Media Mentions

American conceptual artist Barbara Kruger is urging the U.S. Supreme Court to look into the Second Circuit's decision that found Andy Warhol's artwork didn't make fair use of a photo of music legend Prince, saying that such works are "far from lacking creativity." ... Also on Monday, a group of copyright law professors, including Rebecca Tushnet of Harvard Law School, asked the Supreme Court to review the case. They argued that the Second Circuit wrongly disregarded the meaning of the contending works to determine why Warhol's art was transformative, which ultimately infected the court's fair use analysis. "It's [an] important fair use case for all artists, especially those without big names and deep pockets, and I believe the court will see its significance," Tushnet told Law360 by email Wednesday.

For decades, champions of the video game industry have touted gaming’s cultural impact as the equal of literature, film and music. Traditionally, the classic works from those mediums have been preserved for study by future generations, and amid gaming’s global rise in relevance, a group of video game scholars and advocates is pushing to preserve the game industry’s historic titles and legacy in a similar fashion. In the process, though, the would-be preservationists have found a number of challenges that include, ironically, legal opposition from video game companies and the Entertainment Software Association (ESA), a trade organization that lobbies on behalf of game publishers. ... In hopes of resolving the legal challenges around game preservation, a group led by Kendra Albert, an attorney and instructor at Harvard Law School’s Cyberlaw Clinic, took up that legal fight. Albert has argued to the U.S. Copyright Office that libraries and research institutions should be allowed to provide off-premises access to games for researchers. That request was argued against by the ESA, Motion Picture Association (formerly known as the MPAA) and the Alliance for Recorded Music. After the initial victory for older titles no longer on the market in 2018, expanded access was denied by the Copyright Office in October 2021.

An op-ed by Laurence H. Tribe and Dennis Aftergut: In a Jan. 5 speech to the nation, Attorney General Merrick Garland said, “We will, and we must speak through our actions.” Garland’s well-crafted words told Americans what they needed to hear. We maintain hope that he will swiftly investigate the leaders behind the violent Jan. 6, 2021, Capitol attack by a pro-Trump mob that sought to prevent Congress from certifying the 2020 Electoral College vote. But he must also spearhead an investigation into the earlier, bloodless coup attempt that failed to overturn the election and thus made force the only option to interrupt the transfer of power. Unfortunately, little in the attorney general’s words provided any firm basis for that hope.

Next month, the Supreme Court will hear oral arguments in a case involving an Obama-era power-plant rule that’s no longer in effect, and never really was. The Court has agreed to hear so many high-profile cases this term, on subjects ranging from abortion to gun rights to vaccine mandates, that this one—West Virginia v. Environmental Protection Agency—has received relatively little attention beyond legal circles. But its potential ramifications are profound. At a minimum, the Court’s ruling on the case is likely to make it difficult for the Biden Administration to curtail greenhouse-gas emissions. The ruling could also go much further and hobble the Administration’s efforts to protect the environment and public health. ... “The whole model of the New Deal state is that Congress passes laws that delegate to administrative agencies sweeping regulatory power to address the public health and welfare of the American people,” Richard Lazarus, a professor at Harvard Law School, explained. “And they don’t lay out the details, because they couldn’t possibly do that.” These days, of course, Congress is barely even able to pass laws. It hasn’t approved a significant piece of environmental legislation since 1990. The practical effect of the Court’s insisting that it lay out its intentions in detail before executive agencies issue regulations to address new threats—major or otherwise—would be to prevent those rules from being written. This, presumably, is exactly what the coal companies want, and what the public—in red states, and also in blue—should be terrified of.

Persuading judges to wean themselves from the “habit of mass incarceration” is a critical step in transforming the American justice system, says former federal judge Nancy Gertner. Much of the focus on justice reform has been on changing the behavior of prosecutors and police, with judges often assumed to be above the fray, according to Gertner, former senior judge at the U.S. District Court for the District of Massachusetts, and now a professor of practice at Harvard Law School. But in fact little headway is possible without the active engagement of judges willing to overcome deeply engrained resistance to changes in sentencing practices, Gertner wrote in a paper commissioned for the Executive Session on the Future of Justice Policy, part of the Columbia University Justice Lab’s Square One Project on reimagining justice. “The goal is to invite judges to reimagine what community safety really looks like, not with police, prosecutors, and exorbitant mandatory minimums—and the role that judges can play in facilitating it,” Gertner wrote in the paper released Tuesday.

An op-ed by Nancy Gertner: On June 30, 2020, the seven justices of the Supreme Judicial Court, including Chief Justice Ralph Gants, who tragically died months later, wrote an extraordinary letter to the legal community saying: “We must recognize and confront the inequality and injustice … of the disproportionate incarceration of African-Americans, and challenge the untruths and unfair stereotypes about African-Americans that have been used to justify or rationalize their repression.” Only a year later, on December 22, 2021, in Commonwealth v. Sweeting-Bailey, the court’s majority ignored that plea.

Over the past two centuries, the quickest way to spot a gerrymandered map of congressional districts has been to look at their shapes. Distended, jagged, almost laughably contorted boundaries were usually a sign that mapmakers were trying to tip the scales toward one political party or the other. ... One way to stymie partisan gerrymandering is by putting redistricting in the hands of commissions that include Democrats and Republicans. “You can pick half a dozen different parameters, and on every single one of them, you're seeing progress in states that have independent commissions,” said Nicholas Stephanopoulos, a law professor at Harvard University. Independent commissions aren’t a panacea. In some states, legislators have all but ignored the decisions of poorly structured panels. But when designed carefully, the commissions are a significant improvement over the status quo. Democrats in the House have proposed mandating independent commissions in their voting rights bill, the For the People Act. But Republicans have blocked the legislation in the Senate. “With the politicians, once they’re pursuing their self-interests, everything else goes out the window,” Mr. Stephanopoulos said.

With the Supreme Court now set to hear in February a major case over the regulatory powers of the Environmental Protection Agency, some are already…

Zenobia Shepherd can’t wrap her mind around her daughter’s death. Her heart won’t let her. Leilani Jordan, who had developmental challenges and was diagnosed with cerebral palsy, died in April 2020 of complications from covid-19. She was 27 and working in a Maryland grocery store when she fell ill and days later became one of the first faces of the pandemic’s devastating death toll. ... Carmel Shachar, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, said the question of whether an employer is liable if a worker is exposed to the coronavirus in the workplace is “is still fairly novel because the pandemic is still a fairly new phenomenon.” “Litigation around covid-19 workplace exposure has been increasing over the last year, and will likely continue to increase with the omicron explosion of cases,” Shachar said in an email.

The number of homeschoolers in Virginia has increased by nearly 40% since 2019, making up about 5% of Virginia’s total public school enrollment. There are now around 62,000 homeschoolers in Virginia, according to the Virginia Department of Education. That number is down slightly from more than 65,500 homeschoolers during the 2020-2021 school year. ... In April 2020, a Harvard law professor wrote in Harvard Magazine calling for a ban on homeschooling, claiming that the “dangerous” practice isolates children and fails to prepare them for participating in a democratic society. “The issue is, do we think that parents should have 24/7, essentially authoritarian control over their children from ages zero to 18? I think that’s dangerous,” Harvard Law professor Elizabeth Bartholet said in the article. Homeschooling continues to remain popular, however.

When it comes to possible criminal prosecution of the defeated former president for seeking to overthrow the 2020 election, most attention has understandably focused on the Justice Department. As the American people’s chief prosecutor, the department is conducting a massive investigation and prosecution effort of those involved in the coup effort. ... Unlike the federal case concerning instigation of a violent insurrection, Trump’s direct participation is not at issue in Georgia. While intent is still a hurdle for prosecutors in the Georgia case, the nature of Trump’s demand suggests he was not seeking an accurate vote count, but a count that would make him the winner. As constitutional scholar Laurence H. Tribe previously opined, “It’s very hard to understand that conversation any other way when he says ‘you and your lawyer’ are going to be in basically criminal trouble if you don’t somehow, ‘find’ one more vote than the number by which I lost to Biden, according to your count.” Trump’s demand, Tribe says, was “really strong-arming extortion, a violation of the election laws.”

An op-ed by Martha Minow and Aris Hadjipanteli ’23:Democrats and Republicans agree on almost nothing, not even what to call the incident a year ago at the Capitol. Was it an insurrection or a protest? But they do agree that the technology business is failing both its users and to the media industry from which it pulls so much of its content without paying for it. It’s time for Congress to turn this rare consensus into action by passing the Journalism Competition and Preservation Act (JCPA) to tackle some of the consequences of tech’s monopoly power. As of 2018, Google and Facebook together had nearly four times as much revenue as the entirety of the U.S. news media (TV, print, and digital). They have only grown tremendously since then. When Google users read a news story, 65 percent do not click through to the news publishers’ websites. Google thus disconnects news content from its sources and leaves the journalists without compensation.

An op-ed by Carmel Shachar and I. Glenn Cohen: “There are three quarters of a million new [COVID] cases yesterday. . . [t]hat is 10 times as many as when OSHA put in this ruling. The hospitals are today, yesterday, full. . . . Can you ask us—is that what you are doing now—to stop this vaccination rule with nearly one million people, nearly three quarters of a million people, new cases every day?” This was the dramatic question asked on Friday by Supreme Court Justice Stephen Breyer of Scott Keller, one of the attorneys seeking a stay of an Emergency Temporary Standard (ETS) promulgated by Occupational Safety and Health Administration (OHSA) in the case of National Federation of Independent Business v. Department of Labor. This so called “Test-or-Vaccinate” mandate requires employers across the country with more than 100 employees to implement either vaccination or testing and masking policies for their employees. A majority of the Justices seem poised to endorse not only a temporary stay of the standard, but a permanent injunction against OSHA’s power to act, and the country will be worse for it.

...Last week, Democrats announced they would bring voting rights to the fore once again. Seemingly energized by the first anniversary of the Jan. 6 insurrection on the U.S. Capitol, when supporters of then-President Donald Trump tried to prevent the certification of the results of the 2020 presidential election, Senate Majority Leader Chuck Schumer said his chamber would soon vote on easing filibuster rules so that voting rights legislation could possibly — finally — make it across the finish line. ... But even if Democrats aren’t able to pass voting rights legislation, they can at least establish themselves as the party in favor of democracy and voting rights. The question is, will this be enough for their base? At least one expert told me that the party risks looking feckless, if not useless, if they cannot deliver. “You don’t get points for trying; you get points for succeeding,” said Nicholas Stephanopoulos, a professor of law at Harvard Law School. “So the party base who cares about voting rights as an issue are not going to care that Democrats tried and failed. If anything, they’ll be irritated and disappointed if the bill has a lot of salience and still doesn’t pass.”

Lani Guinier’s critics misjudged her if they hoped she would silently leave the public stage after her 1993 nomination to lead the US Justice Department’s Civil Rights Division crumbled amid rising conservative criticism and fading liberal backing. Nearly a year to the day after President Bill Clinton withdrew Ms. Guinier’s nomination, she spoke at a college graduation where she chastised conservatives for misrepresenting her work and supporters for saying she should have muffled her views. “These people suggest that if I had been more quiet about what I was about, that I would have gotten the job, and then I could have gone on and done the job,” she told graduates of Hunter College in New York City in June 1994. “But I believe that if silence is the price of admission, it is also the cost of doing the job.”

President Joe Biden’s ambitious social spending and climate-change package of legislation, the Build Back Better Act, appears unlikely to pass as originally written after the moderate West Virginia Democrat Sen. Joe Manchin declared his opposition in the days before Christmas and reiterated this week that there are no ongoing discussions over the bill. ... But there are few other policies that could motivate Biden’s base more than student loan forgiveness, given that voters with college degrees support Biden as president in much greater numbers than voters without degrees. ... “Everybody agrees that the Secretary of Education is empowered to make adjustments on federal student loans,” wrote Howell Jackson, a Harvard University law professor in an April article in the Regulatory Review. “The debate turns on the precise meaning of provisions of the Higher Education Act of 1965 which confer upon the Secretary the power to ‘consent to modification’ of, and to ‘compromise, waive, or release,’ amounts due on certain student loans.”

For the most part, public companies are controlled by the votes of common shareholders and the corporate directors they elect. But asset managers have significant sway. Harvard Law School’s John C. Coates extrapolates this concentration of ownership to “The Problem of Twelve.” In a working paper, he argued that “in the near future roughly twelve individuals will have practical power over the majority of U.S. public companies.” He meant that asset managers like BlackRock Inc., BLK -2.64% Vanguard Group and Fidelity Investments—primarily investing on behalf of retirement investors and savers—would essentially serve as a 12-headed corporate board, lording over all public companies.

Lani Guinier, a lawyer whose innovative and provocative writings on racial justice and voting rights were used to undermine her nomination to lead the Justice Department’s Civil Rights Division early in the presidency of Bill Clinton, died Jan. 7 at an assisted-living facility in Cambridge, Mass. She was 71.

Democrats, activists and historians have urged the president for months to take the fight to Republicans who continue to spread lies about the 2020 election and to shield democracy from ongoing threats. On Thursday, Joe Biden answered in his most direct and cogent speech on the matter to date. Biden not only addressed the violent acts of that day carried out by pro-Donald Trump rioters who sought to overturn the election, but detailed the sustained effort by Trump and his allies to subvert the nation’s electoral system in the future. ... Historian Laurence Tribe, who has known Biden since the 1980s and has at times advised the president, spoke to Klain after Biden’s address, relaying his belief that the speech was Biden at his best. “Equal to anything that JFK did or anything that Obama did,” Tribe recalled telling Klain. “There were no rose-colored glasses, the president was not covering the difficulty of challenges that we face,” Tribe added. Tribe, like others, has long wanted Biden to make such explicit remarks. “I've certainly been waiting, and I'm so glad that he finally did this.”

An article by Eli Y. Adashi and Glenn Cohen: On September 2, 2021, the White House released its long-awaited pandemic preparedness proposal titled American Pandemic Preparedness: Transforming Our Capabilities.1 Called for by presidential executive order 13987 and National Security Memorandum 1, the proposal, 8 months in the making, comprises a whole-of-government review and update of US national biopreparedness policies.2,3 The pandemic preparedness proposal is ambitious and all-encompassing and acknowledges that the transformation of “our medical defenses” will require “extensive scientific and technological efforts.”1 In this Viewpoint, we review the leading objectives of the pandemic preparedness proposal, discuss the outcome of comparable past federal efforts, and emphasize the imperative of intragovernmental coordination.

Another supreme battle at the U.S. Supreme Court Friday: In a special session, the justices are hearing expedited arguments in cases challenging two major Biden administration regulations aimed at increasing the number of vaccinated workers. The cases are in a preliminary posture, but how the court rules will very likely signal how these issues are ultimately resolved. ... "I think this is a case that's a test of how truly radical or conservative this court is or is not," says Harvard Law professor Richard Lazarus. "The question is whether the Supreme Court is going to try to totally upend the ability of our national government to safeguard the nation's health and safety amidst a global pandemic sweeping the country."