Media Mentions

An op-ed co-written by Laurence Tribe: Earlier this month, a federal district judge in North Carolina stopped the effort by North Carolina voters to hold Republican Representative Madison Cawthorn accountable for his role in organizing and promoting the violent Jan. 6, 2021, attack on the US Capitol by disqualifying him from running for reelection. As stunning as this decision was, the reasoning the court used to get there is more so. It held that the Amnesty Act of 1872, which granted amnesty to former Confederates, applies to Cawthorn and overrides an explicit constitutional prohibition in the 14th Amendment barring those who “have engaged in insurrection” from holding office. This decision is at odds with the text, history, and logic both of that statute and of the Constitution itself, and cannot be allowed to stand.

An article co-written by Lucian Bebchuk: Companies have increasingly pledged support for stakeholder capitalism, but these pledges have been met with significant skepticism by some observers. The main criticism, which we have laid out in previous work, is that corporate leaders lack incentives to take into account the interests of employees, suppliers, the environment, or other stakeholders; therefore, relying on managerial discretion will not create value for stakeholders.

A new book by Rohan J. Alva, counsel at the Supreme Court, gives an eye-opening account on the origins of the most important fundamental right in the Indian Constitution — the right to life and personal liberty guaranteed by Article 21. Titled ‘Liberty after Freedom’, the book explores Article 21 that has, in recent years, made the right to privacy as well as the decriminalisation of homosexuality possible. ... Michael Klarman, professor at Harvard Law, called the book an ambitious and fascinating account, adding that “Alva sheds interesting historical and comparative light on the well-nigh irresolvable conflict between a society’s commitment to protecting the fundamental rights of individuals and constraining the power of unrepresentative and politically less-accountable judges”.

Harvard Law School professor and former U.S. Securities and Exchange Commission official John Coates wants regulators to be more forthright in debunking legal myths that he argues contributed to the boom in special purpose acquisition companies. Coates told Law360 in an interview that regulators should be "more aggressive" in countering myths that he believes SPAC industry promoters and their advisers have circulated that make SPACs appear more legally advantageous than is justified.

Joe Biden is trying to get a historic Supreme Court Justice nominee confirmed while managing the worst military crisis in Europe since World War II. Those around him say he’s more at ease than at other points during his presidency. His Senate tenure, they add, is the reason why. ... Those who’ve known Biden since his early Senate days say he’s not naive about the modern Republican party. “I don’t think he’s living in the past,” said Laurence Tribe, a constitutional law scholar and Biden confidante. “He would love to have as much bipartisan support as possible but he has no illusions.”

Though Florida may seem like a distant state with very little in common with Massachusetts, Alejandra Caraballo, a clinical instructor at Harvard Law school, says Florida’s most recent anti-LGBTQ legislation isn’t an isolated instance. The “Don’t Say Gay” bill has garnered a lot of media attention and has dominated conversations about LGBTQ rights lately. The bill, dubbed “Don’t Say Gay” by opponents, is actually titled “Parental Rights in Education.” It seeks to ban certain instruction of sexual orientation and gender identity in the classroom and is now awaiting Gov. Ron DeSantis’s signature. He is expected to sign it. “This has just been an unprecedented attack on LGBT rights,” Caraballo said.

Randall Kennedy is a Harvard law professor and author. He recently talked with Nathan J. Robinson, editor of Current Affairs, about his new book Say It Out Loud : On Race, Law, History, and Culture. Here is a taste of their exchange

Stephen Ball’s educational and career exploits have taken him from his hometown of Southfield to places far and wide, culminating in his current position as the new dean of students at Harvard Law School. ... “I view the value of the role as helping students optimize their experience at HLS while also positioning them to succeed in their life after law school,” Ball said. “Although I enjoyed aspects of my student experience at HLS, there were many times when the environment felt foreign, even though I had succeeded at U of M, another elite academic setting. I understand that things probably have not changed too much for today’s students, so I want to do all that I can to enrich their experience by ensuring they are able to leverage HLS’s abundance of resources, help them feel more connected to the HLS community, support them in navigating mental health challenges, and come away thinking fondly of their time in Cambridge.”

For three days in July, Jeneesa Barnes was haunted by voices. It was as if people were just out of sight discussing her flaws, picking her apart, even when she was home alone. The morning of the third day she retreated to her car, thinking she might feel safer in a small, enclosed space. But the voices remained. Something was going horribly wrong. She turned on some foreign-language pop music, trying to drown out the voices amid lyrics she couldn’t understand. She started driving. ... Seven former nurses for the company say they worried that Cerebral wasn’t merely meeting a demand but was also, by making access so easy, effectively creating it; they described a fear that they were fueling a new addiction crisis. One researcher, Stephen Wood, an acute-care nurse practitioner who worked in Massachusetts at the height of the opioid crisis, is even more blunt. Looking at the Cerebral website, he notes in particular that nurse practitioners are referred to as prescribers rather than providers or caregivers. “It doesn’t sound like they care about your well-being,” says Wood, now a visiting researcher at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “It sounds like they care about prescribing you these medications.” The company said it uses the term prescriber to minimize confusion among the varied services it provides.

“If you put up this whole interview,” Donald Trump said during a podcast livestream on Wednesday afternoon, “let’s see what happens when Instagram and Facebook and Twitter and all of them take it down.” Trump named the wrong platforms; the podcast, Full Send, a mildly Rogan-esque bro-fest, was streaming on YouTube. But otherwise his prediction made sense, because during the interview he reiterated his claim that he, not Joe Biden, was the rightful winner of the 2020 election. “The election fraud was massive,” he said during one of several riffs on the theme. “I call it ‘the crime of the century.’ We’re doing a book on it.” ... “It’s mostly been a one-way ratchet,” says Evelyn Douek, a doctoral candidate at Harvard Law School who studies content moderation. “It rarely goes back the other way; it always tightens and tightens. To date, we haven’t seen loosening at the end of periods of risk.”

On this episode of the Building Local Power Podcast, host Jess Del Fiacco is joined by her colleague John Farrell, director of ILSR’s Energy Democracy Initiative, and guest Ari Peskoe, who is the director of the Energy Law Initiative at Harvard Law School. They discuss the attempts Congress has made to increase competition in electric utilities, the four orders the Federal Energy Regulatory Commission (FERC) ruled between 1996 and 2011, and the how the lack of competitive processes negatively impacts consumers.

Cruel. Really, that's the only way to describe many conservatives' determination to pick fights with LGBTQ Americans, and with transgender children in particular. On Tuesday, Florida's Republican-controlled Senate passed a tactically imprecise bill that would prohibit certain classroom instruction about sexual orientation and gender identity. ... "There can be a failure to connect (what's happening to transgender people) to a much wider retrenchment of civil rights," Alejandra Caraballo, a clinical instructor at Harvard Law School's Cyberlaw Clinic and a former attorney at the Transgender Legal Defense and Education Fund, told CNN. "Many of the cases and arguments used to roll back reproductive rights are used to roll back LGBTQ rights. These things are intertwined."

An op-ed co-written by Laurence Tribe: The time has come for Attorney General Merrick Garland to appoint a special counsel to investigate Donald Trump. That step offers the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges. Several recent developments have brought us to this moment. On March 2, the House select committee investigating the Capitol siege alleged in a federal court filing that it had amassed evidence that Trump illegally schemed to stop the lawful transfer of power to Joe Biden.

EPA Administrator Michael Regan is expected to use his keynote address today at CERAWeek by S&P Global in Houston to present his agency’s road map for power plant regulation. The speech before the annual energy industry confab will include new details on the scope and timing of rules set for release over the next three years that could affect fossil fuel power generation (Climatewire, Jan. 24). The plan makes good on Regan’s promise that EPA would look at “the full suite of authorities” when it comes to regulation. ... Carrie Jenks, executive director of the Environmental & Energy Law Program at Harvard Law School, said she was encouraged that EPA’s different media offices — which oversee policies related to air, water and other issue areas — are working together on power plant regulation. “There is value in the coordination,” she said. “And it’s important for EPA to know that and understand how those rules interact with each other and what the companies are considering. It leads to better rulemaking.”

As the International Criminal Court (ICC) prepares to investigate possible war crimes committed during Russia's invasion of Ukraine, a growing number of officials and world leaders are calling for President Vladimir Putin to be held accountable amid Kyiv's rising civilian death toll. ... Ioannis Kalpouzos, co-founder of the Global Legal Action Network and visiting professor at Harvard Law School, told Newsweek that the law of targeting will likely be at the heart of the ICC's investigation. The ICC will be able to probe attacks that are intentionally directed against civilians and those that are disproportionate in that they cause "incidental loss of civilian life or damage to civilian objects or the environment that is excessive in relation to the concrete and direct overall military advantage anticipated," he explained.

A paper co-written by Howell Jackson: As public debate heats up over whether the United States should create a central bank digital currency (CBDC), there is another option that deserves consideration:  Treasury Accounts.  The Treasury Department could, relatively quickly, create digital accounts to provide payment services that would be especially valuable to unbanked and underbanked individuals.  These accounts might not possess all the technological advances of a full-blown CBDC, but they would be much easier to establish and could be implemented now under existing statutory authority.  Importantly, Treasury Accounts could immediately improve access to financial services for the millions of Americans who have limited access to banking services today and also greatly facilitate the distribution of federal benefit programs to all Americans.  Treasury Accounts are not an alternative to CBDCs but rather a faster, easier way to achieve some of the primary objectives of those who favor creating a CBDC.

The state of Washington could be on its way to adopting a law with big implications for the gig economy. State lawmakers have passed a bill that offers ride-hailing drivers some new benefits. The bill bars them from being classified as employees. Washington is the latest state to grapple with providing rideshare driver benefits – like sick leave and minimum pay — while still giving drivers flexibility over their schedules. Lawmakers there sought some input from organized labor. ... Benjamin Sachs at Harvard Law School said under that law, employees can still have control over their hours. “There is nothing inconsistent between being an employee and having a flexible work arrangement,” he said, adding that remote workers often set their own schedules and are still considered employees.

If Ketanji Brown Jackson is confirmed, she will be the first Black woman on the bench in the Supreme Court’s history. Demography is important, because the court’s perceived legitimacy will always to some degree depend on the extent to which it seems to reflect the country as a whole. Ronald Reagan recognized as much when, in 1980, he made a campaign promise to nominate the first woman to the court — a pledge motivated in part by concern that the GOP needed to recruit female voters. Biden’s promise to nominate a Black woman was meant in part to shore up the Black vote in the 2020 South Carolina primary. In both cases, the hard demands of electoral politics and more abstract notions of democratic legitimacy converged. ... Why is educational pedigree so important on the court? Should it be? In Bloomberg, Noah Feldman wrote that Jackson’s “experiences as an African American woman and as someone who had an uncle imprisoned on a drug felony will matter — as will her elite educational background.” I spoke with Feldman, a professor of law at Harvard Law School, about legitimacy, meritocracy, the Federalist Society, the role of clerkships, and how Jackson’s education matters.

When the pandemic hit, many people hunkered down at home, hoping to stay put and ride out the storm until it passed. For others, as the scourge of the coronavirus was spreading fast and seeking new host organisms anywhere it could find them, those early days in the eye of the storm, so to speak, were an anxious race against time. ... As Terri Gerstein, a workers rights lawyer at the Harvard Law School’s Labor and Worklife Program, argued in The American Prospect, the bill “would also exempt Uber and Lyft from many important laws that virtually every other employer in the state must follow by flat out enshrining the misclassification of these workers as independent contractors rather than employees. The Tacoma diner, the Seattle coffee shop, and the supermarket in Spokane all are legally required to provide a safe workplace, pay employees for all hours worked, and pay taxes to support the state’s unemployment compensation system.”

As thousands flee the besieged Kyiv suburb Irpin, allegations are emerging of Russian forces looting, hiding military equipment in residential areas, deploying snipers and cutting water and power as they seek to use the area as a potential launchpad to invade the capital. ... “There is nothing clearly to prohibit cutting water and power” in international law, he said in an email. But under the Rome statute, which governs the International Criminal Court, it is a crime to intentionally starve civilians or “cause conditions where they can’t survive,” according to Alex Whiting, an international law expert and visiting professor at Harvard Law School.

After getting enormous pressure from the public, as well as from members of both side of the isle in North Dakota, in the wake of Russia’s invasion of Ukraine, the State Investment Board convened a special meeting Thursday to discuss divesting its Russian holdings. During executive session, the SIB voted unanimously to pursue the divestment strategy. ... News Radio reached out to Harvard Professor Mark Wu on any implications that SB 2291 could have in the process. “The decision at hand concerns divestment, as opposed to investment. While the state law places restrictions on the State Investment Board’s investment decisions, it does not place similar restrictions on its divestment decisions.” Professor Wu continued, “What this means practically is that the state investment board could take geopolitical considerations into account for a divestment decision, but should it then decide to divest, the existing law would place restrictions on what the board can and cannot do in deciding how to re-invest the proceeds of the divestment.” Professor Wu is the Henry L. Stimson Professor at Harvard Law School, where he specializes in international trade and international economic law.