Media Mentions

An article by Jeannie Suk Gersen: On January 6, 2021, in the minutes before the storming of the Capitol, I was sending a welcome message to my new class of criminal-law students while keeping an eye on Congress’s certification of the Presidential election. During the next few hours, a violent mob invaded the building, overwhelmed law enforcement, and drove lawmakers to halt the certification process and hide or evacuate. At the end of that semester, I included a new question on the final exam for my criminal-law students, one about the previously little-known crime of “seditious conspiracy,” which includes conspiring “by force to prevent, hinder, or delay the execution of any law of the United States.”

Proponents of the legalization of psychedelics has won a victory. Seattle’s City Council approved a resolution Monday to decriminalize a wide range of activities around psychedelic drugs, including the cultivation and sharing of psilocybin mushrooms, ayahuasca, ibogaine and non-peyote-derived mescaline. The landmark measure extends what is already Seattle city policy not to arrest or prosecute people for personal drug possession to further protect the cultivation and sharing of psychedelic plants and fungi for “religious, spiritual, healing, or personal growth practices.” ... Enacted, the Psilocybin Wellness and Opportunity Act would allow individuals to consume products containing psilocybin and psilocin, the two main active ingredients in psychedelic mushrooms, under the support of a trained and state-licensed psilocybin service administrator. Mason Marks, a senior fellow and project lead on the Project at Psychedelics Law and Regulation at Harvard Law School who helped to draft some sections of the bill, told Marijuana Moment that it “builds on the momentum of previous psilocybin policy reform efforts in Seattle and across the country.” Voters in neighboring Oregon passed an initiative in 2020.

Former President Donald Trump’s three U.S. Supreme Court appointees likely will be key to the fate of affirmative action in college admissions as the issue of race-conscious policies returns to the high court. ... Shortly after that ruling, for which Gorsuch was widely praised, Harvard Law’s Cass Sunstein warned that Gorsuch’s adherence to the “original public meaning” of legal texts “gives a real boost to opponents of affirmative action.” The key passage, Sunstein wrote, is where Gorsuch writes that to discriminate is to treat an “individual worse than others who are similarly situated,” and text means that the judge’s “focus should be on individuals, not groups.”

In Arizona, citizens can vote early for nearly a month before Election Day. In New Hampshire, early voting doesn't exist. In Florida, any voter can request a mail ballot. In Texas, only some voters can vote absentee, such as those who are old, sick, in jail or out of town. Democrats say this patchwork of state rules makes no sense when citizens vote in federal elections, and have pushed legislation to create uniform rules. Republicans have blocked that effort, arguing that the powers belong in the hands of state lawmakers. Many Republican lawmakers have derided voting rights legislation as a "federal takeover" of elections. ... "No one is proposing that federal officials take over these responsibilities," said Harvard law professor Nicholas O. Stephanopoulos, who has advised some nonprofit groups involved in drafting the bill.

The Center for Health Law and Policy Innovation of Harvard Law School (CHLPI) and the National Viral Hepatitis Roundtable (NVHR) today recognize the Virginia and Alaska state Medicaid programs for removing prior authorization requirements for hepatitis C treatment, effective in each state as of January 2022. Virginia and Alaska become the tenth and eleventh states in the country to remove prior authorizations for hepatitis C treatment for most patients, joining a growing number of states to increase access for Medicaid recipients.

The niceties of corporate finance rarely attract the attention of activists. It is rarer still that those at either end of the political spectrum agree on the need for change. When it comes to the tax system’s preferential treatment for debt over equity, however, both the left-wing Tax Justice Network and the fiscally conservative Tax Foundation agree that the “debt bias” needs correcting. But the degree of consensus belies the difficulty of getting it done. ... What would wholesale reform look like? In a paper published in 2017, Mark Roe of Harvard Law School and Michael Tröge of ESCP Business School put forward some ideas. One is to treat debt less preferentially. They imagine a bank with $50bn in gross profits and $40bn in interest payments. With full deduction for interest and a corporate-tax rate of 20%, the bank would pay tax of $2bn, and have an incentive to rack up debt. But if the interest deduction were removed altogether, a tax rate of 20% would wipe out the bank’s entire net profit. One solution would be to withdraw deductibility, but to lower the tax on gross profits. A rate of 7% in that scenario would yield as much to the taxman, and pose the same burden to the bank, as a 35% tax on net profits.

To an unsettling degree, a large swath of 2022 GOP candidates are deriving energy for their campaigns from the myth that the underlying “cause” of the Jan. 6 rioters was in some sense just. But this mythmaking is on a collision course with another powerful force: the House select committee’s examination of those events, and the actual facts about them that the committee will likely reveal. ... Meanwhile, Justice Department prosecutions of rioters are now pursuing “seditious conspiracy" charges. As Laurence H. Tribe explains, this shows the department believes some of the plotters “specifically intended to overturn the election” and "prevent the lawful transition of power.”

When reports first trickled out that Justice Neil Gorsuch refused to wear a mask in the courtroom, and that as a result his fellow Supreme Court judge Sonia Sotomayor needed to work through Zoom as a result, the backlash was swift and unsurprising. No doubt with an eye toward protecting its reputation as an august body above petty partisan bickering, the court and its representatives quickly moved to squash the rumors. While it is still unclear what exactly has happened, the justices would like you to think everyone remains respectful to each other, while skeptics and leaks insist tensions are at a historic high. ... "There was no obvious division between Democrats and Republicans on the question of how deeply government regulation can affect the workplace or one's bodily integrity," Laurence Tribe, a professor at Harvard Law School, told Salon. "Those were things that cut across party lines. Now what we have is a lot of political ideology with partisan affiliation, and we have the court moving in the direction of that ideological and partisan leaning when it pushes back against OSHA's regulation."

An op-ed by Terri Gerstein: Earlier this month, in a decision that surprised no one who was paying attention, the U.S. Supreme Court’s conservative majority blocked an emergency workplace safety rule by the Occupational Safety and Health Administration requiring large employers to mandate either vaccines or indoor masks and weekly tests for employees.

The U.S. Senate will soon consider an antitrust bill aimed at restricting Big Tech's search practices, and the clash between Tesla CEO Elon Musk and Cooley LLP leads to ethical questions about when a law firm is duty-bound to ignore a big corporate client's wishes. These are some of the stories in corporate legal news you may have missed in the past week. ... Law professor David Wilkins, director of the Harvard Law School Center on the Legal Profession, said based on the story's facts that such a request was "absolutely outrageous." Clients can ask to remove an attorney they don't like from working on the clients' matters, Wilkins told Law360 Pulse, but they have no right to ask a firm to fire the lawyer.

For years, the Boston Police Department’s notorious gang database has troubled local elected officials and civil rights advocates, who have raised serious concerns about the list of suspected associates of criminal street gangs: What makes someone land in the database? How exactly it is being used by police and other law enforcement agencies? How effective is the list overall in preventing crime? ... But the changes haven’t satisfied critics. “To be honest, in terms of the what exactly [BPD] has changed and how effective that’s been, it’s still a little opaque,” said Phillip Torrey, director of the Crimmigration Clinic at Harvard Law School. The clinic offered expertise in the recently won case in the Appeals Court. “And to my knowledge, they still use this arbitrary point system where I’ve seen cases of people who get X amount of points for talking to somebody who BPD thinks is a gang affiliate. And then another person does the exact same thing and they get Y amount of points. So, I haven’t seen consistency within that sort of arbitrary point system.”

New data from the Upcycled Food Association (UFA) shows upcycled products are having an unprecedented and growing impact on the ability to prevent food waste. The organization predicts that the 141 Upcycled Certified™ products and ingredients they have certified will have the ability to prevent more than 703 million pounds of food waste per year. “Upcycled foods use ingredients that otherwise would not have gone to human consumption, are procured and produced using verifiable supply chains, and have a positive impact on the environment,” according to an official definition co-authored by Harvard Law School [Food Law and Policy Clinic], Drexel University, World Wildlife Fund (WWF), Natural Resources Defense Council (NRDC), ReFED, and other experts.

Religion isn’t the first thing that comes to mind when looking at the Supreme Court’s latest criminal-sentencing dispute. But it’s “lurking in the background,” Joshua McDaniel said on Bloomberg Law’s Cases and Controversies podcast. Harvard Law’s religious-freedom clinic director explained what the new clinic does and how it got involved in that sentencing case, Concepcion v. United States. The clinic’s amicus brief highlighted spiritual growth and conversion as powerful evidence of rehabilitation for prisoners seeking resentencing under the First Step Act.

Unilever faces an uphill battle to sell Ben & Jerry's, with lawyers warning that the ice-cream brand's Left-wing political activism could pose problems for any prospective buyer. The consumer goods giant unveiled ambitions last week to offload parts of its business, including lower-growth food brands, in an effort to supercharge a push into health and hygiene. ... Jesse Fried, Dane Professor of Law at Harvard Law School, said any new buyer for Ben & Jerry's would "step into the shoes of Unilever and inherit the current board arrangement, as the merger agreement binds Unilever as well as any successors". He said a new owner could decide to litigate against the issue - and in his view, they would win the right to override Ben & Jerry's board decisions.

An open letter urging Spotify to crack down on COVID-19 misinformation has gained the signatures of more than a thousand doctors, scientists and health professionals spurred by growing concerns over anti-vaccine rhetoric on the audio app's hit podcast, The Joe Rogan Experience. ... "Wherever you have users generating content, you're going to have all of the same content moderation issues and controversies that you have in any other space," said Evelyn Douek, a research fellow at Columbia University's Knight First Amendment Institute.

A Florida appellate judge used her dissenting opinion in a parental rights case to call out a Miami-based attorney for misgendering her twice in a court filing, saying it "does not appear to be a typographical error." ... But Kendra Albert, a technology lawyer and clinical instructor at Harvard Law School's Cyberlaw Clinic who uses plural pronouns, shared a different take on the judge's opinion, saying, "Perhaps next time this judge can try and make her point without what absolutely reads as weird dig at trans people? 'Granted, gendered pronouns are tricky in this day and age...'"

Advocates for the disabled, public libraries and documentary filmmakers have urged the D.C. Circuit to rule that a law making it a crime to circumvent technical features controlling access to copyrighted works violates the First Amendment. ... Copyright scholars Pamela Samuelson of the University of California, Berkeley School of Law and Rebecca Tushnet of Harvard Law School also filed an amicus brief Wednesday, arguing that the provisions "disregard and override traditional mechanisms within the Copyright Act that struck the balance between copyright protection and First Amendment interests."

Over 25 percent of the tule elk herd held behind a fence in California’s Point Reyes National Seashore have died this summer. The loss of 72 elk, who faced slow, agonizing deaths from thirst and starvation, brings the population to its lowest since 1993. While the tule elk herd dwindles, an ongoing court battle is being fought over how the National Park Service is managing them. ... According to Kate Barnekow, lead attorney on the Harvard Law lawsuit, the National Park Service announced in December their intention to revise the General Management Plan over the next three years. Tellingly, this announcement came one day before the Park Service was due to respond to the lawsuit in court. Barnekow is concerned that this is an attempt by the Park Service to avoid being told by the court to update the plan, calling it “just another move in a decades-long history to avoid taking actions that they are legally required–as well as ethically obligated–to take.”

Gov. Charlie Baker weighed in on the outrage and questions surrounding the disappearance of 7-year-old Harmony Montgomery and New Hampshire Gov. Chris Sununu’s accusations against a Massachusetts judge in the case. ... “I do not think it's the appropriate response,” said Elizabeth Bartholet, a Harvard child welfare expert. Bartholet said Baker and the legislature know enough already to change current state policy, which she said too often gives unfit biological parents the benefit of the doubt.

Juliette Kayyem on BPR ... Blair Miller and Elizabeth Bartholet discussed the state of adoption laws and child welfare amid the disappearance of Harmony Montgomery. Miller is a Boston Channel 25 reporter and the adoptive father of Harmony Montgomery’s brother. Bartholet is the Morris Wasserstein Professor of Law, Emeritus, at Harvard Law School and faculty director of the Child Advocacy Program.

An obscure 19th-century provision of the U.S. Constitution that barred members of the Confederacy from holding political office is back in the national conversation — and some are hoping it can keep Donald J. Trump and his allies off the ballot. ... Laurence Tribe, an influential law professor at Harvard University, has held private conversations with several members of Congress on the topic as they puzzle through how statutes written in the 1860s might apply in an entirely new context. And while Tribe’s view is that Jan. 6 was indeed an insurrection, it is by no means obvious how courts will interpret the 14th Amendment without clearer signals from Congress.