Media Mentions

At a recent Petrie-Flom Center Book Talk, Harvard psychologist Daniel L. Schacter discussed the updated edition of his influential 2001 book, “The Seven Sins of Memory: How the Mind Forgets and Remembers.”

If you've seen many political ads this fall, you may have the impression that Virginia is experiencing a crime wave. But, criminal justice advocates say the numbers tell a different story. ... They're worried that fears of rising crime might undermine efforts to bring back a parole system or abolish solitary confinement or defelonize drugs. They're particularly concerned about the narrative of rising crime because, well, they say it's just not true. ... Premal Dharia at the Institute to End Mass Incarceration says the long-term trend about what's been happening behind bars is one that remains troubling. "We lead the world in incarcerating people, and we disproportionately incarcerate Black and brown people," Dharia says. And now that advocates for criminal justice reform are finally seeing some measure of success, she says efforts at addressing that disparity behind bars are imperiled by misinformation and fear. "An important if not central structural obstacle is the creation and proliferation of often misleading narratives that stoke fear, that play into old political tactics and that are often not grounded in actual needs and desires of our communities," explains Dharia.

Republican legislative leaders unveiled their proposed redistricting maps Wednesday, as did the People’s Maps Commission, which provided updated versions of draft maps it had previously released. Both the GOP and the commission — formed by Democratic Gov. Tony Evers but made up of a diverse group of community members who drew on extensive public input — say their maps are fair and nonpartisan. Democrats jumped on Republicans’ maps, put forward in a redistricting bill, as being overtly partisan and even more gerrymandered than the maps that have been in place for the last decade. Over the past 10 years, Republicans in the Assembly, who received less than half of the total votes statewide, secured around two-thirds of the districts thanks to the maps they drew after the last census. ... Ruth Greenwood, director of Harvard Law School’s Election Law Clinic and a self-declared “map enthusiast” and “political junkie” used the PlanScore and said that the Legislature’s maps “would almost certainly ensure a GOP majority in the Legislature for another decade.” Greenwood ran the GOP-drawn maps through PlanScore — a program that predicts precinct-level votes for districts based on past election results and U.S. Census data — and labeled the maps as unfair. PlanScore uses four metrics, and the Wisconsin GOP’s legislative maps in all four categories were labeled as having “a Republican skew.”

Since 1998, the IRS has been prohibited from assessing penalties against a taxpayer unless the initial determination that the penalties should be assessed was personally approved, in writing, by the examiner’s immediate supervisor. The rule requiring written supervisory approval, 26 U.S.C. § 6751(b), was largely ignored by the IRS and the tax practitioner community until 2016, when a pair of cases in the United States Tax Court, Graev v. Commissioner and Chai v. Commissioner, raised the issue. Since then, hundreds of cases have held that the IRS failed to follow the rules set forth in section 6751(b) because written supervisory approval was not obtained prior to an initial determination by the examining agent’s immediate supervisor, invalidating hundreds of penalties as a result. But Representative Richard Neal (D- Mass ), the powerful chairman of the House Ways & Means Committee, has introduced legislation that, if enacted, would retroactively repeal section 6751(b) and its important taxpayer protections. ... The proposed legislation Neal has introduced would retroactively repeal 6751(b) and instead, require quarterly certification of compliance with procedural requirements. Keith Fogg, the director of the Federal Tax Clinic at the Harvard Law Legal Services Center, recently wrote about the proposed repeal in Procedurally Taxing, a tax professional’s blog. Fogg opposes the proposed repeal, explaining, “Some taxpayers who deserved penalties have received windfalls because the IRS failed to pay attention to IRC 6751(b) for the first 15 years of its existence and because the Tax Court created rules regarding the timing of the required supervisory signature that the IRS might not have anticipated. The litigation over the past several years has educated the IRS and those types of windfalls should rarely occur going forward.”

President Joe Biden said on Thursday he would be open to doing away with the filibuster in pursuit of protecting Americans’ voting rights, bolstering voting rights’ advocates calls to abolish the controversial rule after Republicans blocked federal voting legislation from advancing for the third time this year. Wednesday’s 49-51 Senate vote barred any debate from occurring on the Freedom to Vote Act, a bill that would have enacted automatic voter registration, guaranteed at least 15 consecutive days of early in-person voting and allowed for no-excuse mail voting in federal elections among other measures. ... “This is further confirmation that paring down the bill isn’t going to make a difference,” says Nicholas Stephanopoulos, a professor at Harvard Law School who specializes in election law. “[Democrats] haven’t come close to getting the vote of a single Republican Senator—let alone 10 Republican senators—so we’re nowhere near anything like a 60-vote supermajority.”

Some six months after a Boston-based youth advocacy group released a critical report alleging the city’s police department over-polices Black people and youth in the city, the department announced a new policy for policing gangs and identifying members or affiliates. ... The New Bedford Police Department, like others, uses a “criteria list” to determine whether an individual is a gang member. Each criterion has a specific point value, and if individuals meet a certain number of points, they will be labeled by law enforcement as a gang member or affiliate. ... The new policy increases the minimum points needed to 20, which can be reached from 17 possible criteria, to be “verified as gang affiliated.” Some of the criteria have new point values that are at least half the value from those on the original list. ... Katy Naples-Mitchell, an attorney with the Charles Hamilton Houston Institute for Race & Justice, said the Boston Police Department also amended its policy in 2021 and now uses the term “associate.” Boston police currently use a 10-point threshold to verify someone as a gang associate, according to a policy document.

Two days before his deployment to the Middle East in 2019, Air Force Technical Sergeant Charles Cornacchio was in uniform when movers came to his home at Hanscom Air Force Base to pack up his belongings and take them to a storage facility. ... As the 18-wheeler drove away, Cornacchio said he remembered thinking, “Man that’s everything I own, but my dog.” Soon, all of it would be gone. ... The unauthorized sale triggered a lawsuit against the company last year filed by the Justice Department for violating a law that prohibits storage companies from selling the possessions of military members on active duty, unless they obtain an order from a federal judge. Last month, Father & Son agreed to pay $60,000 to Cornacchio, along with a $5,000 fine to the government, to settle the allegations that it violated the Servicemembers Civil Relief Act. ... Jack Regan, a senior fellow at Harvard Law School’s Veterans Legal Clinic who represents Cornacchio, said the law provides important protections for military members so they don’t have to worry about economic issues back home while on active duty. He said it was “just astonishing” that a storage company located less than 7 miles from Hanscom Air Force Base was unaware of it.

Republican leaders on Wednesday unveiled their proposal for legislative and congressional district maps, which received immediate criticism for being based largely on existing GOP-drawn districts that have helped Republicans hold strong majorities in both chambers. As Republicans had promised, the GOP proposal would largely align with existing boundaries for legislative and congressional districts, according to an analysis by the nonpartisan Legislative Reference Bureau. The Legislature must redraw political lines every decade based on the latest population figures from the U.S. Census Bureau. The mapmaking process can provide an advantage for the majority party based on how district lines are drawn. ... The proposed maps would almost certainly ensure a GOP majority in the Legislature for another decade, said Ruth Greenwood, director of the Election Law Clinic at Harvard Law School. Greenwood ran the GOP-drawn maps through PlanScore — a program that predicts precinct-level votes for districts based on past election results and U.S. Census data. “I’d say it’s as extreme as the gerrymander for the last 10 years,” Greenwood said. “It essentially bakes in almost the same level of partisan advantage and so we would expect to see another decade where it wouldn’t matter whether more people voted for Democrats than Republicans, Republicans would still maintain control.”

TikTok and Snapchat will testify before Congress next week for the first time, spokespeople for the companies confirmed Wednesday, as Senate lawmakers broaden their investigation into how social media platforms are affecting kids’ safety. Meanwhile, Facebook CEO Mark Zuckerberg is being called by the same panel to appear on Capitol Hill for what would be his eighth time in four years, and the 31st time for any Facebook executive in that same time span, spokesman Andy Stone confirmed. The disparity highlights how lawmakers’ oversight of Silicon Valley companies has fixated on a few major platforms, most notably Facebook. ... But some researchers such as Harvard Law School lecturer Evelyn Douek have argued that Congress’ myopic focus has made it all but turn a blind eye to several of the world’s most influential sites, including TikTok, Snapchat and YouTube, which will also testify next week. Douek, who has challenged lawmakers to summon YouTube CEO Susan Wojcicki in particular to testify for the first time, celebrated the lineup for the next hearing.

Harvard constitutional law professor Laurence Tribe rejects former President Donald Trump’s arguments against the release of documents relating to the U.S. Capitol riot as “truly laughable.” Trump this week filed a lawsuit seeking to block or at least delay the release of records to the House select committee investigating the Jan. 6 violence, which he was impeached for inciting. The ex-president called it an “illegal fishing expedition” and cited executive privilege, even though he’s no longer in office. On Wednesday’s broadcast of CNN’s “OutFront,” Tribe said Trump’s claim “that he is not trying to hide the truth, but just preserve the Constitution, is really quite laughable.” Tribe also dismissed Trump’s view that it would be “unconstitutional” for President Joe Biden’s view of executive privilege to override his own. That was “mistaken,” said Tribe. “And his argument that there is no legitimate legislative purpose is truly laughable,” Tribe added.

Sen. Elizabeth Warren (D., Mass.) has proposed a new measure that would empower creditors in chapter 11 cases to pursue allegations of self-dealing by private-equity owners, rights that currently lie with corporate directors selected by those investment firms. ... Under Sen. Warren’s bill, independent directors “won’t be able to just tidy-up claims against insiders,” said an author of that study, Jared Ellias, a professor at the University of California Hastings College of Law [and visiting professor of law at Harvard Law School].

An op-ed by Terri Gerstein: How much should someone be paid for cleaning a 1,700 square-foot bank? A janitor in Washington State was paid an average of $6.59 per job doing this work — not $6.59 per hour, but $6.59 for the entire cleaning job. According to a lawsuit filed earlier this year by the state’s attorney general, the janitor and other immigrant workers with limited English skills were lured into this grueling, grossly underpaid work through a scheme common in the industry: A janitorial company sold the workers franchises that were pretty much bound to fail. In these situations, the price is steep, the cleaning jobs are inherently unprofitable and the franchise purchases are financed through loans from the company, to be paid off with deductions from pay. In the end, workers toil for next to nothing, lack the autonomy of a true independent business and face what is essentially a crippling payday loan keeping them indentured to their employer.

An op-ed by Noah Feldman: It should be no surprise to anyone that the Biden administration’s commission on Supreme Court reform seems poised to offer recommendations that will not endorse packing the court. After all, the commission was born of Joe Biden’s desire during the presidential campaign not to commit himself to adding new justices. It was populated with distinguished legal scholars and members of the bar, most of whom share a meaningful commitment to the preservation of our legal institutions. But it doesn’t follow that court packing is permanently off the table. That’s because of the wild card introduced by the Mississippi antiabortion law that the Supreme Court will consider this fall and decide next spring.Put bluntly, if the court overturns Roe v. Wade, all bets are off.

New rules affecting the electric power system issued by the Federal Energy Regulatory Commission should apply everywhere, including in parts of the country that lack organized power markets, FERC Chair Richard Glick said yesterday. ... The Midcontinent Independent System Operator has also urged FERC to apply future transmission planning reforms to both RTOs and non-RTOs, since leaving non-RTOs out of certain requirements could give utilities a reason to leave the organizations, said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. "Glick is clearly addressing a broader point, not just about transmission development," Peskoe said. "In general, FERC has to more actively regulate the utilities that are not in RTOs, in part to ensure that utilities not in RTOs will not stay out to avoid FERC rules and those already in RTOs won’t leave in order to avoid FERC rules."

A book review by Lael Weinberger, Olin-Searle-Smith Fellow in Law at Harvard Law School: War is hell. This aphorism is often ascribed to William Tecumseh Sherman, the Civil War general whose vision of total war was the most unflinchingly ruthless of any of the major leaders of that brutal conflict. Yet today the aphorism doesn’t quite fit. The modern American way of war is much neater, cleaner, and more precise. Law circumscribes war, and remote-control drones often carry it out. It tolerates fewer collateral casualties than anything seen in the bulk of American history. Modern American war is, or at least aspires to be, humane. Yet in Humane: How the United States Abandoned Peace and Reinvented War, a characteristically provocative work of historical scholarship, Samuel Moyn forces readers to ask whether this shift in the character of war has a dark side.

Price rises—they keep on coming. Even before the recent surge in energy prices, companies had been warning about inflationary pressures in their supply chains.  ... Government climate policies, such as biofuel mandates, help drive up the cost of energy and food. So do non-commercial decisions made by business and Wall Street. In his 1970 essay on the social responsibility of business, Milton Friedman wrote that when a corporate executive makes expenditures on pollution reduction beyond what’s in the best interests of the corporation or required by law, that executive is, in effect, imposing taxes and deciding how the tax proceeds should be spent. In their critique of the doctrine of stakeholderism as propounded by the Business Roundtable in its August 2019 statement of corporate purpose, Harvard Law School’s Lucian Bebchuk and Roberto Tallarita note the Roundtable’s denial of the reality that the interests of shareholders and stakeholders can clash. Freeing directors from shareholder accountability puts directors in the position of adjudicating these trade-offs and elevates them to the role of social planner—“the ideal benevolent entity conjured up by economists to model socially optimal outcomes.”

For over a century, U.S. Presidents have fought zealously to defend the executive branch’s right to withhold certain information from Congress and the public. President Joe Biden, facing extreme political pressure in the fraught probe of Donald Trump’s role in the Jan. 6 attack on the Capitol, may soon defy that norm. ... Neil Eggleston, a Harvard Law lecturer who served as White House Counsel to President Barack Obama, says that “the facts are just so extreme that no dangerous precedent would be set” if Biden waives executive privilege over Trump’s documents. Based on his knowledge of the White House review process, Eggleston thinks it is unlikely that Biden will withhold any information that could help uncover how the mob was able to infiltrate the Capitol and disrupt the certification of Biden’s presidential victory, given the “compelling need” for answers.

Former president Donald Trump is suing to block the House committee investigating the Jan. 6 attack on the U.S. Capitol from receiving records for its inquiry into the events of that day as well as Trump’s efforts to overturn the 2020 election results. Trump and his attorneys argue that the records requests are overly broad and have no legislative purpose, and they criticize President Biden for not asserting executive privilege to block the handover of those documents. ... Laurence H. Tribe, a constitutional law professor at Harvard, called the suit a “very weak complaint” and scoffed at a key argument in the lawsuit. “The idea that Congress has no legitimate purpose in making this request is almost insane. In fact, no purpose could be higher on the totem pole than protecting the Republic from a coup,” he said. Tribe said that there was one part of the lawsuit that did not seem frivolous: The complaint about overbroad requests for documents. He predicted that a judge might agree to narrow the scope of requested documents.

“When we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences,” Justice Samuel A. Alito Jr. said last month. “So we have to be careful about every single thing that we say.” A fascinating new study of the extraordinary impact of a tiny typographical error in a Supreme Court opinion almost a century ago illustrates the point. The mistake appeared in a slip opinion issued in 1928, soon after the court announced a decision in a zoning dispute. It contained what seemed like a sweeping statement about the constitutional stature of property rights: “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” But the author of the opinion, Justice Pierce Butler, had not meant to write “property.” He meant to say “properly.” ... These days, the Supreme Court is much better about publicizing its errors. That is a consequence of changes instituted by the court in response to a 2014 article by Richard J. Lazarus, a law professor at Harvard, who disclosed that the justices had long been revising their opinions without public notice, sometimes amending or withdrawing legal conclusions.

State judges bedeviled by weirdly shaped and obviously partisan congressional district maps can now get expert help from an unusual source: math nerds. Using sophisticated techniques drawn from statistics and geometry, mathematicians have developed tools that could play a huge role in a gerrymandering lawsuit filed in Ohio and during court fights expected in Georgia, Texas and Oregon. The algorithms can determine whether a map benefits one party or another, with the aim of providing courts and citizens with an objective gauge rather than relying on partisan arguments. While both mapmakers and their critics have long used software to draw the lines, this year will be the first redistricting cycle in which opponents will have the mathematical measures to objectively show that a map is gerrymandered as the maps are being approved for the next decade. That could potentially alter a process that may determine control of the U.S. House in next year’s midterms..In 2014, Harvard law professor Nicholas Stephanopoulos and political scientist Eric McGhee developed the efficiency gap, which measures how many votes each party wasted, either by losing a race or winning by an unnecessarily high margin.

For more than 100 years, a 7-foot-tall statue of Thomas Jefferson has towered over members of the New York City Council in their chamber at City Hall. The statue has stood by for generations of policy debates, thousands of bills passed and a city budget that has soared to roughly $100 billion. It has also withstood another test of time: Two decades ago, a call to banish the statue gained attention, but went nowhere. But as the country continues the slow and painful process of determining who deserves to be memorialized in shared public spaces, the removal of the Jefferson statue is receiving far more serious consideration. ... Annette Gordon-Reed, a Harvard Law School professor and a Jefferson expert, objected to the idea of taking down the Jefferson statue, but described its likely move to the New-York Historical Society, where she serves as a trustee, as the best-case scenario. “This represents a lumping together of the Confederates and a member of the founding generation in a way which I think minimizes the crimes and the problems with the Confederacy,” Ms. Gordon-Reed said.