Media Mentions

Harvard University will welcome the U.S. Attorney General Merrick Garland ’77  at the May 29 Commencement ceremonies.

An op-ed co-written by Nancy Gertner: It’s not that US senators are against all lawyers who defend clients, however savory or unsavory the clients may be. They had no problem confirming current US Supreme Court justices who defended large corporations for some of their careers (Chief Justice John Roberts and Justices Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). Nor was this an impediment to the confirmation of appellate judges. About 6 in 10 appellate judges are former corporate lawyers from large firms. Given this profile, it is no surprise, then, that the parties that appeared before the Supreme Court that were backed by the US Chamber of Commerce won 83 percent of the time in the most recent term.

Monetary remedies for judiciary workers in misconduct disputes and an anonymous nationwide survey for employees are among recommendations in a new report by a working group on judiciary misconduct. Sent to employees internally on Wednesday, the report includes nine new proposed steps that seek to build on changes the judiciary adopted following its own reckoning with the #MeToo movement. ... The report comes ahead of ahead of a House Judiciary Committee hearing scheduled for Thursday about the flaws in the current reporting system in the judiciary and need for statutory change. Caryn Devins Strickland, a former federal defender who brought sex discrimination claims against the federal courts and officials in a suit currently before the U.S. Court of Appeals for the Fourth Circuit, is among the scheduled witnesses, her lawyer Jeannie Suk Gersen confirmed. Strickland had been referred to in court documents only as Jane Roe but shed her pseudonym in a Wednesday court document ahead of the hearing.

Yale, Harvard and Stanford's law schools have joined forces on an initiative to keep track of large law firms' pledges surrounding their work for Russian entities, as they look to spotlight how the legal industry is responding to the Kremlin's bloody war in Ukraine. In the weeks since Russia's military invasion, at least 25 major international law firms have announced they will exit the country. But the project launched by the law schools on Wednesday claimed that, while those departures are a good first step, they are possibly misleading. ..."We saw active, clear and rapid exits from a large number of U.S. companies, but much less clarity from U.S. law firms," [John Coates] said in an email. "Those who support a war-mongering dictator ought to pay a heavy financial and reputational price. I hope our efforts can increase the likelihood that 'ought' is real."

On September 15, 2021, Madi* found herself in the bathroom of her sorority house, holding a positive pregnancy test. The first thought that went through her head when she saw the double lines was, This can’t be happening. She took four more tests to be safe, hoping it was a false positive. But they all confirmed that she was pregnant. The next day, Madi made an appointment with a nearby Planned Parenthood to have an abortion. The earliest slot was in eight days. ... And legal scholars, including Laurence H. Tribe, university professor emeritus of constitutional law at Harvard Law School, predict that the Supreme Court’s decision on Dobbs will further curtail access. Its ruling may eliminate the fetal viability line, and let states set limits on abortions at whatever week they deem fit, as Texas already has done through what’s been called the “vigilante loophole."

In February, Nintendo announced it would shut down its 3DS and Wii U storefronts. While the closure is an inevitable part of the life cycle of those long since sunset consoles, the move sparked anger, disappointment, and even fear as fans lamented the loss of access to digitally exclusive 3DS and Wii U titles. With console gaming entering its ninth generation, the digital storefronts from the previous generations are slowly disappearing, taking with them thousands of digital-only games and DLC. Combined with the decline of physical media in favor of subscription services and digital distribution, it’s getting harder for people to play older games and harder still for the games of the present to be preserved for the future. ... Kendra Albert, a clinical instructor at the Harvard Law School Cyber Law Clinic, explains. “Even when the uses that someone is making of a work are fair — for example, a museum taking a copy of a video game and transferring it from a CD to a hard drive — Section 1201 says there’s still legal risk involved in doing that if you need to circumvent digital rights management (DRM) or a technological protection measure in order to do so,” they told The Verge.

An attorney suing the federal judiciary over its protocols for handling harassment complaints will speak at a House Judiciary subcommittee hearing about flaws in the judicial branch’s workplace protection policies. Caryn Devins Strickland, a former North Carolina public defender, filed a notice of intent on Wednesday to withdraw the “Jane Roe” pseudonym from her complaint, which alleges that the judiciary’s protocols for handling workplace misconduct are unconstitutional and failed to protect her from harassment by a supervisor at the Federal Defender Office for the Western District of North Carolina. Strickland is now seeking to revive the lawsuit after a district judge dismissed it last year. Strickland is among several people who will appear before the House members Thursday, according to her attorney, Jeannie Suk Gersen, and an advisory from the committee.

Regulatory uncertainty dampening the deals environment, new rules changing the shareholder activism playbook, and special purpose acquisition company mergers underperforming expectations were among the hot topics at Tulane University Law School's 34th annual Corporate Law Institute. ... John Coates, a Harvard Law School professor and former official at the U.S. Securities and Exchange Commission, hammered home how uncertain the state of the world is, saying the situation in Ukraine represents an existential threat to global M&A health.

U.S. President Joe Biden has publicly called Russian President Vladimir Putin a war criminal, but legal experts said a prosecution of Putin or other Russian leaders would face high hurdles and could take years, as outlined below: HOW IS A WAR CRIME DEFINED? The International Criminal Court in The Hague defines war crimes as “grave breaches” of the post-World War Two Geneva Conventions, agreements which lay out the international humanitarian laws to be followed in war time. Breaches include deliberately targeting civilians and attacking legitimate military targets where civilian casualties would be “excessive,” legal experts said. ... “If it keeps happening again and again and the strategy appears to be to target civilians in urban areas, then that can be very powerful evidence of an intent to do so,” said Alex Whiting, a visiting professor at Harvard Law School.

Harvard Law scholars say that, as a former public defender, Ketanji Brown Jackson ’96, would bring insight into criminal justice inequities and turn a spotlight on a vital job.

At a Program on Negotiation event, experts urged creating back channels of communication, emphasizing the downside of continued conflict, and finding concrete terms in order…

On a cold day in March 2021, Delores White entered a courtroom in Erie, Pennsylvania. Delores, who was 67 years old, was dressed in a white blazer and glasses, her gray hair pulled into a low ponytail and a surgical mask covering her face. The courtroom was large, and Covid-19 restrictions on attendance made it feel empty. As others trickled into the room, Delores sat quietly, occasionally leaning over to confer with her lawyers or wave at family members. She remained composed until her daughter, Jamesha, entered the room. When she saw her, Delores began to cry. ... Forgiveness is not the primary purpose of the law — justice is. But the US legal system is a distinctively unforgiving one. “The United States is particularly punitive in defining, prosecuting, and punishing crimes, especially if the accused is a member of a racial minority,” writes Martha Minow, a professor at Harvard Law and author of the book When Should Law Forgive?

The Presidential Commission on the Supreme Court of the United States had an image problem from the moment President Biden established it last April, fulfilling a campaign promise that he would examine what might be done with a Court that was “getting out of whack.” The Democratic left, hungry for payback for the two seats they regard Donald Trump and Mitch McConnell as having “stolen,” dismissed it as an effort to shield the president from having to confront their demand to add two or even four additional seats to the Court. Others simply shrugged after noting that Biden asked the thirty-four-member commission—mostly law professors, arrayed from the center-left to the center-right—not for concrete recommendations but simply analysis, for the president’s consideration, of “the principal arguments in the contemporary public debate for and against Supreme Court reform.” ... “What did the Warren Court stand for?” the legal historian Morton J. Horwitz asked in The Warren Court and the Pursuit of Justice (1998), a paean to the period. Horwitz and Breyer were both born in 1938. Their contemporaries, titans of liberal constitutional scholarship like Owen Fiss of Yale and Laurence Tribe of Harvard, eventually came to staff and even dominate the nation’s law school faculties. Nearly any member of this cohort, many of them Warren Court clerks like Fiss and Tribe, might have given an answer similar to the one Horwitz offered: “Like no other court before or since, it stood for an expansive conception of the democratic way of life as the foundational ideal of constitutional interpretation.”

An op-ed by Noah Feldman: Three conservative Supreme Court justices declared this month that the Constitution should be read to give state legislatures unlimited control of electoral procedures, and a fourth said the issue is important enough for the whole court to consider. That’s scary because it could eventually block even state courts from stopping partisan cheating. What’s most important about the issue, however, isn’t the remote (for now) danger that a majority of the court might make a disastrous decision that undermines democracy. It’s the new kind of reasoning that the conservatives are using to reach their preferred result.

In today’s column, lawyers and staff at international law firms in Warsaw, Poland, are opening their homes to Ukraine refugees flowing into the country; Husch Blackwell launched what it called Big Law’s first dedicated team to advise developers of psychedelics and emerging therapies; a Stroock & Stroock & Lavan lawyer was appointed director of a voting rights project at Fordham University School of Law. Leading off, a team of faculty and research staff from law schools at Harvard, Stanford and Yale said recent Big Law firm exits from Russia are a good first step but possibly misleading. “Law firms can and do serve Russian interests from afar; if nothing else, Covid has taught us the possibilities of remote work,” the project said in a statement. The team said it is tracking AmLaw 100 firms and UK100 firms to see which have publicly committed not to profit from work that helps Russia’s war on Ukraine. So far, only four have done that, it said. (Law.Stanford.edu) Another monitoring project, at Yale Law, says over 400 companies have withdrawn from Russia, but others remain. (Yale.edu)

Ukraine’s President Volodymyr Zelensky said in a CNN interview on Sunday that he was ready to negotiate with Russian President Vladimir Putin, but if the talks failed, “that would mean that this is a third world war.” Zelenksy told CNN’s Fareed Zakaria that “without negotiations, we cannot end this war,” adding “if there’s just a 1 percent chance for us to stop this war, I think that we need to take this chance.” ... Robert Mnookin, the Samuel Williston Professor of Law at Harvard Law School and author of “Bargaining with the Devil: When to Negotiate, When to Fight,” outlined a potential negotiated deal. The terms would include the recognition of Crimea as part of Russia and a referendum in the Donbass region on whether residents want to be annexed by Russia or remain part of Ukraine. As part of the same accord, Ukraine would remain a sovereign state but pledge never to join NATO, he said. Mnookin acknowledged such an agreement means that Russia would be “achieving a number of things by reason of aggression,” which is not a good precedent. He also expressed concerns that the United States and other Western allies run the risk of pressuring Ukraine to cede more ground to Russia than it is comfortable doing. That could set the stage for conflicts down the road. The key, he said, is to ensure the “Ukrainian government itself decides to make this deal.”

The vaccine mandate for health-care workers will likely remain firm even as other cornerstones of President Joe Biden’s pandemic response dissolve with the administration’s messaging that the U.S. is in a new phase of the pandemic. The mandate requires health-care workers at facilities paid by Medicare and Medicaid to be fully vaccinated or they risk loss of funding. It was written at the peak of the delta variant surge. The Supreme Court ruled in favor of the Medicare agency’s mandate as the omicron variant ripped through the U.S. health-care system. ... But “the federal government is not a particularly nimble entity. It’s not designed to turn on a dime,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

An op-ed by Noah Feldman: The annual World Happiness Report came out on Friday and, sure enough, the usual rich Nordic and northern European countries clustered at the top. Finland and Denmark ranked as the happiest and second-happiest corners of the planet, and the top eight were all in northern Europe. Afghanistan, Lebanon and Zimbabwe brought up the rear, as war-torn and impoverished countries always do. Data for the survey, issued by the Sustainable Development Solutions Network, a United Nations affiliate, was compiled before the Feb. 24 invasion of Ukraine (No. 98) by Russia (No. 60) presumably reduced human happiness pretty much everywhere.

Investors so far this year have filed a record 529 environmental, social and governance resolutions, and well-known companies including Goldman Sachs, Disney and Walmart received an "F" grade on pay gaps in a new report. These are some of the stories in corporate legal news you may have missed in the past week. John Coates, who last year spent time as general counsel for the SEC and acting director of its Division of Corporation Finance, discussed a range of topics during his appearance on the first day of the Tulane University Law School's 34th annual Corporate Law Institute. Although the conference was held in person this year following an entirely virtual event in 2021, Coates — a former partner at Wachtell Lipton Rosen & Katz — was one of a few speakers who attended virtually. Coates warned during his speech that Russia's invasion of Ukraine could be a harbinger for further deterioration of business relationships across borders, especially with adversaries like China. "Globalization has been so powerful and basic for most of our practicing lives that it's taken for granted," he said. "We're at a point right now where there is real danger of that reversing to a significant extent."

An  op-ed by Mary Ziegler: With Roe v. Wade on thin ice, state legislatures are producing a wave of anti-abortion bills, some of them truly eye-popping. Missouri alone has in recent weeks tried to limit out-of-state travel for abortion, proposed treating the delivery or shipment of abortion pills as drug trafficking, and moved to make it a felony to perform an abortion in the event of an ectopic pregnancy (in which a fertilized egg implants outside the womb), a condition that can be life-threatening.

The two major Democrat candidates running for governor think Massachusetts has an important role to play in combating the climate crisis, they both say they’re focused on making child care more affordable, and there is no daylight between them on abortion rights. But some progressive activists see a bright line difference between front-runner Attorney General Maura Healey and underdog state Senator Sonia Chang-Díaz on an essential issue: criminal justice. ... Lea Kayali (JD '24), a first-year law student at Harvard Law School who used to work for the ACLU of Massachusetts, said she noticed that the senator always advocated for “the most progressive version” of the bills moving through the chamber. Kayali, a self-described prison abolitionist, said Chang-Díaz’s values align more with hers. “I see some bright lines between the two,” she said. “Criminal justice and antiracism need to be at the forefront of this race. We are entering an era where a lot of people want to pay lip service to progressivism . . . In 2022, there is no excuse for claiming to be progressive and not having a bold agenda for fighting mass incarceration.”