Media Mentions

MSNBC's Lawrence O'Donnell speaks to Harvard Law Professor Laurence Tribe about the mounting pressure that Supreme Court Justice Clarence Thomas is facing after text messages his wife sent in the lead-up to the January 6th Capitol riot were made public.

Hulu’s The Girl From Plainville opens with the death of Conrad Roy III (Colton Ryan). The 18-year-old’s body is discovered in his pickup truck in a Kmart parking lot. He has died by suicide. But questions soon emerge about the role a young woman named Michelle Carter (Elle Fanning) might have played in Conrad’s decision to end his life. ... “Will the next case be a Facebook posting in which someone is encouraged to commit a crime?” Nancy Gertner, a former federal judge and Harvard Law professor, told the Times. “This puts all the things that you say in the mix of criminal responsibility.”

A retired Marine brigadier general will replace the top federal public defender for the Western District of North Carolina after the prior office holder became a defendant in a closely watched sexual discrimination lawsuit against the judiciary. ... Jeannie Suk Gersen, a professor at Harvard Law School who represents Strickland, did not respond to a request for comment.

The Justice Department endorsed House and Senate bills Monday that would keep the biggest digital platforms like Meta, Google, Apple and Amazon from giving preferential treatment to their own products. Why it matters: Support from the Biden Administration's DOJ gives the bipartisan bills a boost, and shows that the department thinks they can be enforced and help boost tech competition in the U.S. The big picture: "The fact that the DOJ’s regulatory goals are consistent with the Hill show the seriousness of the DOJ’s antitrust concerns in the technology sector," Jeffrey Jacobovitz, senior counsel at law firm Arnall Golden Gregory LLP and former Federal Trade Commission attorney, told Axios. Driving the news: The Senate Judiciary Committee approved its bill, the American Competition and Innovation Act, in January. A companion bill awaits full House approval. News of the DOJ letter was first reported by the Wall Street Journal. Yes, but: The bills still have to pass the full Senate and House, and face a packed congressional agenda along with bitter partisanship. “It’s always helpful to know where the DOJ stands on competition legislation, but it’s not obvious that this letter will change the legislative dynamics in Congress around the bill," Daniel Francis, former deputy director of the FTC competition bureau and a lecturer at Harvard Law School, told Axios.

Peter Monsini, who died in a tragic accident at a Boston construction site Saturday, was not the first worker to be seriously injured on a JDC Demolition Co. worksite. The Brockton-based company has paid large settlements in recent years in at least three lawsuits brought by workers who got hurt on the job and blamed JDC and other contractors. ... Mark Erlich, a fellow at Harvard Law School's Labor and Worklife Program and a retired officer of the New England Regional Council of Carpenters, said big job sites like these are supposed to have many checks on safety protocols. But things don't always go right. "Every now and then, there will be one of these tragic incidents," he said, "that reminds people why construction is so dangerous."

The Justice Department’s proposed budget for fiscal year 2023 includes $34 million to hire 80 attorneys for the investigation into the Jan. 6 insurrection. The department has already brought more than 750 cases, and Deputy Attorney General Lisa Monaco made clear at a news briefing on Monday that the department is not stopping there. ... The Justice Department will need to make good on its vow to follow the facts wherever they lead. As constitutional scholar Laurence Tribe tells me, there is no “honorable way for [Attorney General] Merrick Garland to avoid pursuing the path Judge Carter has not only clearly marked but blazingly illuminated. Short of klieg lights, Carter has pointed the way to criminal investigation and prosecution of the former president as forcefully as a federal judge properly can.”

The U.S. Supreme Court on Monday agreed to hear the pork industry’s challenge to California’s Proposition 12, a law that restricts certain confinement practices in industrial animal agriculture. The law, passed by nearly 63 percent of voters in a 2018 ballot measure, effectively bans “gestation crates”—narrow, metal enclosures with slatted floors that confine pregnant sows to only sitting and standing, and restrict them from turning around. The industry argues the crates, which have been used in large-scale hog farming for more than 30 years, minimize aggression and prevent competition for food. ... But it only takes four of the justices—not a majority—to agree to hear a case, and the pork industry’s legal argument is considered weak by many legal scholars because Prop 12 applies the same standard to products raised in California as it does to those in any other state. “I think the odds are not great for Prop 12, but I wouldn’t give up at all,” said Harvard constitutional law professor Laurence Tribe. “The Supreme Court’s decisions in this area—going all the way back to the 1920s—I think strongly support California.”

Cooking Practices “can open a window into the lives of enslaved people and help us understand slavery and its legacies,” said Radcliffe Institute dean Tomiko Brown-Nagin on Thursday, introducing a talk by chef and culinary historian Michael Twitty on the intertwined history of slavery and American foodways. The event was part of the initiative on Harvard’s ties to slavery, launched by President Lawrence Bacow in 2019 and headed by Brown-Nagin. The initiative’s faculty committee will be releasing a report of its findings and recommendations next month.

Wild animals possess distinct legal rights, including to exist, to develop their innate instincts and to be free from disproportionate cruelty, fear and distress, Ecuador’s top court ruled in a landmark decision interpreting the country’s “rights of nature” constitutional laws. ... “What makes this decision so important is that now the rights of nature can be used to benefit small groups or individual animals,” Kristen A. Stilt, a Harvard law professor and Faculty Director of the school’s Brooks McCormick Jr. Animal Law and Policy Program, said. “That makes rights of nature a far more powerful tool than perhaps we have seen before.”

An article by Elena Chachko: The Russian invasion of Ukraine triggered a flurry of diplomatic, political, economic and military responses. But more than in previous geopolitical crises, tech giants’ policies and sanctions have played a major role in the Ukraine conflict, alongside those of states and international organizations. Companies like Meta, Google, Apple, Microsoft, Twitter and even TikTok increasingly recognize that they cannot afford to sit geopolitical crises out.

You won’t find Red Pill News or the X22 Report on YouTube anymore. The far-right online shows were taken down in the fall of 2020 after the major social media and tech companies started purging accounts that spread the QAnon conspiracy theory. But you will find both of them on a video-sharing platform called Rumble, where their content ranks among the most popular on the site. ... “It’s an intensely engaged population,” said Yochai Benkler, a professor at Harvard Law School who is a co-author of a book about the ways conservative outlets reinforce their messages through repetition and shut down dissent. For an individual platform like Rumble, he added, the audience is likely to be larger than whatever the size is on paper.

Conservative activists have lodged a record number of shareholder proposals at US annual meetings this year, setting up a highly politicised proxy season as they take advantage of new regulatory guidelines and borrow topics and tactics from their liberal foes. ... Lucian Bebchuk, a Harvard law professor who studies shareholder resolutions, said that sharply worded proposals sometimes draw attention but their impact may be limited. “The pressure [chief executives] are facing is not so much the number of proposals but what percentage of support they think the proposals will get,” he said. “When they think a proposal will not get many votes, it is not a source of pressure that would lead them to do anything different.”

Washington obsesses over how many Republicans will vote for the eminently qualified Supreme Court nominee Ketanji Brown Jackson, or Joe Manchin's (D-W.Va.) latest attention-getting move, or the forever tribulations of Vice President Kamala Harris. There's a lot more real action out in the states, at least in the red states. They are shredding rights for voting, minorities, women, gays and people with disabilities. ... “This is political demagoguery,” says Harvard Law School professor Randall Kennedy, an expert on the subject. It's used mainly, he told me, by right-wingers to “smear any liberal who advances a progressive race agenda.” There are, he adds, critical race theorists who “spout implausible and sometimes downright ugly theories,” which serve to give “oxygen to the right-wing campaign of repression.”

Occasionally a Supreme Court case puts its dominant block of Justices in the difficult position of having to choose between two deeply held policy goals. How they resolve this conflict offers a glimpse of their cultural and political values and interpretive commitments in action. This political quandary was visible last week when the Court released its decision in Ramirez v Collier. Ramirez required the current conservative majority to choose between its longstanding desire to expedite executions and its commitment to offering expansive protections to religious freedom. ... Writing about such interest balancing almost sixty years ago, Harvard Law Professor Charles Fried said that it did little to constrain judges. Interest balancing, Fried said, “neither compels a precise solution nor even precludes one.”

Former U.S. Army prosecutor Glenn Kirschner said that Virginia "Ginni" Thomas, the wife of Supreme Court Justice Clarence Thomas, "must be subpoenaed" by the House select committee investigating the January 6, 2021 attack against the U.S. Capitol after her text messages with a top Trump administration official were reported this past week. ... "I agree fully with NYU's Stephen Gillers," Harvard constitutional law professor Laurence Tribe posted to Twitter on Friday. "Justice Thomas must take no part in the consideration of any case related to the 2020 election, the 1/6 Committee, the attempted coup, or the insurrection."

Back in the 1990s, when I was a reporter in Japan, one of the most prescient commentators about financial trends I knew was Chris Wood, the veteran reporter-turned-stock-market-analyst, who predicted the collapse of the Japanese bubble, and now writes perceptively about global markets for Jefferies. ... But the rise of these ESG-linked bonus metrics can be dangerous to shareholders, employees and the environment, according to research published this month by Lucian Bebchuk and Roberto Tallarita at Harvard Law School. Too often, these new ESG-linked bonuses are vague, opaque and “can be exploited by self-interested CEOs to inflate their pay-offs, with little or no accountability for actual performance,” they said.

To celebrate the one-year anniversary of Pioneers and Pathfinders, we present this "best of" episode, featuring our first guest, Dr. Heidi Gardner. Dr. Gardner is a distinguished fellow at Harvard Law School's Center on the Legal Profession and faculty chair of the school's Accelerated Leadership Program and Sector Leadership Masterclass. She is also the best-selling author of Smart Collaboration and noted thought leader on the topics of collaboration, lateral hiring, in-house legal teams, leadership, and performance.

The 2022 Disabled American Veterans (DAV) Distinguished Speakers Series at Harvard Law School put a spotlight on the toxic health effects of burn pits, and featured a keynote address by U.S. Senator Kirsten Gillibrand (D-NY).

Legal experts quickly knocked former President Donald Trump's lawsuit filed Thursday targeting former Democratic presidential candidate Hillary Clinton, the Democratic National Committee (DNC) and a number of others—calling it "absurd" and "garbage." Trump's attorneys filed the lawsuit in the Southern District of Florida, claiming that Clinton and other members of the DNC "orchestrated an unthinkable plot—one that shocks the conscience and is an affront to this nation's democracy." The alleged plot in question involved falsifying records and manipulating data in an attempt to "cripple Trump's bid for presidency" during the 2016 election, they contend. ... "An absurd lawsuit by an absurdly litigious former president who has only himself to blame for being compromised by Putin and thus looking like he is compromised by Russia," Laurence Tribe, a professor of Constitutional Law at Harvard, tweeted on Thursday.

Judge Ketanji Brown Jackson's confirmation hearings may have been historic, in that she is the first Black woman nominated for the Supreme Court. But they have not been without precedent, at least with regard to questions on crime and race that she faced from some Republican senators, such as Tom Cotton of Arkansas, who have tried to portray her as "soft on crime." ... Guy-Uriel Charles, a professor at Harvard Law School, attributed that to what he described as a combination of "extreme partisanship" and racial and gender dynamics. "There's no doubt that the Republicans are trying to score as many partisan points as they possibly can with their base, and that they believe that there is some retribution to be paid for past Republican nominees," such as Amy Coney Barrett and Brett Kavanaugh, he said. "So part of their motivation is clearly partisan. One has to account for that."

The way activist investing works in the U.S. is generally that an activist investor quietly buys up a chunk of a company’s stock, announces that she owns the stock, and goes to the company’s managers asking them to change something about their strategy or operations. Sometimes the managers agree, there is a productive conversation, the activist helps the company improve, the stock goes up and eventually the activist sells at a profit. Sometimes the managers disagree, and the activist tries to pressure them into doing what she wants. She might wage a public campaign, writing open letters explaining her position. She might talk to other shareholders — big institutional holders who don’t wage activist campaigns themselves but who own a lot of stock — to persuade them that she is right. ... And here is a comment letter from Harvard Law School professor Lucian Bebchuk: For hedge fund activists that accumulate economic positions in a target with significant market value through equity swaps, the Equity Swap Rule would lead to disclosure of the activist’s potential interest in engaging with the company at a much earlier time and stage of accumulation than under current rules. Disclosure at such an early stage would curtail the ability of such activists to accumulate a position prior to their initial disclosure. Such early disclosure would also enable management to start engaging in defensive actions much earlier than under current rules. Altogether, for such activists, the Equity Swap Rule would substantially reduce their payoffs and considerably discourage their activities.