Media Mentions

Kyle Rittenhouse took the stand in his own murder trial on Thursday, forced to answer why he shot and killed two people during a Black Lives Matter protest last year in Wisconsin. His trial coincides with that of the three men charged with the 2020 murder of Ahmaud Arbery. Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law, and Dean Strang, a Loyola University-Chicago law professor and the attorney known from the "Making A Murderer" series, joined Jim Braude on Greater Boston to discuss these cases of white vigilantism. ... The guests argued that defense in the Rittenhouse trial benefited from a pre-trial ruling that barred prosecutors from referring to any of the people shot as victims, while allowing for the defense to refer to them as looters or arsonists. Gertner said those decisions gave more power to the Rittenhouse defense's argument that he acted because he believed there was a crime being committed. "What that does is to imply it's OK to shoot people who are committing crimes when you're a civilian," she said.

On Jan. 28, 2019, Nikole Hannah-Jones, who has been a staff writer at The New York Times Magazine since 2015, came to one of our weekly ideas meetings with a very big idea. ... This book, which is called “The 1619 Project: A New Origin Story,” arrives amid a prolonged debate over the version of the project we published two years ago. That project made a bold claim, which remains the central idea of the book: that the moment in August 1619 when the first enslaved Africans arrived in the English colonies that would become the United States could, in a sense, be considered the country’s origin. ... Much has changed in the past 25 years, as new research has transformed and expanded the field of American history yet again. ... Since then, a huge amount of scholarship has been published about the experience of enslaved women, including pathbreaking research like Annette Gordon-Reed’s work on the relationship between Thomas Jefferson and Sally Hemings, a woman who was one of the hundreds of people the third president enslaved. For many generations, some historians denied that Jefferson had a sexual relationship with Hemings or that she bore some of his children. Gordon-Reed’s work, along with DNA testing published in 1998 that confirmed Jefferson’s paternity, established the relationship beyond a doubt.

WHAT CAN BE DONE ABOUT FOOD WASTE? Emily Broad Leib, founder and director of Harvard’s Food Law and Policy Clinic, discusses how to reduce food waste in the United States and abroad. Topics include the confusion caused by misleading date labels, the impact of COVID-19 on food waste, and the FLPC’s collaborations with governments and non-profit organizations to enact better food laws.  Read more about Emily Broad Leib in the pages of Harvard Magazine in “The Food Waste Problem.”

Steve Bannon, former President Donald Trump’s political strategist, was indicted by a grand jury Friday on two charges of criminal contempt for defying a House subpoena. ...Biden told reporters Oct. 15 he hoped the committee “goes after” people who defy subpoenas “and holds them accountable criminally.” Asked whether they should be prosecuted, Biden replied: “I do, yes.” Biden told a CNN town hall Oct. 21 that what he said wasn’t appropriate. He said the department would make its own decision about whether to prosecute. “I did not, have not, and will not pick up the phone and call the attorney general and tell him what he should or should not do in terms of who he should prosecute,” Biden said. Jack Goldsmith, a Harvard law professor, tweeted that any prosecution of Bannon, which he considered legally justified, “will be tainted by Biden’s remark.”

Kyle Rittenhouse took the stand in his own murder trial on Thursday, forced to answer why he shot and killed two people during a Black Lives Matter protest last year in Wisconsin. His trial coincides with that of the three men charged with the 2020 murder of Ahmaud Arbery. Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law, and Dean Strang, a Loyola University-Chicago law professor and the attorney known from the "Making A Murderer" series, joined Jim Braude on Greater Boston to discuss these cases of white vigilantism. The guests argued that defense in the Rittenhouse trial benefited from a pre-trial ruling that barred prosecutors from referring to any of the people shot as victims, while allowing for the defense to refer to them as looters or arsonists. Gertner said those decisions gave more power to the Rittenhouse defense's argument that he acted because he believed there was a crime being committed.

... In the last year or so, people have been doing just that—more or less. According to the U.S. Labor Department, a staggering 4.4 million quit their jobs in September. And Harvard Business Review reports that employees between the ages of 30 and 45 saw the largest jump in resignation rates, with an average increase of more than 20% between 2020 and 2021. ... Given all that they’ve been through in the last 18 months or so, are they finally fed up enough with Big Law to jump ship? Yes, says Mark Weber, Harvard Law School’s assistant dean for career services. “We know it’s happening because we’re getting calls from alumni who are saying, ‘everyone around me has left and I’m drowning.’ Firms are paying enormous bonuses to retain associates because that’s still cheaper than leaving business on the table.” Despite all the monetary goodies, Weber says the workload is “not sustainable.” The big question, he adds, is whether lawyers will drop out permanently.

Growing up in Providence, Rhode Island, Ahmed Sesay never had a class in civics. When he graduated from high school in 2019, he had to teach himself how to vote and pay his taxes. Now 20 years old, Mr. Sesay is part of a lawsuit being decided by a Boston-based court of appeals this month that argues that students have a constitutional right to an adequate civics education. ... “The insurrection was part of a larger pattern of people showing a lack of understanding of how our system works,” says Martha Minow, a legal scholar at Harvard Law School who filed an amicus brief in the case. She pointed to surveys showing that close to half of Americans can’t name the three branches of government and nearly a third could imagine supporting a military coup.

Two days after he issued the Emancipation Proclamation, in September 1862, Abraham Lincoln suspended the writ of habeas corpus throughout the United States, subjecting all Americans to the threat of military arrest and indefinite imprisonment without trial. These steps—one toward a “new birth of freedom,” the other toward a military dictatorship—are at the heart of Noah Feldman’s “The Broken Constitution: Lincoln, Slavery and the Refounding of America.” The Constitution itself became a casualty in the war Lincoln waged to defend it, Mr. Feldman argues. “Civil war is the very definition of a failed constitution,” he writes. As Lincoln came to terms with this fact, he transformed the war into a struggle to establish an entirely new constitution on the moral principle of liberty for all.

Victims from Friday’s deadly disaster at Astroworld are now headed to court in droves, but what exactly will their attorneys need to prove in order to win their claims against Travis Scott, Live Nation and others? We asked top legal experts. ... That punk-rock persona was a big part of Scott's personal brand, but according to John Goldberg, a deputy dean at Harvard Law School who has written treatises on tort law, well-documented troubles with crowd control will help victims show that Live Nation and other organizers should have seen Friday coming. "If Astroworld was on notice that Scott's concerts tend to be more chaotic than other performers’ concerts," says Goldberg, "it would be required by negligence law to take the extra degree of danger or risk into account in deciding what sort of security measures to put into place."

Kyle Rittenhouse breaking down on the stand Wednesday is so far the most gripping part of his trial for killing two people and wounding a third during the violent protests last year in Kenosha. ... "It's usually enormously risky to put a defendant on the stand," said Judge Nancy Gertner of Harvard Law School. Now a retired federal judge Gertner at Harvard Law School told WISN 12 News the testimony was effective. "We're talking about visceral responses here, and since the legal standard is did he believe his life was in danger, in imminent danger of bodily harm and was it reasonable? His affect is important to that inquiry," Gertner said.

For anyone hoping that voting and elections post-2020 would become less polarized, the recent Take Back Virginia rally outside Richmond was not a good sign. ... But he also waited until after he had secured the Republican nomination for governor this year before he acknowledged that Biden was the legitimate winner of the 2020 election. "There's a reckoning that the Republican Party is going to have to come to terms with," said Guy-Uriel Charles, an election law expert at Harvard University. "It's going to have to figure out to what extent is it going to play with these types of insurrectionist, unserious, democracy-harming set of narratives."

Medical schools should beef up curriculums to include robust nutrition education to give physicians the tools to combat diet-related conditions that cost the federal government billions of dollars each year to treat, according to House Rules Chairman Jim McGovern. ... At the news briefing, several members of the Nutrition Education Working Group that includes experts in nutrition science, education and food policy said the limited focus on nutrition often leaves medical students and physicians feeling inadequately prepared. “So to my mind, it doesn’t make sense to invest federal money and training of physicians who are then not able to prevent or address the most costly illnesses we face,” said Emily M. Broad Leib, faculty director of the Food Law and Policy Clinic at Harvard Law School. Leib said the resolution is a prod that “does not mandate any changes to health care training. It really raises awareness and makes the statement that the lack of food and nutrition knowledge among health professionals is a matter of national concern.”

Navy veteran Rhett Chalk was rendered quadriplegic on Thanksgiving Day in 2003 after his knee — which he severely impaired while serving in Vietnam — gave out, causing him to suffer a life-changing spinal injury. ..."Our argument though is that the mechanical application of that requirement does injustices in cases such as Mr. Vilord's where he could not possibly have met the requirement," said Tyler Patrick, one of the student members of the Veterans Legal Clinic at Harvard Law School, which is representing him. "It's unconstitutional, not to mention nearly unjust, to deny him these benefits, these benefits that he is deserved after serving as his partner's caretaker for 18 years, on the basis that Florida prevented him from marrying until 2015." "We argue that because the VA in making this determination looks to Florida state law, a state law which was unconstitutional and unconstitutionally as ruled in Obergefell prevented Mr. Vilord and Mr. Chalk from marrying, VA can't then use that unconstitutional state law as the basis for its denial of his enhanced DIC benefits," Patrick continued. The VA did not immediately respond to a request for comment.

Harvard Law School has received a $10 million donation from the Brooks Institute for Animal Rights Law and Policy to endow its animal law program. The program, established in 2014, is being renamed the Brooks McCormick Jr. Animal Law & Policy Program in honor of the gift, Harvard said Wednesday. It offers courses, fellowships and a clinic where students work on animal law cases and policy.

Defense attorneys for Kyle Rittenhouse are planning to call several more witnesses on Thursday. Rittenhouse testified on Wednesday that he acted in self-defense when he killed two people and wounded another last year in Kenosha, Wisconsin. Here & Now's Jane Clayson talks with Harvard Law School professor and retired judge Nancy Gertner about the case.

Norm Eisen, former ethics czar and lawyer who helped Democrats during the first impeachment of Donald Trump, reassured those demanding accountability for corruption under former President Donald Trump in a new interview with Business Insider. ... Trump is facing tax charges from the Manhattan District Attorney's Office as well as possible voter fraud charges by Fulton County DA Fani Willis. After a 8 months in office, Garland hasn't made any public moves on anything involving the former president, his staff or corrupt cabinet officials who were never charged after investigations by the Office of Special Counsel. "Atlanta is moving faster than DC. Where oh where is Merrick Garland? The DOJ seems strangely AWOL," Harvard law professor Laurence Tribe asked in a tweet.

Constitutional Law Professor Laurence Tribe joins Lawrence O’Donnell to discuss the new ruling that Donald Trump must turn over records to the Jan. 6 committee and why he believes Merrick Garland “should have acted already” in the criminal contempt referral of Steve Bannon. ...Tribe: ...I was finishing reading the remarkably powerful opinion by Judge Chutkan. It`s a 39-page opinion dissecting closely all of the arguments that have made by Donald Trump`s lawyers claiming that even though he`s no longer the president, he has executive privilege to prevent the turning over of hundreds of government documents, presidential documents, presidential logs, information about what he knew and when he knew it from the concept that somehow he could prevent turning that over. She rejected that argument. We only have one president at a time and that president is not Donald Trump.

Christopher Rufo, a Manhattan Institute senior fellow and a self-identified brawler, takes full credit for turning critical race theory into a political wedge issue. ... Randall Kennedy, a law professor at Harvard, had a harder edge in his emailed reply to my inquiry: “Democratic candidates should deal seriously and forthrightly with the cultural issues that clearly concern many voters.” Learning, he continued, entails dialogue and pluralism and self-disciplined willingness to listen even to those with whom one may disagree strongly, which is why the far-flung efforts to erase or muzzle the 1619 Project, or critical race theory or other manifestations of anti-racist pedagogy must be rejected. Democrats should put themselves firmly on the side of open discussion, not compelled silence. Ultimately, Kennedy argued, Democrats need to articulate a complex set of principles: They should vocally eschew bad ideas such as the notion that there has been no substantial betterment in race relations over the past fifty years, or that George Washington, Thomas Jefferson, and Abraham Lincoln are unworthy of commemoration, or that Black people are incapable of being racist, or that speech that is allegedly racist ought to be banned. At the same time, they should vocally embrace what is difficult for any sensible person to deny: that racial injustice has been and remains a destructive force that must be overcome if we are to enjoy more fully the promising potential of our multiracial democracy.

Even the staunchest conservative on the Supreme Court was taken aback when the Texas solicitor general said outraged feelings would be suitable grounds to sue doctors and others who violate the state’s ban on abortion after six weeks of pregnancy. ... Lawsuits brought under Texas’s abortion law, really have nothing to do with tort law, said John Goldberg, a Harvard law professor and expert in tort law and theory. “Getting an abortion that’s legal under Roe v. Wade is not, in the eyes of the law, mistreating a third person who is upset by the fact that you’re getting an abortion,” he said. So why did the Texas solicitor general make the comparison? Goldberg said Stone was trying to use tort of outrage as an analogy to convince the Supreme Court that it can’t block these lawsuits because they are being brought by private individuals, who are suing on their own behalf, not by people who are acting in concert with the state. Stone didn’t respond to requests for comment.

A book review by Noah Feldman: Linda Greenhouse’s new book on the Supreme Court opens in October 2020, with the drama of Justice Amy Coney Barrett’s appointment by Donald Trump. By rights it should have started in 2009, when Barack Obama was president, Democrats controlled the Senate and Justice Ruth Bader Ginsburg was diagnosed with pancreatic cancer — her second cancer diagnosis in a decade. Ginsburg lived another 11 years, spectacularly beating the odds even after a third diagnosis in 2018. But in retrospect, nothing is clearer than that she should have resigned expeditiously after learning she had a cancer that has an average five-year survival rate of 10 percent.

Power producers challenging a PJM Interconnection regional market rule are setting up a legal fight that could affect the electricity mix across chunks of the Midwest and eastern U.S. ... But there are questions in energy circles about whether Phillips might have to recuse himself because his position as chairman of the Public Service Commission in Washington, D.C., meant he considered the sticky PJM capacity market issue. Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, said he doesn’t expect that to be an issue. “I say it’s low risk, because he didn’t work for the entity filing the proposal,” Peskoe said of the possibility of Phillips recusing himself.