Media Mentions

An op-ed by Nancy Gertner and Dean Strang: A young man in Wisconsin, Kyle Rittenhouse, is on trial for shooting three men, killing two and injuring one, during protests in Kenosha following the police shooting of a Black man, Jacob Blake. Shortly before the trial began, the trial judge entered a conditional ruling that should concern everyone. It flouts common sense, is legally tenuous, and worse, conveys a troubling message: the defense may be allowed to refer to the three men who were shot as “rioters,” “arsonists” or “looters,” but the prosecution may not refer to the men as “victims” because that is a “loaded word.” True, juries decide who is, or is not, a victim in a legal sense. But American judges routinely allow prosecutors to describe people injured or killed as “victims” in jury arguments. Imagine a domestic violence trial in which the judge would allow the husband’s defense to refer to the wife as a “brawler” but not allow the prosecutor to describe her as a “victim.” We can’t.

An op-ed by Ashley Nunes: Quebec’s language quagmire has long been a sore spot for politicians. Last week, Air Canada chief executive officer Michael Rousseau got in on the action. He delivered a near 30-minute speech at the Chamber of Commerce of Metropolitan Montreal, during which he spoke in French for some 20 seconds. When later questioned about why – after 14 years in the province – his French language skills weren’t up to par, Mr. Rousseau responded, “I’ve been able to live in Montreal without speaking French, and I think that’s a testament to the city.” The outrage has been swift. Quebec Premier François Legault denounced Mr. Rousseau’s attitude as “insulting.” The province’s Minister Responsible for the French Language, Simon Jolin-Barrette, said that Mr. Rousseau showed “contempt for our language and our culture in Quebec” and subsequently opined that the CEO was “not worthy of his duties.” And then there’s Justin Trudeau. The Prime Minister called Mr. Rousseau’s position “an unacceptable situation,” adding that the Minister of Official Languages is “following up.”

On this Intersex Remembrance Day, it is time for the LGBTQ+ movement to finally join the fight for intersex rights. If you were to estimate the size of the intersex community based solely on the attention they receive, you may never guess that they make up nearly 2 percent of the population. ...Despite a long history of activism by intersex people and allies, and decades of controversy, these risky and nonconsensual procedures are still happening every day. This is why Harvard Law School’s LGBTQ+ Advocacy Clinic and interACT: Advocates for Intersex Youth, the nation’s largest intersex rights organization, have partnered to create an online toolkit to empower advocates by providing additional tools for effective legislative strategy in their states.

... Over three hours, lawyers representing abortion providers, the state of Texas, and the federal government volleyed with the nine justices over Texas’ Senate Bill 8, a law that effectively bans abortion after six weeks, before many people even know they are pregnant, with no exception for rape or incest. ...The “tort of outrage” is a real legal concept. In most states it’s known as “the intentional infliction of extreme emotional distress.” But legal experts familiar with the statute are skeptical of Stone’s argument. To satisfy the law, John Goldberg, a Harvard Law School professor and expert in tort law and theory, says that the behavior in question has to be not only both “extreme and outrageous,” but specifically “intended to cause severe emotional distress.” And, Goldberg adds, ”the intended victim” — the person suing under Texas’ law, in this scenario — “actually has to experience the severe distress.” There are two big problems with Stone’s logic, Goldberg explains. First, the Texas law is very clear that it doesn’t require an injury — anyone can sue under S.B. 8. But, he adds, if someone did sue for “outrage,” they would still have to prove that the person seeking the abortion caused them emotional distress “intentionally and through extreme and outrageous conduct.”

The clock is ticking on a three-year timeline for the forced delisting from US exchanges of 248 Chinese stocks that are defying auditing requirements. ... 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.

Just as it became clear that President Joe Biden could not get Congress to agree to a Clean Electricity Payment Program, the Supreme Court announced it would hear a case that could prove just as big a setback in his plans for climate action. The case brought by the coal industry and a coalition of red states resurrects an argument they have been making for years: that the U.S. Environmental Protection Agency can’t impose major changes on the nation’s energy system without explicit authority from Congress. ...“This is a one-two punch,” said Richard Lazarus, a professor at Harvard University who has argued numerous environmental law cases before the Supreme Court. “The timing was not good—to have the budgetary stuff not happen in Congress, and then for the court to basically say, ‘By the way, we may be willing now to slam the door on anything else you’re thinking about doing.'”

... In 2018, Mayor Martin J. Walsh — now President Biden's labor secretary — appointed Mr. Watson to lead the Boston Employment Commission, the body created to monitor compliance with the Boston Residents Jobs Policy. The policy mandates giving a minimum share of work to city residents, women and people of color on large private construction projects and those that are publicly funded. ... Mark Erlich, who retired in 2017 as executive secretary-treasurer of the New England Regional Council of Carpenters and is now a research fellow with the Labor and Worklife Program at Harvard Law School, argues that construction unions have become more welcoming to nonwhites in the last few decades. Mr. Erlich is one of the authors of a book addressing the history of racial exclusion in the building trades. He notes that the original Boston Residents Jobs Policy in 1983 came out of the fight by Black workers for jobs on building sites. But it had to include residents and women to gain white political support and overcome the opposition of union leadership. “There is a legacy of racism, which by no means has been eliminated,” Mr. Erlich said. “I respect folks in the community that complain that things are not changing fast enough. And they are not changing fast enough.” Still, he argues, unions realize that “they need to become less homogeneous and reflect the demographics of the city.”

In the final days of President Donald Trump's time in the White House, his lawyers told Education Secretary Betsy DeVos that is was illegal for her to broadly cancel federal student loans for 43 million Americans. Under President Joe Biden, uncertainty on the student-debt cancellation conversation persists. ... Others would disagree. Attorneys and legal experts at the Legal Services Center of Harvard Law School wrote to Massachusetts Sen. Elizabeth Warren last year that while the power to cancel student debt "rests in the first instance with Congress," the Education Secretary "has the authority to modify a loan to zero" under the HEA.

When the Supreme Court shot down a challenge to vaccine mandates this time last week, Justice Amy Coney Barrett included a rebuke to the perpetual use of the shadow docket and provided an explanation as to the court's apparent about-face in a challenge to a controversial abortion ban it had let take effect just two months prior.  ... The shadow docket’s criticism came to a peak after the court refused in a 5-4 midnight ruling to stop the country’s most restrictive abortion ban from going into effect. Nearly two months later, the court agreed to hear the case on an extremely expedited schedule. Barrett’s subsequent opinion in the vaccine mandate case could be an explanation for what happened with the abortion case.  “I think that she was burned … when they let the law go into effect … the reaction was how could you do something at this moment, in an emergency decision, and I think that that's what she's being responsive to,” said Nancy Gertner, a retired federal judge and senior lecturer on law at Harvard.

The Massachusetts “cottage food law” is out-of-date and needs to be updated, according to some. The Bay State was one of the first states to allow the sale of cottage foods, meaning low-risk homemade food products.  Its current cottage food law was adopted in 2000. In the 21 years since some lawmakers say the state has fallen behind. Some states require cities and towns to develop their own regulations and permit licensing. ... All 50 states permit cottage food sales. The FoodLaw and Policy Clinic at Harvard reports 55 bills were introduced to loosen Cottage Food Laws

The Biden administration is calling on Congress to pass legislation that would strengthen government regulation of stablecoins, a form of cryptocurrency that has soared in popularity in the past year. ... Until Congress acts, the working group said that the Financial Stability Oversight Council, a broader collection of financial regulators responsible for spotting risks to the financial system, could coordinate steps to protect investors and oversee stablecoin issuers' reserves. “It would force them into the regulatory perimeter, which is the thing that most people think is appropriate,” said Howell Jackson, a financial regulatory expert at Harvard Law School.

The U.S. oil and gas industry leaks millions of tons of methane, a potent greenhouse gas, into the atmosphere every year. New Environmental Protection Agency rules propose to strengthen requirements for industry to prevent, identify, and repair methane leaks, as science says methane emission reductions will quickly help put the brakes on planetary warming. Harvard Law Professor Jody Freeman joins Host Steve Curwood to discuss the rules and why tackling methane emissions can make an immediate difference. ... Freeman: Well, it's a big deal, because methane is responsible for about 30% of the global warming we're experiencing. And cutting methane is the single fastest, most effective opportunity to reduce climate change risks in the near term. Unlike carbon dioxide, its warming power doesn't come from a gradual build up over time. It's almost entirely from recent emissions. So by reducing methane, now, we can reduce warming that would happen in the near term; it has almost an immediate beneficial impact.

Harvard Law School published this video item, entitled “Countdown to Ames 2021 | Meet the Lila A. Fenwick Memorial Team” – below is their description. In anticipation of the 2021 Ames Competition Final Round meet the Lila A. Fenwick Memorial Team, respondents. The event will take place on November 16, 2021. The Ames Competition is one of the most prestigious competitions for appellate brief writing and advocacy in the country. Students participating in the Final Round start the competition in the fall of their 2L year. From there, two teams progress to the Final Round through their strong research abilities and excellent written and oral advocacy. Harvard Law School YouTube Channel

The New York Independent System Operator's (NYISO) ROFR proposal comes as FERC is considering revising its rules governing transmission planning. Utilities want FERC to give them the right to build transmission lines in their footprints instead of opening those projects to a bidding process. ... Competition has generally worked well in New York for public policy transmission projects, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. However, the proposal marks the second recent attempt by New York transmission owners to monopolize transmission that will be built to facilitate the state's clean energy goals, Peskoe said in an email.

Dana Moore likes to get on the road by 3:30 am. It takes roughly five hours to drive from Corpus Christi to Livingston, Texas, and he tries to beat the morning traffic. He watches dawn slowly break, and stops at the same Buc-ee’s convenience store halfway on his journey to grab coffee and gas. By 8:30 he hopes to have reached the Allan B. Polunsky Unit, a prison in Livingston, where he starts his day: ministering to men on Texas’ death row. ... The ruling could potentially impact prisoners’ religious-accommodation claims more generally, adds Joshua C. McDaniel, the director of Harvard Law School’s Religious Freedom Clinic, which collaborated on a brief in support of Ramirez. Numerous organizations spanning the ideological spectrum, from the American Civil Liberties Union to the U.S Conference of Catholic Bishops, have also filed briefs urging the court to grant Ramirez’s request.

When GreenHat Energy collapsed after blowing millions speculating on power prices, it became plain: Energy traders are essentially gambling, and ratepayers back every bet. ... GreenHat traded in a market operated by the largest of the grid keepers, the RTO known as PJM Interconnection LLC. PJM (the name originally stood for Pennsylvania, New Jersey, and Maryland) directs power from 1,400 generators through 85,100 miles of high-voltage cables in 13 Eastern states and the District of Columbia. Its 65 million electricity consumers have been spared the widespread blackouts that have affected tens of millions of people in Texas and California lately, but they’ve paid for that stability. PJM is supposed to balance the interests of power companies, consumers, and communities, but for years it’s allowed major suppliers such as Exelon, Duke Energy, and American Electric Power to bill ratepayers for high-priced upgrades to sections of the grid where they predominate, according to an assortment of studies. Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, says PJM’s reliable checkoff on new projects allows suppliers to preserve their market dominance and freeze out competition. It’s effectively “a protection racket” for the biggest providers, Peskoe says.

An Israeli cabinet minister’s inability to access the COP26 climate summit in her wheelchair has fueled criticism that the conference is part of the problem on many of the inequalities it was meant to address. Karine Elharrar, Israel’s Energy Minister, uses a wheelchair due to muscular dystrophy and was unable to access an entrance at the summit Monday. “It’s sad that the United Nations, which promotes accessibility for people with disabilities, in 2021 doesn’t worry about accessibility at its own events,” Elharrar tweeted. ... “It’s of course unfortunate that [Elharrar] was left out… and it’s right that attention’s being paid to it, but what’s really more of an issue is the way people with disabilities have been left out of the climate change agenda and dialogue,” said Michael Stein, executive director of the Harvard Law School Project on Disability. “Although we’re all going to suffer, and do suffer, from climate change, right now and in the future, the mortality rate for people with disabilities from natural disasters is as high as four times that of non-disabled persons,” he added.

The New York Public Service Commission (NYPSC) is leading a protest asking federal regulators to reject a proposal that would give incumbent utilities a path to building certain transmission upgrades planned by third-party transmission developers. The state grid operator's right of first refusal (ROFR) proposal, which could give utilities a new income stream, would lead to unfair rate hikes, would fail to balance consumer and shareholder interests, and thwart the Federal Energy Regulatory Commission's efforts to inject competition into the transmission process, the NYPSC said in a Tuesday filing at the commission. ... Competition has generally worked well in New York for public policy transmission projects, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. ... "New York's policies are headed in the same direction, and they all point to a significant influx of clean energy over the next couple of decades," Peskoe said. "[The utilities] are trying to effectively tax clean energy policies by attempting to take a cut of the profits without any competition."

Lawmakers who want to make it easier for home cooks to sell foods like jam, bread, cookies and pickled vegetables said the state’s current system regulating these so-called “cottage foods” is overly burdensome for many would-be entrepreneurs. ... Regina Paparo of the Food Law and Policy Clinic at Harvard Law School told the committee that Cambridge, like Boston, began allowing the sale of cottage food this year, and Worcester has not created a permit process, amounting to an “effective ban” on products from home kitchens. “Many home cooks are from groups disproportionately affected by COVID-19, including women, people of color, immigrants and restaurant industry workers who have suffered high rates of unemployment,” she said. “This bill would contribute to the Commonwealth’s equitable recovery from the pandemic, providing unparalleled economic opportunity to start and run flexible, small businesses from home.”

An op-ed by Noah Feldman: Who created the Constitution we have today? As a law professor, I’ve always thought the best answer was “the framers”: James Madison, Alexander Hamilton and the other delegates who attended the Philadelphia convention in the summer of 1787. The Constitution they drafted has since been amended many times, of course, sometimes in profound ways. But the document, I’ve long reasoned, has also exhibited a fundamental continuity. We’ve always had one Constitution. I no longer think this conventional understanding is correct. Over the course of several years of research and writing, I’ve come to the conclusion that the true maker of the Constitution we have today is not one of the founders at all. It’s Abraham Lincoln.

Large companies’ awards of millions in executive bonuses on the eve of bankruptcy are drawing renewed congressional focus. Bankrupt companies need court approval to award executive bonuses. But there isn’t a similar restriction on pre-bankruptcy bonuses, a loophole that’s been increasingly used by some big-name companies, such as Hertz Global Holdings Inc. and Chesapeake Energy Corp. ... In the wake of public outcry over bonuses awarded to Enron Corp. and WorldCom senior managers, Congress in 2005 amended the bankruptcy code to require court permission before a bankrupt company could offer such compensation. “The amendment was an emotional response and never calibrated to deal with the real problem,” said Jared Ellias, a bankruptcy law professor at the University of California, Hastings and visiting professor at Harvard Law School.