Media Mentions

News that University of Pennsylvania Carey Law School Dean Theodore Ruger intends to pursue sanctions against controversial law professor Amy Wax has sparked a debate about academic freedom, with members of the legal academy nationwide weighing in on both sides. ... “The racist anti-Asian statements by Professor Amy Wax are so beyond the pale that she should be shunned by colleagues and students alike, no less than if she had urged the exclusion of Blacks, Jews, or Women from American life,” wrote Laurence Tribe, Carl M. Loeb University Professor, Emeritus, at Harvard Law School.

A recent federal appeals court ruling calls into question the legality of gang databases and how law enforcement agencies around the country use lists of mostly Black and Latino men and boys to target policing activity, from stop-and-frisks to deportations. ... Lawyers at Harvard Law School’s Immigration and Refugee Clinical Program filed an amicus brief on Diaz Ortiz’ behalf arguing that unsubstantiated gang allegations violate the Constitution’s due process requirements, regardless of how they’re used.

 An op-ed by Noah Feldman: In the shadow of Thursday’s Supreme Court ruling against a sweeping federal vaccine mandate, another crucial legal battle is playing out: a fight about whether and how much to dismantle the regulatory apparatus of the U.S. government. The latest skirmish unfolded in a concurrence to the mandate decision by Justice Neil Gorsuch, who has emerged as the point man of an attack on existing constitutional doctrine governing administrative agencies like the Occupational Safety and Health Administration. Joined by Justices Clarence Thomas and Samuel Alito, Gorsuch seized the opportunity to advance his cause through the legal challenge to OSHA’s authority to regulate vaccine requirements.

Coming up on today's show: ... Laurence Tribe, university professor and professor of constitutional law emeritus at Harvard Law School, talks about the Supreme Court and U.S. democracy, previewing his participation in the 92nd St. Y's conference on Thursday.

A decade after federal regulators opened the door to competition for development of large transmission projects, states — acting at the request of incumbent utilities — are slamming it shut. ... “That’s particularly true in MISO where regional projects basically disappeared as competition went into effect,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School’s Environmental and Energy Law Program. “One reason that’s happening is because it’s so much easier to spend your money where there’s no competition and basically no oversight than to risk going through a competitive process.”

A Harvard Law School clinic has sued federal immigration officials for failing to release records about the use of solitary confinement in immigration detention facilities. The Harvard Immigration and Refugee Clinical Program said in a lawsuit filed in Boston federal court that it submitted records requests to the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement, but the agencies haven’t fully complied in more than four years. The Cambridge-based clinic said immigrant rights advocates have raised concerns over the use of solitary confinement on vulnerable immigrant populations, including LGBTQ individuals and people with disabilities.

The legacy of Martin Luther King Jr. as a relentless fighter for equality and justice is being distorted, says historian and Harvard Law Professor Annette Gordon-Reed. ... “The interesting thing about Black people is that we have founding mothers and founding fathers: Douglass, Tubman, Sojourner Truth,” Gordon-Reed said. “Men and women participating on an equal basis, however they could, to try to advance Black people.”

The Biden administration’s plan announced yesterday to pump $20 billion into expansion of the nation’s transmission networks will target “shovel ready” projects that deliver clean energy, at the same time a nationwide grid expansion is planned and advanced, according to an administration official. ... DOE’s initiative could also inform FERC’s potential transmission reforms by providing additional, informed research and analyses on transmission needs, said Ari Peskoe, director of the Electricity Law Initiative at Harvard University. Typically, FERC has relied on industry players to identify transmission solutions, even though the independent agency and others have argued that the industry has “underinvested in large-scale projects,” Peskoe said.

We’ve reached a turning point on the road to accountability for those who led the Jan. 6 insurrection, whether they stormed the physical congressional barricades or not. ... By Laurence H. Tribe, professor of constitutional law at Harvard and Dennis Aftergut, former federal prosecutor

The Justice Department’s decision to charge Oath Keepers with seditious conspiracy last week makes clear that prosecutors consider the Jan. 6 attack on the Capitol part of an organized assault to prevent the peaceful transfer of presidential power. ... “The other shoe has yet to drop — that is: When will the Justice Department promptly and exhaustively investigate the part of the coup attempt that I believe came perilously close to ending American constitutional democracy, basically, without a drop of blood?” said Harvard Law School Professor Laurence Tribe, a constitutional scholar and outspoken Trump critic.

Teresa Owusu-Adjei has been PwC’s U.K. head of legal for nearly a year, but there is something she has only recently told her team. Despite heading up a 400-strong legal business, she is not actually a solicitor. ... Robert Couture, a senior research fellow at Harvard Law School’s Center on the Legal Profession, interviewed 20 senior leaders at the Global 100 firms about what they knew about and how they were responding to the Big Four. Most did not have a clue.

The decision by Senators Kyrsten Sinema and Joe Manchin to block their fellow Democrats from passing new federal voting-rights legislation clears the path for years of tightening ballot restrictions in Republican-controlled states. It also marks a resounding triumph for Chief Justice John Roberts in his four-decade quest to roll back the federal government’s role in protecting voter rights. ...  “There’s no consistent explanation that can account for Roberts’s rulings in election-law cases other than just a partisan motive,” [Nicholas] Stephanopoulos, echoing the view of many critics, told me. “Intervene when it’s restrictions on money in politics; don’t intervene when it’s partisan gerrymandering or voting restrictions. Intervene again when it’s Congress trying to do something about racial vote suppression or racial vote dilution. Sometimes mention the Framers, sometimes don’t mention the Framers. It’s anything goes as long as the final outcome is the preferred partisan outcome.”

Throughout the pandemic, law firms have uttered the word “culture” in a variety of contexts and implications—how their culture distinguishes the firm in the war for talent, how their culture has evolved to accommodate remote and hybrid work, why getting back to the office is so crucial to maintain culture. ... “Industrial psychologists would say, there’s a concern that you’re always trying to manage the delta—the difference between what the company says it is and what people experience on the ground,” said Harvard Law professor Scott Westfahl.

A criminal record — or even an accusation long ago dismissed — can be the gift that keeps on taking. Taking away opportunities for a good job, an apartment, a loan. ... Katherine Naples-Mitchell of Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, who filed an amicus brief on the issue, made the case, in an interview with the Globe editorial board, that the judge’s denial wasn’t “in the best interests of justice” as demanded by the law. It “didn’t address the harms to employment or housing,” nor did it “pay conscientious attention to the racial implications” of the state’s expungement law and “the history of disparate enforcement.”

A former federal judge is calling for changes to how other judges think about sentencing, even as they face mandatory minimums and grapple with the sentencing guidelines. Nancy Gertner, who spent 17 years on the federal bench in Massachusetts, wrote in a new paper this week that the role of judges in sentencing has changed over the decades, particularly with the advent of mandatory sentencing guidelines. Those guidelines combined with laws requiring mandatory minimum sentences, she writes, have caused judges to feel more accustomed to handing down longer sentences—even when they have the discretion to do otherwise.

Excerpted from “Civil Rights Queen: Constance Baker Motley and the Struggle for Equality” by Tomiko Brown-Nagin, Dean, Harvard Radcliffe Institute, Daniel P.S. Paul Professor of Constitutional Law, and Professor of History. In the spring of 1963, the eyes of the nation turned to Birmingham, Alabama, then known as the home of a thriving iron and steel industry. In April and May of that year, Birmingham, a land trapped in a “Rip Van Winkle” slumber on issues of race, and the nation’s “chief symbol of racial intolerance,” according to Dr. Martin Luther King Jr., became a flashpoint in the Black struggle for equality.

The seditious conspiracy indictment handed up against Oath Keepers founder Stewart Rhodes and 10 others stemming from the Jan. 6, 2021, attack on the US Capitol shows prosecutors are upping the ante in the sprawling probe, legal experts said Thursday. ... “Good to see DOJ moving up the ladder, but going after the crime that can be established without proof of force or violence — the failed conspiracy to get officials like the VP to overturn the electoral vote count — needn’t start on the lower rungs,” tweeted Laurence Tribe, a Harvard Law professor.

The claim: The Nuremberg Code says 'mandating masks on the citizens of a nation' is a war crime. As the highly contagious omicron coronavirus variant spreads around the country, several states have mask mandates in place. Some social media users say they violate a set of research ethics dating back to World War II. As evidence, a Jan. 3 Instagram post claims to show a section of the Nuremberg Code. ... “The claim that this violates the Nuremberg Code is 100% false," I. Glenn Cohen, deputy dean of the Harvard Law School, said in an email.

In the year it took the Federal Trade Commission to get a judge to green-light its antitrust suit against Facebook this week, Facebook has already changed its name and shifted its focus. ...The legal process is slow, in part, because the stakes are so high. Antitrust decisions that go against corporate giants are rare, but — like the 1982 breakup of AT&T — they reverberate for decades. The FTC suit — along with the Justice Department's antitrust case against Google — is a "principal, landmark antitrust action," said Daniel Francis, former deputy director of the FTC competition bureau and a lecturer at Harvard Law School.

On Jan. 6, 2021, a violent mob of rally attendees, fresh from hearing President Donald Trumpspeak near the White House, marched to the Capitol, forced their way past barricades and a line of police officers and stormed the building, interrupting the certification of President Joe Biden’s electoral victory. ... Republicans then largely boycotted the select committee established by Pelosi in July after she rejected two of McCarthy’s picks. “I think when McCarthy decided not to join formally, the decision was to basically refuse to accept anything other than partisan narrative. I have my story; you have your story. And we lose this very, very fundamental tool to develop a shared sense of what actually happened,” said Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at Harvard University who has studied disinformation within the Republican Party. Benkler blamed a “propaganda feedback loop” where GOP politicians, conservative-leaning media and activated voters all reinforce and police one another.

Members of the House select committee investigating the January 6 Capitol Hill insurrection are weighing what options they have to compel their fellow members of Congress to cooperate with their probe. ... Legal scholar and Harvard professor Laurence Tribe told CNN, "The Speech and Debate Clause and the Arrest Clause protect members from certain inquiries and procedures originating outside Congress, but only political considerations restrict use of the subpoena power by Congress itself to compel sitting members to testify or produce documents needed by a committee like the Special House Committee."