Media Mentions

The Justice Department’s decision to charge Oath Keepers with seditious conspiracy last week makes clear that prosecutors consider the Jan. 6 attack on the Capitol part of an organized assault to prevent the peaceful transfer of presidential power. ... “The other shoe has yet to drop — that is: When will the Justice Department promptly and exhaustively investigate the part of the coup attempt that I believe came perilously close to ending American constitutional democracy, basically, without a drop of blood?” said Harvard Law School Professor Laurence Tribe, a constitutional scholar and outspoken Trump critic.

Teresa Owusu-Adjei has been PwC’s U.K. head of legal for nearly a year, but there is something she has only recently told her team. Despite heading up a 400-strong legal business, she is not actually a solicitor. ... Robert Couture, a senior research fellow at Harvard Law School’s Center on the Legal Profession, interviewed 20 senior leaders at the Global 100 firms about what they knew about and how they were responding to the Big Four. Most did not have a clue.

The decision by Senators Kyrsten Sinema and Joe Manchin to block their fellow Democrats from passing new federal voting-rights legislation clears the path for years of tightening ballot restrictions in Republican-controlled states. It also marks a resounding triumph for Chief Justice John Roberts in his four-decade quest to roll back the federal government’s role in protecting voter rights. ...  “There’s no consistent explanation that can account for Roberts’s rulings in election-law cases other than just a partisan motive,” [Nicholas] Stephanopoulos, echoing the view of many critics, told me. “Intervene when it’s restrictions on money in politics; don’t intervene when it’s partisan gerrymandering or voting restrictions. Intervene again when it’s Congress trying to do something about racial vote suppression or racial vote dilution. Sometimes mention the Framers, sometimes don’t mention the Framers. It’s anything goes as long as the final outcome is the preferred partisan outcome.”

Throughout the pandemic, law firms have uttered the word “culture” in a variety of contexts and implications—how their culture distinguishes the firm in the war for talent, how their culture has evolved to accommodate remote and hybrid work, why getting back to the office is so crucial to maintain culture. ... “Industrial psychologists would say, there’s a concern that you’re always trying to manage the delta—the difference between what the company says it is and what people experience on the ground,” said Harvard Law professor Scott Westfahl.

A criminal record — or even an accusation long ago dismissed — can be the gift that keeps on taking. Taking away opportunities for a good job, an apartment, a loan. ... Katherine Naples-Mitchell of Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, who filed an amicus brief on the issue, made the case, in an interview with the Globe editorial board, that the judge’s denial wasn’t “in the best interests of justice” as demanded by the law. It “didn’t address the harms to employment or housing,” nor did it “pay conscientious attention to the racial implications” of the state’s expungement law and “the history of disparate enforcement.”

A former federal judge is calling for changes to how other judges think about sentencing, even as they face mandatory minimums and grapple with the sentencing guidelines. Nancy Gertner, who spent 17 years on the federal bench in Massachusetts, wrote in a new paper this week that the role of judges in sentencing has changed over the decades, particularly with the advent of mandatory sentencing guidelines. Those guidelines combined with laws requiring mandatory minimum sentences, she writes, have caused judges to feel more accustomed to handing down longer sentences—even when they have the discretion to do otherwise.

Excerpted from “Civil Rights Queen: Constance Baker Motley and the Struggle for Equality” by Tomiko Brown-Nagin, Dean, Harvard Radcliffe Institute, Daniel P.S. Paul Professor of Constitutional Law, and Professor of History. In the spring of 1963, the eyes of the nation turned to Birmingham, Alabama, then known as the home of a thriving iron and steel industry. In April and May of that year, Birmingham, a land trapped in a “Rip Van Winkle” slumber on issues of race, and the nation’s “chief symbol of racial intolerance,” according to Dr. Martin Luther King Jr., became a flashpoint in the Black struggle for equality.

The seditious conspiracy indictment handed up against Oath Keepers founder Stewart Rhodes and 10 others stemming from the Jan. 6, 2021, attack on the US Capitol shows prosecutors are upping the ante in the sprawling probe, legal experts said Thursday. ... “Good to see DOJ moving up the ladder, but going after the crime that can be established without proof of force or violence — the failed conspiracy to get officials like the VP to overturn the electoral vote count — needn’t start on the lower rungs,” tweeted Laurence Tribe, a Harvard Law professor.

The claim: The Nuremberg Code says 'mandating masks on the citizens of a nation' is a war crime. As the highly contagious omicron coronavirus variant spreads around the country, several states have mask mandates in place. Some social media users say they violate a set of research ethics dating back to World War II. As evidence, a Jan. 3 Instagram post claims to show a section of the Nuremberg Code. ... “The claim that this violates the Nuremberg Code is 100% false," I. Glenn Cohen, deputy dean of the Harvard Law School, said in an email.

In the year it took the Federal Trade Commission to get a judge to green-light its antitrust suit against Facebook this week, Facebook has already changed its name and shifted its focus. ...The legal process is slow, in part, because the stakes are so high. Antitrust decisions that go against corporate giants are rare, but — like the 1982 breakup of AT&T — they reverberate for decades. The FTC suit — along with the Justice Department's antitrust case against Google — is a "principal, landmark antitrust action," said Daniel Francis, former deputy director of the FTC competition bureau and a lecturer at Harvard Law School.

On Jan. 6, 2021, a violent mob of rally attendees, fresh from hearing President Donald Trumpspeak near the White House, marched to the Capitol, forced their way past barricades and a line of police officers and stormed the building, interrupting the certification of President Joe Biden’s electoral victory. ... Republicans then largely boycotted the select committee established by Pelosi in July after she rejected two of McCarthy’s picks. “I think when McCarthy decided not to join formally, the decision was to basically refuse to accept anything other than partisan narrative. I have my story; you have your story. And we lose this very, very fundamental tool to develop a shared sense of what actually happened,” said Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at Harvard University who has studied disinformation within the Republican Party. Benkler blamed a “propaganda feedback loop” where GOP politicians, conservative-leaning media and activated voters all reinforce and police one another.

Members of the House select committee investigating the January 6 Capitol Hill insurrection are weighing what options they have to compel their fellow members of Congress to cooperate with their probe. ... Legal scholar and Harvard professor Laurence Tribe told CNN, "The Speech and Debate Clause and the Arrest Clause protect members from certain inquiries and procedures originating outside Congress, but only political considerations restrict use of the subpoena power by Congress itself to compel sitting members to testify or produce documents needed by a committee like the Special House Committee."

American conceptual artist Barbara Kruger is urging the U.S. Supreme Court to look into the Second Circuit's decision that found Andy Warhol's artwork didn't make fair use of a photo of music legend Prince, saying that such works are "far from lacking creativity." ... Also on Monday, a group of copyright law professors, including Rebecca Tushnet of Harvard Law School, asked the Supreme Court to review the case. They argued that the Second Circuit wrongly disregarded the meaning of the contending works to determine why Warhol's art was transformative, which ultimately infected the court's fair use analysis. "It's [an] important fair use case for all artists, especially those without big names and deep pockets, and I believe the court will see its significance," Tushnet told Law360 by email Wednesday.

For decades, champions of the video game industry have touted gaming’s cultural impact as the equal of literature, film and music. Traditionally, the classic works from those mediums have been preserved for study by future generations, and amid gaming’s global rise in relevance, a group of video game scholars and advocates is pushing to preserve the game industry’s historic titles and legacy in a similar fashion. In the process, though, the would-be preservationists have found a number of challenges that include, ironically, legal opposition from video game companies and the Entertainment Software Association (ESA), a trade organization that lobbies on behalf of game publishers. ... In hopes of resolving the legal challenges around game preservation, a group led by Kendra Albert, an attorney and instructor at Harvard Law School’s Cyberlaw Clinic, took up that legal fight. Albert has argued to the U.S. Copyright Office that libraries and research institutions should be allowed to provide off-premises access to games for researchers. That request was argued against by the ESA, Motion Picture Association (formerly known as the MPAA) and the Alliance for Recorded Music. After the initial victory for older titles no longer on the market in 2018, expanded access was denied by the Copyright Office in October 2021.

An op-ed by Laurence H. Tribe and Dennis Aftergut: In a Jan. 5 speech to the nation, Attorney General Merrick Garland said, “We will, and we must speak through our actions.” Garland’s well-crafted words told Americans what they needed to hear. We maintain hope that he will swiftly investigate the leaders behind the violent Jan. 6, 2021, Capitol attack by a pro-Trump mob that sought to prevent Congress from certifying the 2020 Electoral College vote. But he must also spearhead an investigation into the earlier, bloodless coup attempt that failed to overturn the election and thus made force the only option to interrupt the transfer of power. Unfortunately, little in the attorney general’s words provided any firm basis for that hope.

Next month, the Supreme Court will hear oral arguments in a case involving an Obama-era power-plant rule that’s no longer in effect, and never really was. The Court has agreed to hear so many high-profile cases this term, on subjects ranging from abortion to gun rights to vaccine mandates, that this one—West Virginia v. Environmental Protection Agency—has received relatively little attention beyond legal circles. But its potential ramifications are profound. At a minimum, the Court’s ruling on the case is likely to make it difficult for the Biden Administration to curtail greenhouse-gas emissions. The ruling could also go much further and hobble the Administration’s efforts to protect the environment and public health. ... “The whole model of the New Deal state is that Congress passes laws that delegate to administrative agencies sweeping regulatory power to address the public health and welfare of the American people,” Richard Lazarus, a professor at Harvard Law School, explained. “And they don’t lay out the details, because they couldn’t possibly do that.” These days, of course, Congress is barely even able to pass laws. It hasn’t approved a significant piece of environmental legislation since 1990. The practical effect of the Court’s insisting that it lay out its intentions in detail before executive agencies issue regulations to address new threats—major or otherwise—would be to prevent those rules from being written. This, presumably, is exactly what the coal companies want, and what the public—in red states, and also in blue—should be terrified of.

Persuading judges to wean themselves from the “habit of mass incarceration” is a critical step in transforming the American justice system, says former federal judge Nancy Gertner. Much of the focus on justice reform has been on changing the behavior of prosecutors and police, with judges often assumed to be above the fray, according to Gertner, former senior judge at the U.S. District Court for the District of Massachusetts, and now a professor of practice at Harvard Law School. But in fact little headway is possible without the active engagement of judges willing to overcome deeply engrained resistance to changes in sentencing practices, Gertner wrote in a paper commissioned for the Executive Session on the Future of Justice Policy, part of the Columbia University Justice Lab’s Square One Project on reimagining justice. “The goal is to invite judges to reimagine what community safety really looks like, not with police, prosecutors, and exorbitant mandatory minimums—and the role that judges can play in facilitating it,” Gertner wrote in the paper released Tuesday.

An op-ed by Nancy Gertner: On June 30, 2020, the seven justices of the Supreme Judicial Court, including Chief Justice Ralph Gants, who tragically died months later, wrote an extraordinary letter to the legal community saying: “We must recognize and confront the inequality and injustice … of the disproportionate incarceration of African-Americans, and challenge the untruths and unfair stereotypes about African-Americans that have been used to justify or rationalize their repression.” Only a year later, on December 22, 2021, in Commonwealth v. Sweeting-Bailey, the court’s majority ignored that plea.

Over the past two centuries, the quickest way to spot a gerrymandered map of congressional districts has been to look at their shapes. Distended, jagged, almost laughably contorted boundaries were usually a sign that mapmakers were trying to tip the scales toward one political party or the other. ... One way to stymie partisan gerrymandering is by putting redistricting in the hands of commissions that include Democrats and Republicans. “You can pick half a dozen different parameters, and on every single one of them, you're seeing progress in states that have independent commissions,” said Nicholas Stephanopoulos, a law professor at Harvard University. Independent commissions aren’t a panacea. In some states, legislators have all but ignored the decisions of poorly structured panels. But when designed carefully, the commissions are a significant improvement over the status quo. Democrats in the House have proposed mandating independent commissions in their voting rights bill, the For the People Act. But Republicans have blocked the legislation in the Senate. “With the politicians, once they’re pursuing their self-interests, everything else goes out the window,” Mr. Stephanopoulos said.

With the Supreme Court now set to hear in February a major case over the regulatory powers of the Environmental Protection Agency, some are already…

Zenobia Shepherd can’t wrap her mind around her daughter’s death. Her heart won’t let her. Leilani Jordan, who had developmental challenges and was diagnosed with cerebral palsy, died in April 2020 of complications from covid-19. She was 27 and working in a Maryland grocery store when she fell ill and days later became one of the first faces of the pandemic’s devastating death toll. ... Carmel Shachar, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, said the question of whether an employer is liable if a worker is exposed to the coronavirus in the workplace is “is still fairly novel because the pandemic is still a fairly new phenomenon.” “Litigation around covid-19 workplace exposure has been increasing over the last year, and will likely continue to increase with the omicron explosion of cases,” Shachar said in an email.