Media Mentions

Fox News host Sean Hannity misleadingly claimed that President Joe Biden was venturing into unprecedented territory with his pledge to nominate a Black woman as a replacement for U.S. Supreme Court Justice Stephen Breyer, who is retiring after 28 years. ... Nikolas Bowie, assistant professor of law at Harvard Law School, said Hannity’s claim “ignores the reality that from 1789 through 1967, every president made race and gender a defining factor in their selection process by refusing to nominate anyone other than a white man.” ... Tomiko Brown-Nagin, another professor of constitutional law and history at Harvard University, said the late Justice Antonin Scalia’s Italian background was a “defining, positive factor in Ronald Reagan’s selection of him,” citing a report in Slate, a progressive online magazine.

John W. Dean, who served as White House counsel under former President Richard Nixon, blasted former President Donald Trump's suggestion at a Saturday rally that he will pardon those who attacked the U.S. Capitol on January 6, 2021, saying such an action is "the stuff of dictators." ... Other legal experts quickly raised alarms about Trump's remarks as well. "I have no doubt Trump is serious about this. He is saying he'll dismantle the legal system retroactively," Laurence Tribe, a professor of constitutional law at Harvard Law School, tweeted.

Latino advocacy groups, lawmakers and scholars had nothing but praise for Justice Stephen Breyer, the great-grandson of immigrants from Romania, after he announced his retirement from the Supreme Court on Thursday. “I think he was a moderate liberal who could be counted on to come out on the right way on a lot of cases that affected Latinos,” said Kevin R. Johnson, the dean of the University of California Davis School of Law, who is of Mexican American heritage. ... Andrew Crespo, professor at Harvard Law School, clerked for Breyer during the 2009-10 term. He recalled going to lunch with the justice, which required finding a spacious restaurant, “so that, when we’re sitting down and he’s telling us all these stories about the court, that we weren’t accidentally sitting next to a reporter.” “He bounced back from defeats faster than, I think, his clerks did,” Crespo told Bloomberg Law’s Cases and Controversies podcast. “He always thought maybe, maybe the best will come.”

Transmission planning needs major reforms, including loosening the grip incumbent transmission owners have on the process, a panel of experts said Thursday during a roundtable hosted by the R Street Institute, a think tank. ... In the short term, transmission operators determine who produces power and how much they produce, and in the long term they guide decisions about where to build new transmission, which opens opportunities for new sources of power, according to Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. "So really, control over transmission is in a lot of ways control over the industry," Peskoe said.

Jillian Melton was paid just $2.13 per hour — the lowest legal cash wage in the U.S. — during her six years at Seasons 52 Wine Bar and Grill in Memphis, Tennessee. The rest of her income came from tips, which could vary widely depending on the day of the week or the whim of the customer. Melton also says she witnessed discrimination on the job — not only from customers but also from the store’s management. As a young, lighter-skinned Black woman of mixed heritage, Melton says she was often assigned by her managers to the busiest, most front-facing sections of the restaurant along with her white and young coworkers. But her older and darker-skinned Black coworkers were given emptier sections where tips would only slowly trickle in — a pattern of discrimination based on colorism, racism, and ageism that resulted in her bringing home vastly more tips. ... Catharine A. MacKinnon, a professor at Michigan Law School and Harvard Law School and an author on the 2021 report, adds that this problem is an “underlying dynamic” in the restaurant industry. In an e-mail to Civil Eats, she described the tipping system as putting workers “at the sexual whim and mercy of whoever provides the tips, or provides the conditions that enhance or make tips possible.”

Documents obtained by The Nation reveal a close collaboration between Chevron, its law firm, and the “private prosecutor” who sent environmentalist lawyer Steven Donziger to federal prison in October. The oil giant has pursued Donziger since he won a legal case against it for contaminating a vast stretch of rain forest in Ecuador. So far, although e-mails and billing statements between Chevron, the law firm Gibson, Dunn & Crutcher, and the lawyer Rita Glavin do not show evidence of legal wrongdoing, they do raise questions of fairness. And Donziger’s team is exploring legal action to remedy what they regard as this latest injustice. ... The documents show that Glavin and her assistants met in person with Gibson Dunn’s lawyers at least 32 times. E-mails show numerous additional telephone conferences between the two. In one December 3, 2019, e-mail, Glavin is scheduling a phone call with a lawyer from Gibson Dunn at 10 PM. Charles Nesson, a professor at Harvard Law School who has followed the case for years, and already cites it in his courses, told me, “The biggest evidence of Chevron’s involvement is the size of the legal docket. The docket sets records in legal docketry. Who paid for all of that legal stuff?”

Nathan Rosenberg [visiting scholar at the Harvard Law School Food Law and Policy Clinic] and Peter Lehner are the authors of a book called Farming for Our Future: The Science, Law, and Policy of Climate-Neutral Agriculture, released in December of 2021 from the Environmental Law Institute Press. I had the opportunity to interview Rosenberg about the book, which is a forward-looking guide to a lot of the big questions our society needs to ask about its food production system. Enjoy our conversation about carbon-negative agriculture, the conflation of rural residents with farmers, and the twin fates of farmworkers and the natural environment, below.

After Antonin Scalia’s unexpected death in 2016 left a seat vacant on the US Supreme Court, the 11-year-old daughter of federal judge Ketanji Brown Jackson drafted a letter to then-president Barack Obama recommending her mother as a replacement. That effort proved unsuccessful, but six years later, Jackson is among the frontrunners to become the newest justice on America’s highest court, after the retirement of Stephen Breyer later this year. ... Laurence Tribe, professor emeritus at Harvard Law School, Jackson’s alma mater, said: “It will be challenging, to say the least, for the Republican senators who voted for her . . . to explain why suddenly they are not in favour of her elevation to the Supreme Court.”

As Justice Stephen Breyer prepares to step down from the Supreme Court later this year, legal experts are highlighting a lesser-known piece of his legacy — an impact on clean energy and electricity markets. Yesterday, President Biden formally announced Breyer’s plans to retire at the end of this court term during an event at the White House. The 83-year-old justice has served for 28 years on the high court, and four decades as a federal judge (Greenwire, Jan. 27). ... “Breyer opened the door to a practical view of FERC’s jurisdiction that is adaptable to new technologies and is not fixed by the industry structure that existed when Congress passed the [Federal Power Act] in 1935,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, in an email.

CNN's Nia-Malika Henderson reacts to some conservative commentators blasting President Biden's plan to pick a Black woman for the Supreme Court [including commentary from Professor Andrew Crespo].

The White House is about to launch a lightning attempt to replace Supreme Court justice Stephen Breyer, who is expected to leave a vacant seat on the bench just months before midterm elections that could tilt the balance of power in the Senate. President Joe Biden’s administration is facing pressure to move quickly to ensure they do not lose progressive seats on America’s highest court, which is split 6-3 between conservative and liberal justices. ... “It’s absolutely indispensable that someone be nominated as soon as the resignation makes possible,” said Laurence Tribe, professor emeritus at Harvard Law School.

An op-ed by Noah Feldman: The news on Wednesday of Justice Stephen Breyer’s retirement from the Supreme Court at the end of this blockbuster term marks an historical transition point. One of the great pragmatists in the court’s history, Breyer is the last of President Bill Clinton’s appointees to still be serving. Only Justice Clarence Thomas, appointed by President George H.W. Bush in 1991, now remains from the centrist court that sat together for longer than any other configuration of justices in history.

The Federal Emergency Management Agency has received White House approval to begin tracking the race and ethnicity of people who apply for disaster relief so the agency can analyze whether there is discrimination in the distribution of billions of dollars of federal aid. ... The act’s nondiscrimination mandate “is one of the most inclusive and comprehensive in federal law,” Harvard Law School legal fellow Hannah Perls wrote in a legal analysis in October. The act aims to prevent both intentional discrimination in disaster relief as well as policies that seem nondiscriminatory but “result in unequal access to federal assistance for protected groups,” Perls wrote with co-author Dane Underwood, a Harvard Law student.

Justice Stephen Breyer is known for letting his flamboyant intellect shine on the bench. And, according to those who clerked for him, Breyer’s personality outside of the courtroom was no different. ... Breyer was described as someone with an insatiable, extroverted mind, who thrived on conversation—sometimes to a fault. Andrew Crespo, a former clerk and current Harvard Law School professor, said going to lunch with the Justice required finding a restaurant with lots of space “so that, when we’re sitting down and he’s telling us all these stories about the Court, that we weren’t accidentally sitting next to a reporter.”

This year marks the 49th anniversary of the Supreme Court's ruling on Roe v. Wade, the landmark case that made abortion a federally protected right in the United States. It could also be the year we see Roe v. Wade overturned, with a dramatically altered landscape of abortion access as a result, experts said. ... Mary Ziegler, a visiting professor of constitutional law at Harvard Law School and author of "Abortion and the Law in America: Roe v. Wade to the Present," describes 2022 as "the year that abortion rights in America are gone."

How do you measure progress? The incrementalist counsels patience: Something is better than nothing, half a loaf is better than none. Characteristically, Malcolm X wasn’t having any of that. In a televised round table in 1961, the civil rights lawyer Constance Baker Motley tried to coax Malcolm into acknowledging that the average Black American “is substantially better off than he was at the end of slavery.” He scorned the very premise. “Now you have 20 million Black people in America who are begging for some kind of recognition as human beings,” he said, referring to the Black Americans imprisoned at the time, “and the average white man today thinks we’re making progress.” It’s an evocative exchange, one that the Harvard legal historian Tomiko Brown-Nagin showcases to illuminating effect in “Civil Rights Queen,” the first major biography of Motley, a decade in the making. Brown-Nagin juxtaposes Motley’s attempts to find common ground by asking a series of lawyerly questions (“You recognize, don’t you …? “Don’t you think …?”) with Malcolm’s scathing rejoinders. By the mid-1960s, Motley had been caught “in a bind,” Brown-Nagin writes. Working at the NAACP Legal Defense and Educational Fund Inc., or Inc Fund, since 1946, she had been a crucial figure in using the courts to dismantle Jim Crow laws. Motley had helped litigate Brown v. Board of Education; she fought for Martin Luther King Jr.’s right to march in Birmingham. But to radicals disenchanted with the mainstream civil rights movement, she was “weak and accommodationist,” Brown-Nagin writes. Set against figures like Malcolm, “her politics and style looked tamer — and they were.”

The Rev. John Udo-Okon, a Pentecostal minister in the Bronx, has a lot of congregants who are sued by debt collectors and don’t know what to do. Like most of the millions of Americans sued over consumer debt each year, Pastor Udo-Okon’s congregants typically cannot retain a lawyer. When they fail to respond to the suit, they lose the case by default. ... Laurence Tribe, the liberal legal icon who headed an access-to-justice initiative in President Barack Obama’s Justice Department, said in an interview that demanding a law degree to help someone fill out a simple form serves largely to protect lawyers from competition. He said of Upsolve’s suit, “If you want a test case to bring sanity as well as constitutional values to a process in which the legal profession has edged out both, this is it.”

A year into his presidency and with his central greenhouse gas-cutting legislation stalled in Congress, President Joe Biden finds his climate agenda moving in fits and starts as the U.S. is on track to miss the carbon reduction goals his administration set. Biden said last week he may have to break off pieces of that bill, a roughly $2.2 trillion amalgam of climate and social programs, and pass them in “chunks,” a prospect that carries its own risks. ... In four years, the Trump administration rolled back about 80 environmental or energy regulations, according to a tally the Environmental & Energy Law Program at Harvard Law School maintains.

Historically, states, local governments, and tribal nations have been key leaders on climate ambition. For example, in the 1960s, California set the nation’s first tailpipe emissions standards and continued on the path of setting the most advanced clean vehicle regulations with its Advanced Clean Cars program adopted in 2012. Meanwhile, tribal nations have been some of the first communities to address the effects of a warming climate. For instance, in 2010, the Swinomish Tribe in Washington state enacted a landmark climate action plan that has since been followed by 50 other tribes enacting similar plans.2 ... New York: Harnessing the power of cross-agency collaboration Dale Bryk is director of state and regional policy at the Environmental and Energy Law Program at Harvard Law School. She served as New York State’s deputy secretary for energy and environment from 2019 to 2020 and held a variety of positions over the course of her 20-year career at the Natural Resources Defense Council.

As some of the experts chosen to usher Oregon into the age of psilocybin mushroom therapy sat down last week for a Zoom meeting, two of them had a bone to pick. At issue: whether the Oregon Psilocybin Advisory Board would get to hear from the “Godfather of Microdosing” this week. ... The exchange took place between two academic heavy hitters, both appointed by Gov. Kate Brown to the psilocybin board. Dr. Atheir Abbas is an assistant professor of behavioral neuroscience at the Oregon Health & Science University School of Medicine, while Dr. Mason Marks is an assistant professor at the University of New Hampshire School of Law and a senior fellow at Harvard Law School’s Project on Psychedelics Law and Regulation.

An op-ed by Noah Feldman: A revolution in university admissions appears to be at hand. The Supreme Court has agreed to hear two cases on affirmative action in higher education, raising the likelihood that it will strike down the practice in the near future. The only thing surprising about this development is the timing, in the same Supreme Court term that already promises blockbuster conservative judgments on abortion and guns.