Media Mentions

Imagine the angst and anger among Democrats if Republicans take control of the House after next year’s midterm elections and Nancy Pelosi has to hand over the speaker’s gavel to the other party. Now imagine she’s handing it to Donald Trump. In what could be the ultimate trolling of Democrats, some prominent Trump allies are suggesting House Republicans should elect him speaker if they hold the majority, a move that would place him second to the vice president in the line of succession for the presidency and allow him to preside over a chamber that an angry mob of supporters tried to forcibly enter during the deadly Jan. 6 insurrection. ... “It’s hard to imagine a more self-destructive thing for the House of Representatives to do than to elect a twice-impeached, deeply unprincipled, psychologically unstable, emotionally immature, and manifestly corrupt private citizen like former president Trump to the position of speaker of the House,” Laurence H. Tribe, an emeritus Harvard Law professor and constitutional scholar, said in an e-mail. “But the Constitution doesn’t rule out novel actions just because they’re self-destructive, unprecedented, and obviously stupid.”

A management strategy known as the results-only work environment (ROWE) has seen a surge in interest during the pandemic, says one of the architects of the system. "I think based on the pandemic … companies are more ready now to look at something bold, look at something progressive," said Jody Thompson, who first developed the concept in 2004 with co-founder Cali Ressler when they both worked for electronics giant Best Buy. ... Ashley Nunes, a Harvard Law School research fellow who focuses on work life, said workplaces "should move increasingly toward a product-oriented outcome versus a time-based outcome." "The reality is that you are actually not getting paid to sit at your desk from 8 a.m. to 5 p.m. You're getting paid to actually get a job done during that time," said Nunes, who is also policy director at the Washington, D.C.-based research institute R Street.

Watch: Harvard law professors Randall Kennedy and Noah Feldman join Fareed to examine the conversation around critical race theory in America today.

It may have seemed like an obscure United Nations conclave, but a meeting this week in Geneva was followed intently by experts in artificial intelligence, military strategy, disarmament and humanitarian law. The reason for the interest? Killer robots — drones, guns and bombs that decide on their own, with artificial brains, whether to attack and kill — and what should be done, if anything, to regulate or ban them. ... In advance of the conference, Human Rights Watch and Harvard Law School’s International Human Rights Clinic called for steps toward a legally binding agreement that requires human control at all times. “Robots lack the compassion, empathy, mercy, and judgment necessary to treat humans humanely, and they cannot understand the inherent worth of human life,” the groups argued in a briefing paper to support their recommendations.

Courts in the United States and abroad served as flashpoints on climate change this year as governments struggled to address the growing threat. U.S. climate litigation is expected to gain velocity in 2022, following a pair of unrelated Supreme Court actions concerning EPA’s carbon rules for power plants and local governments’ climate liability lawsuits. The legal battles have attracted heightened attention as the Biden administration fights to enact an ambitious climate change agenda amid congressional wrangling. “At the moment, this litigation is a sign of being stuck with second and third best options,“ said Jody Freeman, director of Harvard Law School’s Environmental and Energy Law Program and a former Obama White House adviser. “It’s a sign of the times: It’s a grind even with an administration that is doing its best, that cares about the issue. It’s a grind because Congress is only prepared to spend some money but not impose any kind of regulations or standards.”

An op-ed by Laurence Tribe: Only free and fair elections in which the loser abides by the result stand between each of us and life at the mercy of a despotic regime – one we had no voice in choosing and one that can freely violate all our rights. So everything is at stake in the peaceful transfer of power from a government that has lost its people’s confidence to its victorious successor. It was that peaceful transfer that Trump and his minions sought to obstruct and almost succeeded in overthrowing when Joe Biden was elected president. A year has passed since Trump’s attempted coup and his supporters’ violent storming of the United States Capitol on 6 January 2021, in a nearly successful effort to prevent Congress from certifying Trump’s decisive loss of the election to Biden. Watching the images that day of the seat of US democracy overtaken and defiled, it was impossible not to viscerally feel the grave danger that confronted the republic. In the tumultuous year since, the immediacy of that sensation has waned – and the magnitude of the stakes has receded from memory.  

When his contract renewal was in doubt four years ago, Lawrence O’Donnell begged his viewers to help keep him on the air at MSNBC. Now, as the left-leaning network’s prime-time lineup is at its most unstable point in a decade, the 70-year-old anchor has inadvertently become MSNBC’s most valuable star; or, at least, its most dependable one, owing to the rare, direct line he enjoys into the Biden White House. ... "This is going to be an important time for him, but I thought about him as a very important player at MSNBC for a long time," said Laurence Tribe, the famed Harvard law professor and regular Last Word guest. "He knows more about the Senate than almost anyone else on television."

The brilliance of award-winning historian and Harvard law professor Annette Gordon-Reed is her ability to tell the stories of those whose voices and experiences have been marginalized. In her groundbreaking scholarship on Thomas Jefferson and enslaved Sally Hemings, Gordon-Reed debunked conventional historical narratives, revealing complex, instructive truths about the relationship. Now, in On Juneteenth, a collection of essays about Texas, Gordon-Reed’s family and the day in 1865 when enslaved people in Texas learned of their emancipation, the historian whose Texas family tree extends on her mother’s side to the 1820s and on her father’s side at least to the 1860s, speaks truth to Texas lore with incisive clarity. She’s a worthy finalist for 2021 Dallas Morning News Texan of the Year.

The past few years have initiated many challenging conversations. We’ve sparred with loved ones over how to live during these difficult times. Businesses have struggled to communicate plans against a mutable compliance landscape. Communities have fractured along the fault lines of hot-button issues. And these don’t even touch the smoldering discourse crater that is the social media landscape. ... Another potential source of disconnect is blind spots. These are the signals that are visible to everyone except you. According to Sheila Heen, founder of Triad Consulting and a lecturer at Harvard Law School, there are three main blind spots: facial expressions, tone of voice, and body language. ... “And that’s the nature of blind spots; you don’t even know where to begin or what it is about yourself that you’re not seeing,” Heen says. “I know what I look like when I’m looking at myself standing still in the mirror, but I don’t know what I look like in action, in life.”

An op-ed by Noah Feldman: Are we living in 1858 or 1968? That is, are America’s divisions so profound and political institutions so crippled that we are poised for a breakdown akin to the Civil War? Or is the current polarization the product of conflicting social forces that can be gradually reconciled or redirected into more healthy electoral competition? In this more hopeful scenario, even if we undergo 1970s-style economic malaise and the odd trauma like Watergate, we re-emerge and enter a phase of comparative national health and even greatness.

After a brief pandemic respite, share buybacks are back with a vengeance. In the third quarter of 2021, S&P 500 companies spent a record $235 billion on buybacks, adding to the $6.3 trillion spent on stock repurchases in the decade before the pandemic. In a time of supply chain snafus, a justifiably restive workforce, and great economic transitions, corporate America could be investing that money in the future of our economy—in logistics, workers and productive capacity. Instead, buybacks are artificially tipping the scales of skittish markets, while rewarding executives unjustifiably. ... Corporate insiders need to be completely prohibited from personally benefiting during periods of stock buyback activity. The research of former SEC Commissioner Robert Jackson Jr., economist Bill Lazonick, Harvard Law Professor Jesse Fried, and Lenore Palladino (a co-author of this essay) has identified the legal loopholes that allow corporate insiders to sell their own personal shares when they know that buyback purchases are happening, even though such activity has not yet been disclosed to the outside world. Large net sales of insider holdings are more than twice as likely to take place in periods of substantial buyback activity, Palladino has found. It is time we end senior executives’ opportunities to squander value by self-dealing through timely buybacks.

Chinese stocks that trade in the U.S. have always been a double-edged sword for investors, but Americans now face a wicked blade as years of buildup leads to an inevitable end. After hundreds of sketchy offerings on U.S. markets for young China-based companies with huge potential for either growth or complete collapse, the market in these stocks fell apart in 2021. “Valuations have declined sharply. There have been no IPOs in the last few months. And there have been a number of going-private transactions,” said Jesse Fried, a professor at Harvard Law School.

Comments made by U.S. Supreme Court Justice Amy Coney Barrett regarding abortion alternatives are drawing ire from activists. As abortion rights continue to be debated around the country, Barrett said in early December that women with unwanted pregnancies with no access to abortions do not necessarily have to be forced to raise the child. Instead, she argued, the mother could give birth to the child and then place the child up for adoption. However, both abortion and adoption activists say that it is not that simple. ... "It's ridiculous to say it's no problem to eliminate abortion — just place the kids for adoption," said Harvard Law professor Elizabeth Bartholet. "It's not going to be an emotion-free nonevent. There's going to be bonding and connection, and a sense that it's an unnatural act to give your child away."

In May of 2013, the National Center for Missing and Exploited Children alerted the Norfolk County District Attorney’s Detective Unit to “xBostonDad,” an anonymous member of an online child pornography forum whose profile claimed he lived in Brockton, Mass. Detective Lt. Denise Doherty from the Massachusetts State Police took charge of the investigation and, with the help of an undercover agent monitoring the site, made contact with xBostonDad. The agent identified xBostonDad’s Yahoo email and forwarded it along to Doherty, who discovered it was associated with a Verizon-issued IP address tied to four separate networks. Verizon informed police that each network was affiliated with Richard Comenzo, a criminal defense and immigration attorney in Stoughton; one with his apartment complex, two with his law office and one with his company. ... “There’s been some questions about combining pole cameras with things like facial recognition technology … then it would allow you to index [recorded footage] not only by time but by person…,” said Mason Kortz, a clinical instructor at the Harvard Law School Cyberlaw Clinic in Cambridge. “One place the federal courts might draw the line is if there are multiple cameras in an area and you are able to identify a person … across space, across time.”

From systemic racism and inequity to Boston electing its first woman and person of color as mayor, 2021 brought us several stories that will continue to have an impact on our local communities in the coming year. Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School, and Michael Curry, president and CEO of the Massachusetts League of Community Health Centers, joined Jim Braude on Greater Boston to discuss the biggest local and national stories of the past year. ... "I don't think we can underestimate the impact of the change at the top," Gertner said, referring to the Supreme Court. Since Justice Amy Coney Barrett joined the bench, Gertner said, the court has taken on cases and positions based on personal interests, not precedent. "They have enabled gerrymandering. They have decimated the Voting Rights Act," she continued. "And they show every indication of being like that going forward."

Governor Charlie Baker is putting new pressure on the Massachusetts Legislature to finally pass his proposed crackdown on drugged driving, instead of letting the measure — initially filed in 2019 — again die in committee. ... “It’s junk science to the nth degree,” Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School, said in an interview. “The Legislature has no business mandating who or what can be admitted into court — especially testimony that doesn’t meet evidentiary standards. It’s preposterous, and challengeable on any number of grounds.”

After a year of high-profile energy project cancellations, federal courts in 2022 are expected to speak on the role of climate in oil, gas and power rules. In February, the nation’s highest bench will consider the scope of EPA’s authority to regulate carbon emissions from power plants. In the lower courts, judges will consider whether the Interior Department can suspend new oil and gas leasing on federal lands and how the federal government can incorporate emissions cost estimates into regulatory decisionmaking. ... "The Biden administration is trying to take a very measured, legally sound and thoughtful approach for all regulations," said Carrie Jenks, executive director of Harvard Law School’s Environmental & Energy Law Program. "The goal is to enable industry to make the long-term investments that are needed to address climate change and ensure these regulations stick."

For generations of parents, Heidi Murkoff’s 1984 pregnancy guide “What to Expect When You’re Expecting” has been a trusty companion, offering calm, scientifically informed advice for a nerve-wracking nine months. These days, of course, there’s an app for that: What to Expect’s “Pregnancy & Baby Tracker,” which offers personalized articles, videos, graphics of your baby’s development, and other features based on your due date. ... Any platform that allows users to interact or create content eventually will face questions about how to deal with offensive speech, said evelyn douek, a lecturer at Harvard Law School who researches online content moderation. Smaller sites tend to lack the resources to moderate users’ discussions as effectively as the large platforms, she added, and can become hubs of misinformation.

When Rosario went to the police station in southern Mexico to file a report about a criminal gang continuing to threaten her family, she says an officer advised: “Your best bet is to leave.” And that’s what her family did, in late August. The twenty-four-year old Rosario, her husband, two children, two brothers, and her parents fled their hometown. They have joined thousands of others waiting in the Mexican town of Nogales, bordering Arizona, for a chance to seek refuge in the United States. ... Biden’s border plan, drafted by the Department of Homeland Security and the Justice Department, would bring on 800 new asylum officers and new staff for hearings. But it’s a fix to a broken immigration system that advocates such as the Harvard Immigration and Refugee Clinical Program say would deny many asylum seekers “their day in court.”

An op-ed by Stephen Sachs: Our Constitution was meant to be amended, but our process for fixing it is broken. Americans haven’t proposed and ratified a new amendment for half a century — the longest gap since the Civil War. And with so few amendments, the pressure for change falls on judges, encouraging courts to get creative (and political). New amendments need a two-thirds vote in both the House and the Senate, a high bar in a polarized Congress. If a proposal fails that test, we never find out if three-fourths of the states would have ratified it. Lowering these thresholds might produce more amendments. But it would also produce more controversial ones, because a lower threshold lets narrower majorities rewrite our fundamental laws. Instead, we could keep the thresholds but flip their order, letting the states go first. With this alternative, a new amendment proposal could advance one state legislature at a time. Once three-fourths of states had endorsed it, working out disagreements along the way, the proposal would go to Congress for ratification. The approval of two-thirds of each chamber might then be easier to come by, with both blue and red states already having signed on.

As Republican state officials insist that Canadian oil pipelines are necessary to lower energy costs for American consumers, the fossil fuel giant operating those pipelines is suddenly citing the climate crisis its products are creating as a rationale for raising those prices higher, according to new documents reviewed by The Daily Poster. Last month, Ohio Republican Gov. Mike DeWine—who has raked in nearly $400,000 from fossil fuel industry donors—demanded the Biden administration keep open Enbridge's controversial Line 5 pipeline, which runs under the Great Lakes, as a way to reduce energy prices. But Enbridge just dropped a bombshell undercutting that argument: The firm told government regulators that climate change means its tar sands pipeline network only has 19 years left of economic life. That assertion could allow the company to jack up the tolls that its customers pay to transport oil through its pipelines, because pipeline operators are authorized to recoup their operational costs through rate increases—and a shorter timetable means higher levies. "There is something ironic about pipeline companies like Enbridge conceding that they can see the writing on the wall, they're not going to be competitive or needed less than 20 years from today, and as a result they have to raise prices today to account for that," said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School. "There's something incongruous about that."