issue are rules in 22 states requiring public employees to pay “agency fees” to cover the collective-bargaining costs of unions that represent them, even if the employees are not members of the union. If the court voids those laws, public-sector unions and the (usually Democratic) politicians they support could suffer a big financial hit...There is a middle way — one that could preserve precedent while addressing employees’ legitimate concerns about involuntarily funding political causes. Law professors Charles Fried of Harvard University (a former solicitor general of the United States) and Robert C. Post, also of Harvard, have sketched this elegant solution in a friend-of-the-court brief, drafted for them by another former solicitor general, Seth P. Waxman. They propose that current law be reformed to make the agency fee a genuinely meaningful opt-out.

Paying union dues and baking a wedding cake may not seem like classic examples of free speech—except perhaps at the Supreme Court. This year, the high court is poised to announce its most significant expansion of the 1st Amendment since the Citizens United decision in 2010, which struck down laws that limited campaign spending by corporations, unions and the very wealthy...Harvard law professor Charles Fried, the U.S. solicitor general under President Reagan, filed a brief in the union case questioning how the court could say the 1st Amendment protects public employees from paying a union fee, but not for speaking out about problems in an agency.

From immigration to the economy to North Korea, President Donald Trump hit on a variety of huge policy areas during his State of the Union address last week — but there was one line in particular that, while largely overlooked, could have potentially massive consequences for the reach of executive power and the rule of law at the federal level. The president seemed to instruct Congress to authorize sweeping new powers for the executive branch...But Harvard Law professor Charles Fried said that even if Trump's proposal was actually put up for consideration, it would be extremely difficult to implement. "If we're talking about civil servants there needs to be statutory authorization," Fried explained.

The Supreme Court will hear arguments this month in a case challenging the constitutionality of so-called agency fees, payments that workers represented by a union must pay if they do not wish to be dues-paying members. Conservatives have been crusading against these fees for years on First Amendment grounds, and with Justice Neil Gorsuch on the bench, the labor movement’s odds seem grim...If the conservative justices need any more convincing, they may be swayed by a brief filed by Charles Fried, an eminent libertarian scholar at Harvard. Fried, who co-authored the brief with Robert Post, a prominent liberal law professor at Yale, notably served four years as solicitor general in the Reagan administration.

In 2010, low voter turnout among young people, minorities, Democrats, and independents led to massive Republican victories...North Carolina’s most blatant attacks on voters have come in the form of racial gerrymanders. This is a complicated issue: There are some specific conditions in which race is allowed to be considered in redistricting...The most salient lesson from Cooper v. Harris is that no court decision will give justice to voters. The courts are crucial, of course: courts are the only way to fairness because you’re never going to get truly fair legislation out of a gerrymandered legislature noted Professor Charles Fried of Harvard Law School in an interview with the HPR.