Media Mentions

An op-ed by Amy B. Frieder '22, who was a candidate for the Maryland House of Delegates during the 2018 election cycle and during a vacancy-filling appointment process in 2021: Maryland is one of several states without special elections for filling state legislative vacancies. It instead relies on political party insiders to nominate a candidate for the governor to appoint (i.e., rubber-stamp). In fact, Maryland is the only state with four-year State House terms other than North Dakota that relies on this political party insider appointment process. These political party insiders are organized in “central committees.” Over the past several years, they have quietly wielded so much power that more than 20 percent of Maryland state legislators were initially appointed rather than elected by the voters and have benefited from incumbency advantage ever since. Can you imagine the public pushback if 20 percent of our U.S. House of Representatives were appointed rather than elected?

Jerome “Jerry” Rappaport ’49 M.P.A. ’63, who as a 19-year-old Harvard Law student helped to launch the Harvard Law School Forum, a storied speaker series, and who more than seven decades later was the impetus behind the creation of another Harvard Law School initiative to promote rigorous discussion of government and social issues on campus, died on December 6. He was 94. “As a law student in 1946, Jerry Rappaport founded the Harvard Law School Forum, which has added energy and excitement to our community by inviting to our campus prominent people with big ideas and many perspectives from which to learn,” said John F. Manning ’85, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School.  “More recently, he and Phyllis Rappaport supported the establishment of the Rappaport Forum, which promotes and models vigorous and respectful discourse on the hardest questions facing this nation and our world. Jerry personified and supported the values that are necessary for great academic institutions to be places of learning and growth. A wise adviser to multiple deans, he will be sorely missed. Our thoughts are with Phyllis and the entire Rappaport family.”

An op-ed by Peter Keisler, Stuart Gerson, and Alan Raul, HLS lecturer on law: After the country voted in 2020 to elect his opponent, President Donald Trump attempted to overturn America’s centuries-long commitment to the constitutional transfer of power. Assisting him was White House chief of staff Mark Meadows, who was acting not in service of the duties of the president, but merely as a political operative for a defeated candidate unlawfully grasping for power. Now the House Jan. 6 committee is charged with investigating the ensuing attack that imperiled both our constitutional government and the lives of our legislators and others who served at the Capitol. It is no wonder that the committee has ordered Meadows to testify and supply documents — or that President Biden has declined to block Congress’s access by asserting executive privilege, the doctrine that allows a president to protect the confidentiality of certain official deliberations. ather than comply, Meadows and his lawyer have launched a public campaign arguing that Biden abandoned a long-held principle of executive privilege by declining to accede to Trump’s attempt to assert it. Meadows, they say, is stuck in the middle of a “separation of powers” dispute, unsure whether to obey Trump or a congressional subpoena with which the sitting president has agreed to comply. But Meadows and his counsel get just about everything wrong regarding the law and history they invoke.

When Los Angeles District Attorney George Gascón took office a year ago, he directed the county’s nearly 1,000 prosecutors to decline charges involving 13 categories of low-level misdemeanors, including driving on a suspended license, drug and paraphernalia possession, and public intoxication. The sweeping new policy called for misdemeanor charges only when there are extenuating circumstances, like repeat offenses. An LAist review of millions of criminal cases found that the reform, dubbed Special Directive 20-07, has led to a dramatic decline in the rate at which the DA charges misdemeanors. ... Progressive academics and community groups say the changes are necessary to address a bloated and unequal criminal justice system, and that low-level criminal charges affect thousands of Angelenos as well as their families and communities. "The record of the misdemeanor arrest can haunt a person for life,” said Harvard law professor Alexandra Natapoff, the author of the book "Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal." People accused of misdemeanors in California are typically arrested or given a citation. If found guilty, a defendant can face a sentence of up to one year in jail and a fine of $1,000. “It can ruin their credit, it can disable their ability to get a job, or a loan, or housing,” Natapoff said. “There’s a whole world of consequences that far outstrip the seriousness of the underlying offense.”

An article by Jeannie Suk Gersen: The legal landscape of the past weeks and months has prompted questions of which people and entities are legitimate interpreters and enforcers of the law and what happens when you take the law into your own hands. Mississippi and other states took the recent changes in personnel on the Supreme Court as an invitation to defy the Court’s constitutional rulings on abortion, and those states now seem likely to prevail. During oral arguments in Dobbs v. Jackson Women’s Health Organization, last Wednesday, the three liberal Justices often seemed to be delivering dirges, as though they had accepted a loss and were speaking for posterity. Mississippi’s ban on abortions after fifteen weeks of pregnancy, which boldly flouts the Court’s precedents setting the line at around twenty-four weeks, is likely to be upheld by the conservative Justices. The arguments offered scant reason for hope that Roe v. Wade will be reaffirmed; the newest conservative Justices, Brett Kavanaugh and Amy Coney Barrett, signalled no qualms about overruling Roe as wrongly decided, which would make a majority of at least five. At a time when the Court’s legitimacy appears extremely fragile, it is telling that the majority’s response to having the supremacy of the Court’s decisions defied seems to be acquiescence and approval.

An op-ed by Eli Nachmany '22: Republican Gov.-elect Glenn Youngkin’s resounding victory in deep-blue Virginia sent shockwaves through the national Democratic Party apparatus. Youngkin took down former Virginia Gov. Terry McAuliffe, a Democrat, in an election that pitted two fundamentally different views of education against one another. Given the obvious popularity of the Youngkin position on education – one that puts power back into the hands of parents – lawmakers at the federal level should reconsider a Trump-era education bill that did not make it through Congress during President Trump’s time in the White House: the Education Freedom Scholarships and Opportunity Act, or "EFS."

An op-ed by Ashley Nunes: A bumpy ride awaits Canadian travellers. On Tuesday, Ottawa unveiled new pandemic travel measures that are creating confusion for flyers. The move – spurred by the rise of the highly infectious Omicron variant – will require all incoming passengers from non-U.S. foreign destinations get another COVID-19 test when they land in Canada. The new testing requirement is in addition to the pre-departure test travellers must undergo before leaving for Canada. The move is being touted as necessary to keep Canadians safe. ... Look, I’m all for a science-based approach. Science should inform public policy and we need more scientists working in public policy. I’m also for packing an extra dose of patience. Enduring hardship well is a trait in short supply in public (and political) discourse, and society is poorer because of it. Unfortunately, Ottawa’s new pandemic travel measures aren’t particularly scientific, which has a knock-on effect on my patience. As I write this, I’m in Europe, and heading on a plane back to Canada tomorrow. Despite my best efforts to educate myself, I’m still confused about what to expect when I land.

China ride-hailing giant Didi Global’s shares plunged more than 22% in the US on Friday, losing about $8.4 billion in market value, to end a week in which the decoupling of the equity markets of the world’s two biggest economies gathered pace. The plunge followed Didi’s announcement that it planned to delist from the New York Stock Exchange less than six months after its bumper $4.4 billion IPO there.  Didi’s decision followed China’s swinging crackdown on tech companies amid its concerns that reams of customer data risked falling into foreign hands, and a US decision to boot 248 Chinese companies off its exchanges for failing to comply with auditing requirements. ... Previous delistings provide the best window on what the future may hold for investors – and it doesn’t look good. In late 2017, China-based and US-listed Qihoo 360 announced a deal to be taken private by a group of investors led by its CEO, Zhou Hongyi, who held a 61% majority stake in the company. The deal valued Qihoo at about $9.3 billion. It was then relisted on the Shanghai stock exchange, where its market cap soared to $56 billion. In a 2019 article published in the Harvard Law School Forum on Corporate Governance, Harvard Law School professor Jesse Fried and Burford Capital’s Matthew Schoenfeld assert that Qihoo’s CEO alone made $12 billion in the relisting exercise. ”Beijing may be deliberately tanking these companies’ shares to pave the way for Chinese investors to acquire interests at lower prices,” they said.

WASHINGTON — Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded. ... As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions. One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.

A column by Noah Feldman: As Republicans develop a strategy for the 2022 and 2024 elections, expect them to borrow at least one trick from the playbook that Glenn Youngkin used to win the 2021 Virginia governor’s race: tar Democrats with the brush of “critical race theory.” Almost no one can say exactly what CRT is, but that doesn’t seem to have mattered last month in the northern Virginia suburbs, where the Republican made inroads among Democrat-leaning voters. The attack on CRT is a proxy for a vulnerability that Republicans correctly see Democrats as having. The consciousness-raising of Black Lives Matter and a new focus on the legacy of slavery has left the party flailing. Democrats — and progressives and liberals more generally — find themselves without a coherent narrative about race in American history, or one that Americans of all races can embrace.

An op-ed by Nancy Gertner: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” That was the question Justice Sonia Sotomayor asked Wednesday as the US Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, after quoting the sponsors of the law, who said, “We’re doing it [passing this law] because we have new justices.” Dobbs challenges a Mississippi law that bans abortions after 15 weeks of pregnancy. Dobbs is not just about Mississippi; it has become synonymous with the question of whether Roe v. Wade, the watershed 1973 case that legalized abortion, will be overturned by the court. Fifteen justices since Roe v. Wade in 1972, 13 since the 1992 Planned Parenthood v. Casey case that reaffirmed Roe, have held that abortion may not be banned before fetal viability at 23 to 24 weeks. Justice Sandra Day O’Connor wrote in Casey: “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” Indeed, she added, since Roe an entire generation of American women had formed relationships and started — or decided not to start — families under the assumption they had this right. And, presaging Sotomayor, she added, “to overturn something so momentous would call into question the court’s own legitimacy.”

A high-stakes game of chicken between former Trump advisers and the House committee investigating the Jan. 6 insurrection could enter a new phase Saturday, when former Justice Department official Jeffrey Clark is expected to appear as ordered, but may invoke his Fifth Amendment right not to answer a broad swath of questions. ...Garland “clearly knew that many people he respects, including me, were growing impatient with what we saw as the glacial pace of the process leading to this indictment,” longtime Harvard law professor Lawrence Tribe, who taught the future judge and attorney general, wrote in an email. “But he no doubt also knew that a number of experienced former federal prosecutors kept insisting publicly that several weeks was to be expected in a case of this magnitude and sensitivity.”

The Biden administration on Thursday rejected demands for a binding international agreement banning or tightly regulating the use of so-called killer robots, autonomous weapons that campaigners fear will make war more deadly and entrench a global norm of “digital dehumanization.” ... Bonnie Docherty, senior arms researcher at Human Rights Watch, said Wednesday that “much opposition to killer robots reflects moral repulsion to the idea of machines making life-and-death decisions. “A new treaty would fill the gap in international treaty law and protect the principles of humanity and dictates of public conscience in the face of emerging weapons technology,” Docherty argued.

Few blockbuster public share sales have been as tortured as Didi Global’s. Within four days of raising $4.4bn in New York in June the Chinese ride-hailing group was hit with an investigation by the authorities in its home market and its mobile application was dropped from app stores in China, preventing new customers from using it. The firm’s share price remained above its initial public offering (ipo) price for just three trading days and has since fallen by more than 40%. Now the company, which was once valued at $70bn and backed by Japanese investment firm SoftBank, says it will delist from American exchanges altogether and relist in Hong Kong. ... Such action—an unprecedented intervention by a foreign government in the American market—would make an agreement between America and China far more difficult to strike, says Jesse Fried of Harvard Law School. “Didi’s exit will thus be a preview of what is to come,” he says.

Two women who were Georgia election workers in 2020 are suing the far-right conspiracy website Gateway Pundit for defamation, alleging that the site and its owners knowingly published false stories about them that instigated a relentless campaign of harassment and threats. ... During the 2016 campaign, Gateway Pundit was among the most frequently shared media sources on Twitter and Facebook among followers of Trump, far more than mainstream news outlets, according to a study led by Harvard law professor and internet scholar Yochai Benkler.

The immediate future of abortion rights in the United States might depend on whether Chief Justice John G. Roberts Jr.’s attempt at compromise Wednesday was dead on arrival or just an opening bid. ... Wednesday’s argument “created the remarkable impression of a court at risk of disintegration,” said Richard Lazarus, a Harvard Law School professor who studies the court. “The now outsize conservative majority knew they could safely cast a deaf ear to the concerns of other justices, including even the chief justice. And the resulting frustration of the three more liberal justices was palpable.”

Food businesses and nonprofit organizations recently released an open letter urging Congress to pass a bill intended to fight hunger by removing barriers to food donation. ... The open letter, which is signed by more than 25 groups including WW International, City Harvest, and the Harvard Law School Food Law and Policy Clinic, advocates for these protections to include businesses that are donating directly to recipients in need. Current protections only cover companies that donate to nonprofit organizations. “Promoting and enabling the donation of safe, surplus food is a highly effective and simple tool to curb food waste, reduce greenhouse gas emissions, and address food insecurity,” Emily Broad Leib, Director for the Harvard Law School Food Law and Policy Clinic tells Food Tank. “Yet, our current laws fall short of really encouraging businesses to donate food instead of tossing it into landfill.”

The Supreme Court heard arguments Wednesday in a challenge to Mississippi’s law that bans abortion after the 15th week of pregnancy. It’s the most significant abortion case in years and a direct challenge to Roe v. Wade. Plus, Stacey Abrams announces a run for Georgia governor in 2022. And, putting high gas prices in perspective. Guests: Harvard University constitutional law professor Noah Feldman and Axios' Emma Hurt and Ben Geman.

When the U.S. Supreme Court decided an important voting rights case earlier this year, its ruling made it more difficult for voters to challenge restrictive state voting laws.  Now, the state of Texas is making an argument that, if adopted, would further hobble use of what remains of the Voting Rights Act. ...In a one-paragraph concurring opinion in Brnovich v. Democratic National Committee, the voting rights case decided last summer, Supreme Court Justice Neil Gorsuch said the court’s previous cases assumed that private parties had the right to bring lawsuits challenging state election laws under Section 2 of the VRA, but it was an “open question” the Supreme Court had not yet decided. Justice Clarence Thomas was the only other member to sign on to Gorsuch’s concurrence.  “If it hadn’t been for the Gorsuch line in Brnovich, I would have thought it was kind of a crazy argument,” said Ruth Greenwood, director of the Election Law Clinic at Harvard Law School, of the Texas brief.

By now, it’s clear that Beijing is greatly discouraging, if not completely forbidding, listings of Chinese tech companies in the U.S. What’s unclear is what Beijing will do with existing Chinese ADRs, an overwhelming majority of which used variable-interest entities to circumvent Chinese laws to get listed. ...The fate of VIEs isn’t the only concern for Chinese ADRs. Under a law (HFCA) passed under the Trump administration in December, Chinese companies may face delisting if they refuse to hand over financial information to American regulators, a demand that Beijing has refused so far. “Unless something unexpected happens, the Chinese ADR market should be eliminated within three years because of HFCA,” said Jesse Fried, professor at Harvard Law School. “Even absent the HFCA, China might have prevented companies from listing in the U.S. to build up its own markets and have greater control over the companies. But the U.S. government seems to be doing China’s work for it.”

Laurence Tribe tells Lawrence O’Donnell that he anticipates the Supreme Court will gut the fundamental right to abortion established in Roe v. Wade after hearing arguments on Mississippi’s abortion ban and warns the legitimacy of the court and the rule of law are at risk given the conservative justices’ willingness to “reverse the trend of expanding rights” for the first time in our nation’s history.