Media Mentions

The Presidential Commission on the Supreme Court of the United States had an image problem from the moment President Biden established it last April, fulfilling a campaign promise that he would examine what might be done with a Court that was “getting out of whack.” The Democratic left, hungry for payback for the two seats they regard Donald Trump and Mitch McConnell as having “stolen,” dismissed it as an effort to shield the president from having to confront their demand to add two or even four additional seats to the Court. Others simply shrugged after noting that Biden asked the thirty-four-member commission—mostly law professors, arrayed from the center-left to the center-right—not for concrete recommendations but simply analysis, for the president’s consideration, of “the principal arguments in the contemporary public debate for and against Supreme Court reform.” ... “What did the Warren Court stand for?” the legal historian Morton J. Horwitz asked in The Warren Court and the Pursuit of Justice (1998), a paean to the period. Horwitz and Breyer were both born in 1938. Their contemporaries, titans of liberal constitutional scholarship like Owen Fiss of Yale and Laurence Tribe of Harvard, eventually came to staff and even dominate the nation’s law school faculties. Nearly any member of this cohort, many of them Warren Court clerks like Fiss and Tribe, might have given an answer similar to the one Horwitz offered: “Like no other court before or since, it stood for an expansive conception of the democratic way of life as the foundational ideal of constitutional interpretation.”

An op-ed by Noah Feldman: Three conservative Supreme Court justices declared this month that the Constitution should be read to give state legislatures unlimited control of electoral procedures, and a fourth said the issue is important enough for the whole court to consider. That’s scary because it could eventually block even state courts from stopping partisan cheating. What’s most important about the issue, however, isn’t the remote (for now) danger that a majority of the court might make a disastrous decision that undermines democracy. It’s the new kind of reasoning that the conservatives are using to reach their preferred result.

In today’s column, lawyers and staff at international law firms in Warsaw, Poland, are opening their homes to Ukraine refugees flowing into the country; Husch Blackwell launched what it called Big Law’s first dedicated team to advise developers of psychedelics and emerging therapies; a Stroock & Stroock & Lavan lawyer was appointed director of a voting rights project at Fordham University School of Law. Leading off, a team of faculty and research staff from law schools at Harvard, Stanford and Yale said recent Big Law firm exits from Russia are a good first step but possibly misleading. “Law firms can and do serve Russian interests from afar; if nothing else, Covid has taught us the possibilities of remote work,” the project said in a statement. The team said it is tracking AmLaw 100 firms and UK100 firms to see which have publicly committed not to profit from work that helps Russia’s war on Ukraine. So far, only four have done that, it said. (Law.Stanford.edu) Another monitoring project, at Yale Law, says over 400 companies have withdrawn from Russia, but others remain. (Yale.edu)

Ukraine’s President Volodymyr Zelensky said in a CNN interview on Sunday that he was ready to negotiate with Russian President Vladimir Putin, but if the talks failed, “that would mean that this is a third world war.” Zelenksy told CNN’s Fareed Zakaria that “without negotiations, we cannot end this war,” adding “if there’s just a 1 percent chance for us to stop this war, I think that we need to take this chance.” ... Robert Mnookin, the Samuel Williston Professor of Law at Harvard Law School and author of “Bargaining with the Devil: When to Negotiate, When to Fight,” outlined a potential negotiated deal. The terms would include the recognition of Crimea as part of Russia and a referendum in the Donbass region on whether residents want to be annexed by Russia or remain part of Ukraine. As part of the same accord, Ukraine would remain a sovereign state but pledge never to join NATO, he said. Mnookin acknowledged such an agreement means that Russia would be “achieving a number of things by reason of aggression,” which is not a good precedent. He also expressed concerns that the United States and other Western allies run the risk of pressuring Ukraine to cede more ground to Russia than it is comfortable doing. That could set the stage for conflicts down the road. The key, he said, is to ensure the “Ukrainian government itself decides to make this deal.”

The vaccine mandate for health-care workers will likely remain firm even as other cornerstones of President Joe Biden’s pandemic response dissolve with the administration’s messaging that the U.S. is in a new phase of the pandemic. The mandate requires health-care workers at facilities paid by Medicare and Medicaid to be fully vaccinated or they risk loss of funding. It was written at the peak of the delta variant surge. The Supreme Court ruled in favor of the Medicare agency’s mandate as the omicron variant ripped through the U.S. health-care system. ... But “the federal government is not a particularly nimble entity. It’s not designed to turn on a dime,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

An op-ed by Noah Feldman: The annual World Happiness Report came out on Friday and, sure enough, the usual rich Nordic and northern European countries clustered at the top. Finland and Denmark ranked as the happiest and second-happiest corners of the planet, and the top eight were all in northern Europe. Afghanistan, Lebanon and Zimbabwe brought up the rear, as war-torn and impoverished countries always do. Data for the survey, issued by the Sustainable Development Solutions Network, a United Nations affiliate, was compiled before the Feb. 24 invasion of Ukraine (No. 98) by Russia (No. 60) presumably reduced human happiness pretty much everywhere.

Investors so far this year have filed a record 529 environmental, social and governance resolutions, and well-known companies including Goldman Sachs, Disney and Walmart received an "F" grade on pay gaps in a new report. These are some of the stories in corporate legal news you may have missed in the past week. John Coates, who last year spent time as general counsel for the SEC and acting director of its Division of Corporation Finance, discussed a range of topics during his appearance on the first day of the Tulane University Law School's 34th annual Corporate Law Institute. Although the conference was held in person this year following an entirely virtual event in 2021, Coates — a former partner at Wachtell Lipton Rosen & Katz — was one of a few speakers who attended virtually. Coates warned during his speech that Russia's invasion of Ukraine could be a harbinger for further deterioration of business relationships across borders, especially with adversaries like China. "Globalization has been so powerful and basic for most of our practicing lives that it's taken for granted," he said. "We're at a point right now where there is real danger of that reversing to a significant extent."

An  op-ed by Mary Ziegler: With Roe v. Wade on thin ice, state legislatures are producing a wave of anti-abortion bills, some of them truly eye-popping. Missouri alone has in recent weeks tried to limit out-of-state travel for abortion, proposed treating the delivery or shipment of abortion pills as drug trafficking, and moved to make it a felony to perform an abortion in the event of an ectopic pregnancy (in which a fertilized egg implants outside the womb), a condition that can be life-threatening.

The two major Democrat candidates running for governor think Massachusetts has an important role to play in combating the climate crisis, they both say they’re focused on making child care more affordable, and there is no daylight between them on abortion rights. But some progressive activists see a bright line difference between front-runner Attorney General Maura Healey and underdog state Senator Sonia Chang-Díaz on an essential issue: criminal justice. ... Lea Kayali (JD '24), a first-year law student at Harvard Law School who used to work for the ACLU of Massachusetts, said she noticed that the senator always advocated for “the most progressive version” of the bills moving through the chamber. Kayali, a self-described prison abolitionist, said Chang-Díaz’s values align more with hers. “I see some bright lines between the two,” she said. “Criminal justice and antiracism need to be at the forefront of this race. We are entering an era where a lot of people want to pay lip service to progressivism . . . In 2022, there is no excuse for claiming to be progressive and not having a bold agenda for fighting mass incarceration.”

The top three U.S. law schools have joined forces to track law firms' policies on working for Russian clients in the wake of that country’s invasion of neighboring Ukraine, accusing some of "splitting hairs about which clients they will avoid." Law professors at Stanford, Yale, and Harvard categorized statements by major U.S. and U.K. law firms regarding their Moscow offices and Russia-related work, calling on them to fully cut ties with the Kremlin, state-owned or controlled firms, and sanctioned entities and people. ... Harvard law professor John Coates said Thursday that researchers hope to expand the scope of the list and to monitor whether firms are living up to their commitments. Such a policing effort would be extremely difficult, however, since many law firm-client relationships are not public.

A former public defender, who has been pursuing a high-profile legal challenge to the federal judiciary's process for handling sexual harassment complaints under a pseudonym, is stepping forward to inform Congress about the judiciary's "unfair and biased" procedures. Caryn Devins Strickland, a former federal public defender in North Carolina, said she decided to shed the pseudonym in order to testify publicly before a subcommittee of the U.S. House of Representatives' Judiciary Committee examining sexual harassment in the judiciary. ... The case is Roe v. United States, 4th U.S. Circuit Court of Appeals, No. 21-1346. For Roe: Jeannie Suk Gersen of Harvard Law School and Cooper Strickland

A Metro Detroit native and Harvard alum, Stephen L. Ball has been elected Harvard Law School’s new dean of students— making history as the first Black male to hold the title in over two centuries. According to C and G News, the 36-year-old is the first Black male to serve in the role and the second Black person, following the previous appointment of a Black woman to the post. ... “This is such a tremendous opportunity on both a professional and personal level,” said Ball in a press release statement.

Citigroup, one of the largest financial institutions in the United States, has begun offering to pay for travel expenses for employees who travel out of state to access reproductive health care. The new policy, which went into place this year, is "in response to changes in reproductive healthcare laws in certain states in the U.S.," the bank said Tuesday in a filing with the Securities and Exchange Commission (SEC). ... "We'll be watching what the details are because that could matter to in terms of whether the court seems open to arguments that abortion is unconstitutional, and states should be disallowed from having abortion be legal within their borders or not," Mary Ziegler, a visiting professor of constitutional law at Harvard Law School and author of "Abortion and the Law in America: Roe v. Wade to the Present," told ABC News in January. "That will tell us a lot about what states are actually going to be able to do."

An op-ed co-written by Alejandra Caraballo: In February, the indicted Texas attorney general Ken Paxton sent a letter to Texas state representative Matt Krause offering his legal opinion on gender-affirming care for trans youth. His opinion, despite overwhelming scientific evidence to the contrary, is that such care amounts to child abuse. Texas governor Greg Abbott then vouched for Paxton’s opinion, directing state officials and even private citizens to report and investigate the families of trans youth for affirming their children’s gender identity.

Annie Hollister had designs on a public interest career when she entered law school in fall 2017 as the campaign to organize Harvard University's graduate student workers and teaching assistants geared up for a second election. Hollister had inherited a "vaguely positive attitude" toward unions from her father, a member of International Alliance of Theatrical Stage Employees Local 52. So she was an easy sell when a classmate approached her about signing a union card in the lead-up to a rerun election, but not quite a true believer. ... Benjamin Sachs, a professor at Harvard Law School and a co-director of the Labor and Worklife Program, said he's observed an uptick in interest in the labor program over the last several years amid broader public attention to unions. Now, labor law courses are overenrolled and students face long waitists to join seminars in advanced labor topics. "My sense is that participation in the graduate student union has been an incredibly important and formative experience for a lot of those students," alongside other initiatives, like the Clean Slate for Worker Power project that reimagines labor law, Sachs said.

"Bottom line – Ukraine got what it wanted from the court in this case, which is the indication of provisional measures asking Russia to stop its military operation," wrote Dr Marko Milanovic, professor of Public International Law at the University of Nottingham School of Law, in the European Journal of International Law, shortly after the ICJ pronounced its order in the case brought on by war-torn Ukraine against Russia. ... Meanwhile, Radhika Kapoor, a program fellow at the Harvard Law School Program on International Law and Armed Conflict told The Quint: "First, the decision is in some sense an ex parte decision, since Russia all but refused to participate. Second, the application in itself is very convoluted because unlike the genocide case against Myanmar, e.g., this one is sideways: Ukraine is saying we did not commit genocide so how can Russia say they're invading to prevent genocide?"

An op-ed co-written by Laurence Tribe: On 8 March, a jury took three hours to render a guilty verdict against Guy Reffitt, a January 6 insurrectionist. Donald Trump could not have been pleased. DC is where Trump would be tried for any crimes relating to his admitted campaign to overturn the election. Jurors there would have no trouble finding that the evidence satisfies all statutory elements required to convict Trump, including his criminal intent, the most challenging to prove. That is our focus here. A 3 March New York Times story asserted that “[b]uilding a criminal case against Mr Trump is very difficult for federal prosecutors ... given the high burden of proof ... [and] questions about Mr Trump’s mental state”.

In less than three weeks, Ukraine’s apartment buildings, once warm homes to families and pets, have become impossible to live in. Infrastructure that once served millions, has become inoperable, unusable. City centers full of shoppers have been reduced to rubble. Hospitals meant to provide care and sanctuary have become scenes of destruction. ... “People are killed in the damage. People are left homeless. People are killed in the rubble as the building collapses. But then there also is environmental damage,” said Bonnie Docherty, associate director of armed conflict and civilian protection at Harvard University’s International Human Rights Clinic. She noted that some buildings contain asbestos or other types of toxic material that could be released in the destruction.

Weeks into the war in Ukraine, Facebook's parent company Meta is poised to tap its oversight board for guidance about a policy shift allowing users in Ukraine to post some calls for violence against Russian invaders. It would mark the first time the panel has formally weighed in on the tech giant's flurry of actions in response to the war, and it could shape its rules on violent rhetoric moving forward. ... The oversight board has effectively been unable to weigh in on any of the tech giant's massive policy shifts in recent weeks, and now that it will, it's on "a very small slice of what Facebook's doing," said Evelyn Douek, a lecturer at Harvard Law School.

The media have been quick to rubbish Attorney General Merrick Garland for his failure so far to indict former President Trump over the Jan. 6 attack on the U.S. Capitol. They have tarred him with epithets worthy of Trump himself, such as “Merrick the Mild” and “Merrick the Meek.” And a host of former prosecutors and law professors have criticized his inaction, saying that Garland needs to indict Trump to vindicate the rule of law. ... Frustrated at the inaction, the redoubtable Harvard Law professor Laurence Tribe has called on Garland to appoint a special counsel. Tribe argues that a special counsel is “the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges.” Tribe says that such an appointment is “imperative.”

An article written by Jill Lepore: In 1925, Lela V. Scopes, twenty-eight, was turned down for a job teaching mathematics at a high school in Paducah, Kentucky, her home town. She had taught in the Paducah schools before going to Lexington to finish college at the University of Kentucky. But that summer her younger brother, John T. Scopes, was set to be tried for the crime of teaching evolution in a high-school biology class in Dayton, Tennessee, in violation of state law, and Lela Scopes had refused to denounce either her kin or Charles Darwin. It didn’t matter that evolution doesn’t ordinarily come up in an algebra class. And it didn’t matter that Kentucky’s own anti-evolution law had been defeated. “Miss Scopes loses her post because she is in sympathy with her brother’s stand,” the Times reported.