Media Mentions

An op-ed by Noah Feldman: Are we living in 1858 or 1968? That is, are America’s divisions so profound and political institutions so crippled that we are poised for a breakdown akin to the Civil War? Or is the current polarization the product of conflicting social forces that can be gradually reconciled or redirected into more healthy electoral competition? In this more hopeful scenario, even if we undergo 1970s-style economic malaise and the odd trauma like Watergate, we re-emerge and enter a phase of comparative national health and even greatness.

After a brief pandemic respite, share buybacks are back with a vengeance. In the third quarter of 2021, S&P 500 companies spent a record $235 billion on buybacks, adding to the $6.3 trillion spent on stock repurchases in the decade before the pandemic. In a time of supply chain snafus, a justifiably restive workforce, and great economic transitions, corporate America could be investing that money in the future of our economy—in logistics, workers and productive capacity. Instead, buybacks are artificially tipping the scales of skittish markets, while rewarding executives unjustifiably. ... Corporate insiders need to be completely prohibited from personally benefiting during periods of stock buyback activity. The research of former SEC Commissioner Robert Jackson Jr., economist Bill Lazonick, Harvard Law Professor Jesse Fried, and Lenore Palladino (a co-author of this essay) has identified the legal loopholes that allow corporate insiders to sell their own personal shares when they know that buyback purchases are happening, even though such activity has not yet been disclosed to the outside world. Large net sales of insider holdings are more than twice as likely to take place in periods of substantial buyback activity, Palladino has found. It is time we end senior executives’ opportunities to squander value by self-dealing through timely buybacks.

Chinese stocks that trade in the U.S. have always been a double-edged sword for investors, but Americans now face a wicked blade as years of buildup leads to an inevitable end. After hundreds of sketchy offerings on U.S. markets for young China-based companies with huge potential for either growth or complete collapse, the market in these stocks fell apart in 2021. “Valuations have declined sharply. There have been no IPOs in the last few months. And there have been a number of going-private transactions,” said Jesse Fried, a professor at Harvard Law School.

Comments made by U.S. Supreme Court Justice Amy Coney Barrett regarding abortion alternatives are drawing ire from activists. As abortion rights continue to be debated around the country, Barrett said in early December that women with unwanted pregnancies with no access to abortions do not necessarily have to be forced to raise the child. Instead, she argued, the mother could give birth to the child and then place the child up for adoption. However, both abortion and adoption activists say that it is not that simple. ... "It's ridiculous to say it's no problem to eliminate abortion — just place the kids for adoption," said Harvard Law professor Elizabeth Bartholet. "It's not going to be an emotion-free nonevent. There's going to be bonding and connection, and a sense that it's an unnatural act to give your child away."

In May of 2013, the National Center for Missing and Exploited Children alerted the Norfolk County District Attorney’s Detective Unit to “xBostonDad,” an anonymous member of an online child pornography forum whose profile claimed he lived in Brockton, Mass. Detective Lt. Denise Doherty from the Massachusetts State Police took charge of the investigation and, with the help of an undercover agent monitoring the site, made contact with xBostonDad. The agent identified xBostonDad’s Yahoo email and forwarded it along to Doherty, who discovered it was associated with a Verizon-issued IP address tied to four separate networks. Verizon informed police that each network was affiliated with Richard Comenzo, a criminal defense and immigration attorney in Stoughton; one with his apartment complex, two with his law office and one with his company. ... “There’s been some questions about combining pole cameras with things like facial recognition technology … then it would allow you to index [recorded footage] not only by time but by person…,” said Mason Kortz, a clinical instructor at the Harvard Law School Cyberlaw Clinic in Cambridge. “One place the federal courts might draw the line is if there are multiple cameras in an area and you are able to identify a person … across space, across time.”

From systemic racism and inequity to Boston electing its first woman and person of color as mayor, 2021 brought us several stories that will continue to have an impact on our local communities in the coming year. Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School, and Michael Curry, president and CEO of the Massachusetts League of Community Health Centers, joined Jim Braude on Greater Boston to discuss the biggest local and national stories of the past year. ... "I don't think we can underestimate the impact of the change at the top," Gertner said, referring to the Supreme Court. Since Justice Amy Coney Barrett joined the bench, Gertner said, the court has taken on cases and positions based on personal interests, not precedent. "They have enabled gerrymandering. They have decimated the Voting Rights Act," she continued. "And they show every indication of being like that going forward."

Governor Charlie Baker is putting new pressure on the Massachusetts Legislature to finally pass his proposed crackdown on drugged driving, instead of letting the measure — initially filed in 2019 — again die in committee. ... “It’s junk science to the nth degree,” Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School, said in an interview. “The Legislature has no business mandating who or what can be admitted into court — especially testimony that doesn’t meet evidentiary standards. It’s preposterous, and challengeable on any number of grounds.”

After a year of high-profile energy project cancellations, federal courts in 2022 are expected to speak on the role of climate in oil, gas and power rules. In February, the nation’s highest bench will consider the scope of EPA’s authority to regulate carbon emissions from power plants. In the lower courts, judges will consider whether the Interior Department can suspend new oil and gas leasing on federal lands and how the federal government can incorporate emissions cost estimates into regulatory decisionmaking. ... "The Biden administration is trying to take a very measured, legally sound and thoughtful approach for all regulations," said Carrie Jenks, executive director of Harvard Law School’s Environmental & Energy Law Program. "The goal is to enable industry to make the long-term investments that are needed to address climate change and ensure these regulations stick."

For generations of parents, Heidi Murkoff’s 1984 pregnancy guide “What to Expect When You’re Expecting” has been a trusty companion, offering calm, scientifically informed advice for a nerve-wracking nine months. These days, of course, there’s an app for that: What to Expect’s “Pregnancy & Baby Tracker,” which offers personalized articles, videos, graphics of your baby’s development, and other features based on your due date. ... Any platform that allows users to interact or create content eventually will face questions about how to deal with offensive speech, said evelyn douek, a lecturer at Harvard Law School who researches online content moderation. Smaller sites tend to lack the resources to moderate users’ discussions as effectively as the large platforms, she added, and can become hubs of misinformation.

When Rosario went to the police station in southern Mexico to file a report about a criminal gang continuing to threaten her family, she says an officer advised: “Your best bet is to leave.” And that’s what her family did, in late August. The twenty-four-year old Rosario, her husband, two children, two brothers, and her parents fled their hometown. They have joined thousands of others waiting in the Mexican town of Nogales, bordering Arizona, for a chance to seek refuge in the United States. ... Biden’s border plan, drafted by the Department of Homeland Security and the Justice Department, would bring on 800 new asylum officers and new staff for hearings. But it’s a fix to a broken immigration system that advocates such as the Harvard Immigration and Refugee Clinical Program say would deny many asylum seekers “their day in court.”

An op-ed by Stephen Sachs: Our Constitution was meant to be amended, but our process for fixing it is broken. Americans haven’t proposed and ratified a new amendment for half a century — the longest gap since the Civil War. And with so few amendments, the pressure for change falls on judges, encouraging courts to get creative (and political). New amendments need a two-thirds vote in both the House and the Senate, a high bar in a polarized Congress. If a proposal fails that test, we never find out if three-fourths of the states would have ratified it. Lowering these thresholds might produce more amendments. But it would also produce more controversial ones, because a lower threshold lets narrower majorities rewrite our fundamental laws. Instead, we could keep the thresholds but flip their order, letting the states go first. With this alternative, a new amendment proposal could advance one state legislature at a time. Once three-fourths of states had endorsed it, working out disagreements along the way, the proposal would go to Congress for ratification. The approval of two-thirds of each chamber might then be easier to come by, with both blue and red states already having signed on.

As Republican state officials insist that Canadian oil pipelines are necessary to lower energy costs for American consumers, the fossil fuel giant operating those pipelines is suddenly citing the climate crisis its products are creating as a rationale for raising those prices higher, according to new documents reviewed by The Daily Poster. Last month, Ohio Republican Gov. Mike DeWine—who has raked in nearly $400,000 from fossil fuel industry donors—demanded the Biden administration keep open Enbridge's controversial Line 5 pipeline, which runs under the Great Lakes, as a way to reduce energy prices. But Enbridge just dropped a bombshell undercutting that argument: The firm told government regulators that climate change means its tar sands pipeline network only has 19 years left of economic life. That assertion could allow the company to jack up the tolls that its customers pay to transport oil through its pipelines, because pipeline operators are authorized to recoup their operational costs through rate increases—and a shorter timetable means higher levies. "There is something ironic about pipeline companies like Enbridge conceding that they can see the writing on the wall, they're not going to be competitive or needed less than 20 years from today, and as a result they have to raise prices today to account for that," said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School. "There's something incongruous about that."

Chris Lambert, a small business owner in Indiana, says he has encouraged his eight employees to get vaccinated against COVID-19. But for a variety of reasons – including the fact that 90% of them are already inoculated – he has not taken the step that so many in his position are grappling with across the country. ... Only 3.3% of small businesses in Indiana required employees to have proof of COVID-19 vaccination before physically coming to work over a recent weeklong stretch – the smallest percentage among the more than 30 states that reported data, according to a report released on Thursday by the U.S. Census Bureau’s Small Business Pulse Survey. Nationwide, only about 13% of such businesses require workers to show proof of inoculation, according to the census statistics, which were collected between Dec. 6 to 12. ... States in the Northeast and on the West Coast are more likely to see small businesses mandate employee vaccination, while Southern and Midwestern states are less likely, according to the bureau. ... The regional trend doesn’t surprise Carmel Shachar, executive director of Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. The differences follow the same pattern seen with other pandemic public health measures, she says, in which states where there are fewer mask requirements or lower vaccination rates are also the ones “that are being really supportive of employee pushback against vaccine mandates.” She adds: “I think the politicization of public health has a lot to do with it. But then I think some of it also goes to different areas of our country have different traditions and different cultural assumptions when it comes to balancing public health, individual liberties, respect for scientific expertise.”

An op-ed by Tomiko Brown-Nagin: In 2021, I was struck—again—by the role of images in advancing justice. Among the most potent examples were the videos of the murders of George Floyd and Ahmaud Arbery. Images have long been catalysts of change in the struggle for equal justice under law and civil rights in the US, a focus of my scholarship. Photographs of police violence against peaceful demonstrators in Birmingham “sickened” President John F. Kennedy and pricked the conscience of Whites who had ignored the horror of segregation, leading to the Civil Rights Act of 1964. When protesters marched across the Edmund Pettus Bridge in Selma and were attacked by law enforcement officers, footage of what came to be known as “Bloody Sunday” helped turn the tide in the struggle to pass the Voting Rights Act of 1965.

With just over a week left until Michigan's redistricting commission votes to adopt new voting districts for the next decade, the state’s civil rights department says the commission's maps violate federal voting rights requirements. ... An analysis by the department argues the commission's proposed congressional maps don't comply with the Voting Rights Act — the federal law that prohibits voting districts that deny minority voters an opportunity to elect their preferred candidates — because they eliminate majority-minority districts, where nonwhite voters make up more than 50% of the district. It found that the commission must draw majority-minority districts in Detroit, Flint, Hamtramck, Inkster, Pontiac, Redford, Saginaw, Southfield and Taylor. Nicholas Stephanopoulos, a Harvard Law School professor who specializes in election law, called the department's work "laughably bad analysis," in an email to the Free Press. The Voting Rights Act doesn't require majority-minority districts, Stephanopoulos said. "Rather, it sometimes requires minority opportunity districts to be drawn — that is, districts where minority voters are able to elect their candidates of choice. In a state like Michigan, with a reasonable volume of white Democrats willing to support minority-preferred candidates, the threshold for an opportunity district is certainly below 50%."

The New Jersey Supreme Court has granted requests from 10 organizations to file legal briefs or make oral arguments when it hears the parole case of Sundiata Acoli, who’s been imprisoned for 48 years for the killing of a state trooper. ... Katharine Naples-Mitchell, a lawyer for Acoli who worked on the brief for the police groups, said the case is important for Acoli, but also New Jersey, which has made strides in criminal justice reforms in eliminating the cash bail system, and now needs to act on parole, to cure wrongs, “on the back end.” She wrote in the brief that the Parole Board’s latest examination of Acoli’s case is not based on law and procedure, but their, “deep-seated discomfort with Mr. Acoli’s political affiliations and beliefs, anger and frustration at his unwillingness to accede to the facts of the crime as found by the jury which he has always maintained he does not remember, and concern that he has not been sufficiently punished even after all these years.”

The power of eye-opening images, by Tomiko Brown-Nagin: In 2021, I was struck—again—by the role of images in advancing justice. Among the most potent examples were the videos of the murders of George Floyd and Ahmaud Arbery. Images have long been catalysts of change in the struggle for equal justice under law and civil rights in the US, a focus of my scholarship. Photographs of police violence against peaceful demonstrators in Birmingham “sickened” President John F. Kennedy and pricked the conscience of Whites who had ignored the horror of segregation, leading to the Civil Rights Act of 1964. When protesters marched across the Edmund Pettus Bridge in Selma and were attacked by law enforcement officers, footage of what came to be known as “Bloody Sunday” helped turn the tide in the struggle to pass the Voting Rights Act of 1965. In recent years, ordinary people with cell phones have borne witness to racial violence and shared their footage on social media, making injustice more visible.

Last week, Kellogg’s workers rejected a contract offer from management that could have ended a two-month strike at four cereal plants. Their decision to stay on the picket lines for a better deal elicited an ugly threat from Kellogg’s: to permanently replace the strikers with other workers. ... It’s routine for companies to bring in replacement workers — “scabs,” in union parlance — to try to maintain production during a strike. But can the company just get rid of the striking workers for good? ... “The bite of the permanent replacement doctrine is the employer has no obligation to discharge the replacement workers when the strike is over to make room for returning strikers,” said Benjamin Sachs, a labor law professor at Harvard Law School. “That means if the replacement never leaves, you can never get your job back.”

The Supreme Court is ending the year starkly split on abortion, with the five conservatives showing all signs they will overturn Roe vs. Wade and let state lawmakers decide whether women may legally end a pregnancy. ... Roberts is no liberal and has repeatedly voted against abortion rights in the past. However, as chief justice, he has often tried to steer the court on a middle path to avoid sharp and divisive rulings. But he is no longer in control. "Now the five on his right can just abandon him," said Harvard Law School Professor Richard Lazarus, an environmental law expert who has been a friend of Roberts for more than 40 years. Instead, he said, control rests in the hands of Justices Clarence Thomas and Samuel A. Alito Jr., conservative veterans who have long been determined to reverse the abortion rulings. "We may be seeing the early signs of a disintegration within the court itself," Lazarus added.

The Conroe school district voted to name a new elementary school after native daughter Annette Gordon-Reed, the Harvard historian and author of the Pulitzer Prize–winning The Hemingses of Monticello.

A column by Lawrence Lessig: The State Department is hosting a democracy summit this week. Representatives from around the world will assemble, virtually, “to set forth an affirmative agenda for democratic renewal.” For the United States, the state.gov webpage declares, “the summit will offer an opportunity to listen, learn, and engage with a diverse range of” democratic actors. America will also, the page continues, in what is certainly the money quote of the whole conference, “showcase one of democracy’s unique strengths: the ability to acknowledge its imperfections and confront them openly and transparently, so that we may, as the United States Constitution puts it, ‘form a more perfect union.’” I’m not certain who precisely is going to be showcasing our own “imperfections.” The agenda online is incomplete. But it is right that we “confront” these “imperfections” “openly and transparently.” Because what’s most striking about America’s understanding of our own democracy is our ability to see what’s just not there. We are not a model for the world to copy. The United States is instead a failed democratic state. At every level, the institutions that the US has evolved for implementing our democracy betray the basic commitment of a representative democracy: that it be, at its core, fair and majoritarian. Instead, that commitment is now corrupted in America. And every aspiring democracy around the world should understand the specifics of that corruption—if only to avoid the same in its own land.