Media Mentions

The U.S. Senate will soon consider an antitrust bill aimed at restricting Big Tech's search practices, and the clash between Tesla CEO Elon Musk and Cooley LLP leads to ethical questions about when a law firm is duty-bound to ignore a big corporate client's wishes. These are some of the stories in corporate legal news you may have missed in the past week. ... Law professor David Wilkins, director of the Harvard Law School Center on the Legal Profession, said based on the story's facts that such a request was "absolutely outrageous." Clients can ask to remove an attorney they don't like from working on the clients' matters, Wilkins told Law360 Pulse, but they have no right to ask a firm to fire the lawyer.

For years, the Boston Police Department’s notorious gang database has troubled local elected officials and civil rights advocates, who have raised serious concerns about the list of suspected associates of criminal street gangs: What makes someone land in the database? How exactly it is being used by police and other law enforcement agencies? How effective is the list overall in preventing crime? ... But the changes haven’t satisfied critics. “To be honest, in terms of the what exactly [BPD] has changed and how effective that’s been, it’s still a little opaque,” said Phillip Torrey, director of the Crimmigration Clinic at Harvard Law School. The clinic offered expertise in the recently won case in the Appeals Court. “And to my knowledge, they still use this arbitrary point system where I’ve seen cases of people who get X amount of points for talking to somebody who BPD thinks is a gang affiliate. And then another person does the exact same thing and they get Y amount of points. So, I haven’t seen consistency within that sort of arbitrary point system.”

New data from the Upcycled Food Association (UFA) shows upcycled products are having an unprecedented and growing impact on the ability to prevent food waste. The organization predicts that the 141 Upcycled Certified™ products and ingredients they have certified will have the ability to prevent more than 703 million pounds of food waste per year. “Upcycled foods use ingredients that otherwise would not have gone to human consumption, are procured and produced using verifiable supply chains, and have a positive impact on the environment,” according to an official definition co-authored by Harvard Law School [Food Law and Policy Clinic], Drexel University, World Wildlife Fund (WWF), Natural Resources Defense Council (NRDC), ReFED, and other experts.

Religion isn’t the first thing that comes to mind when looking at the Supreme Court’s latest criminal-sentencing dispute. But it’s “lurking in the background,” Joshua McDaniel said on Bloomberg Law’s Cases and Controversies podcast. Harvard Law’s religious-freedom clinic director explained what the new clinic does and how it got involved in that sentencing case, Concepcion v. United States. The clinic’s amicus brief highlighted spiritual growth and conversion as powerful evidence of rehabilitation for prisoners seeking resentencing under the First Step Act.

Unilever faces an uphill battle to sell Ben & Jerry's, with lawyers warning that the ice-cream brand's Left-wing political activism could pose problems for any prospective buyer. The consumer goods giant unveiled ambitions last week to offload parts of its business, including lower-growth food brands, in an effort to supercharge a push into health and hygiene. ... Jesse Fried, Dane Professor of Law at Harvard Law School, said any new buyer for Ben & Jerry's would "step into the shoes of Unilever and inherit the current board arrangement, as the merger agreement binds Unilever as well as any successors". He said a new owner could decide to litigate against the issue - and in his view, they would win the right to override Ben & Jerry's board decisions.

An open letter urging Spotify to crack down on COVID-19 misinformation has gained the signatures of more than a thousand doctors, scientists and health professionals spurred by growing concerns over anti-vaccine rhetoric on the audio app's hit podcast, The Joe Rogan Experience. ... "Wherever you have users generating content, you're going to have all of the same content moderation issues and controversies that you have in any other space," said Evelyn Douek, a research fellow at Columbia University's Knight First Amendment Institute.

A Florida appellate judge used her dissenting opinion in a parental rights case to call out a Miami-based attorney for misgendering her twice in a court filing, saying it "does not appear to be a typographical error." ... But Kendra Albert, a technology lawyer and clinical instructor at Harvard Law School's Cyberlaw Clinic who uses plural pronouns, shared a different take on the judge's opinion, saying, "Perhaps next time this judge can try and make her point without what absolutely reads as weird dig at trans people? 'Granted, gendered pronouns are tricky in this day and age...'"

Advocates for the disabled, public libraries and documentary filmmakers have urged the D.C. Circuit to rule that a law making it a crime to circumvent technical features controlling access to copyrighted works violates the First Amendment. ... Copyright scholars Pamela Samuelson of the University of California, Berkeley School of Law and Rebecca Tushnet of Harvard Law School also filed an amicus brief Wednesday, arguing that the provisions "disregard and override traditional mechanisms within the Copyright Act that struck the balance between copyright protection and First Amendment interests."

Over 25 percent of the tule elk herd held behind a fence in California’s Point Reyes National Seashore have died this summer. The loss of 72 elk, who faced slow, agonizing deaths from thirst and starvation, brings the population to its lowest since 1993. While the tule elk herd dwindles, an ongoing court battle is being fought over how the National Park Service is managing them. ... According to Kate Barnekow, lead attorney on the Harvard Law lawsuit, the National Park Service announced in December their intention to revise the General Management Plan over the next three years. Tellingly, this announcement came one day before the Park Service was due to respond to the lawsuit in court. Barnekow is concerned that this is an attempt by the Park Service to avoid being told by the court to update the plan, calling it “just another move in a decades-long history to avoid taking actions that they are legally required–as well as ethically obligated–to take.”

Gov. Charlie Baker weighed in on the outrage and questions surrounding the disappearance of 7-year-old Harmony Montgomery and New Hampshire Gov. Chris Sununu’s accusations against a Massachusetts judge in the case. ... “I do not think it's the appropriate response,” said Elizabeth Bartholet, a Harvard child welfare expert. Bartholet said Baker and the legislature know enough already to change current state policy, which she said too often gives unfit biological parents the benefit of the doubt.

Juliette Kayyem on BPR ... Blair Miller and Elizabeth Bartholet discussed the state of adoption laws and child welfare amid the disappearance of Harmony Montgomery. Miller is a Boston Channel 25 reporter and the adoptive father of Harmony Montgomery’s brother. Bartholet is the Morris Wasserstein Professor of Law, Emeritus, at Harvard Law School and faculty director of the Child Advocacy Program.

An obscure 19th-century provision of the U.S. Constitution that barred members of the Confederacy from holding political office is back in the national conversation — and some are hoping it can keep Donald J. Trump and his allies off the ballot. ... Laurence Tribe, an influential law professor at Harvard University, has held private conversations with several members of Congress on the topic as they puzzle through how statutes written in the 1860s might apply in an entirely new context. And while Tribe’s view is that Jan. 6 was indeed an insurrection, it is by no means obvious how courts will interpret the 14th Amendment without clearer signals from Congress.

News that University of Pennsylvania Carey Law School Dean Theodore Ruger intends to pursue sanctions against controversial law professor Amy Wax has sparked a debate about academic freedom, with members of the legal academy nationwide weighing in on both sides. ... “The racist anti-Asian statements by Professor Amy Wax are so beyond the pale that she should be shunned by colleagues and students alike, no less than if she had urged the exclusion of Blacks, Jews, or Women from American life,” wrote Laurence Tribe, Carl M. Loeb University Professor, Emeritus, at Harvard Law School.

A recent federal appeals court ruling calls into question the legality of gang databases and how law enforcement agencies around the country use lists of mostly Black and Latino men and boys to target policing activity, from stop-and-frisks to deportations. ... Lawyers at Harvard Law School’s Immigration and Refugee Clinical Program filed an amicus brief on Diaz Ortiz’ behalf arguing that unsubstantiated gang allegations violate the Constitution’s due process requirements, regardless of how they’re used.

 An op-ed by Noah Feldman: In the shadow of Thursday’s Supreme Court ruling against a sweeping federal vaccine mandate, another crucial legal battle is playing out: a fight about whether and how much to dismantle the regulatory apparatus of the U.S. government. The latest skirmish unfolded in a concurrence to the mandate decision by Justice Neil Gorsuch, who has emerged as the point man of an attack on existing constitutional doctrine governing administrative agencies like the Occupational Safety and Health Administration. Joined by Justices Clarence Thomas and Samuel Alito, Gorsuch seized the opportunity to advance his cause through the legal challenge to OSHA’s authority to regulate vaccine requirements.

Coming up on today's show: ... Laurence Tribe, university professor and professor of constitutional law emeritus at Harvard Law School, talks about the Supreme Court and U.S. democracy, previewing his participation in the 92nd St. Y's conference on Thursday.

A decade after federal regulators opened the door to competition for development of large transmission projects, states — acting at the request of incumbent utilities — are slamming it shut. ... “That’s particularly true in MISO where regional projects basically disappeared as competition went into effect,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School’s Environmental and Energy Law Program. “One reason that’s happening is because it’s so much easier to spend your money where there’s no competition and basically no oversight than to risk going through a competitive process.”

A Harvard Law School clinic has sued federal immigration officials for failing to release records about the use of solitary confinement in immigration detention facilities. The Harvard Immigration and Refugee Clinical Program said in a lawsuit filed in Boston federal court that it submitted records requests to the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement, but the agencies haven’t fully complied in more than four years. The Cambridge-based clinic said immigrant rights advocates have raised concerns over the use of solitary confinement on vulnerable immigrant populations, including LGBTQ individuals and people with disabilities.

The legacy of Martin Luther King Jr. as a relentless fighter for equality and justice is being distorted, says historian and Harvard Law Professor Annette Gordon-Reed. ... “The interesting thing about Black people is that we have founding mothers and founding fathers: Douglass, Tubman, Sojourner Truth,” Gordon-Reed said. “Men and women participating on an equal basis, however they could, to try to advance Black people.”

The Biden administration’s plan announced yesterday to pump $20 billion into expansion of the nation’s transmission networks will target “shovel ready” projects that deliver clean energy, at the same time a nationwide grid expansion is planned and advanced, according to an administration official. ... DOE’s initiative could also inform FERC’s potential transmission reforms by providing additional, informed research and analyses on transmission needs, said Ari Peskoe, director of the Electricity Law Initiative at Harvard University. Typically, FERC has relied on industry players to identify transmission solutions, even though the independent agency and others have argued that the industry has “underinvested in large-scale projects,” Peskoe said.

We’ve reached a turning point on the road to accountability for those who led the Jan. 6 insurrection, whether they stormed the physical congressional barricades or not. ... By Laurence H. Tribe, professor of constitutional law at Harvard and Dennis Aftergut, former federal prosecutor