Media Mentions

The widening revenue gap between a handful of legal titans that pull in billions each year and other law firms will only continue to grow, experts say, resulting in a market consolidation that will likely give them a competitive advantage even over their BigLaw peers. The 10 law firms with the highest gross revenue accounted for nearly 29% of the total $98.7 billion in revenue posted by the 129 firms that supplied or confirmed revenue data for Law360 Pulse's Prestige Leaders report. ... Firms that grow rapidly may not necessarily stay profitable or boost revenue if they acquire various assets that have different levels of profitability. "Just ask our old friends at Dewey & LeBoeuf," said David Wilkins, faculty director of the Center on the Legal Profession and the Center for Lawyers and the Professional Services Industry at Harvard Law School. ... "There are a lot of firms who embarked on an incredible acquisition spree to grow themselves and have grown themselves into unprofitability or failure because of it," Wilkins said.

Two years ago, Air Force Technical Sergeant Charles Cornacchio lost nearly everything he owned when a Billerica storage company auctioned his belongings to the highest bidder while he was deployed to the Middle East. Now, US Representative Seth Moulton, a Salem Democrat and combat veteran, is calling for tougher penalties, including lengthy prison terms for repeat offenders, against companies that illegally sell the possessions of military members on active duty. ... Jack Regan, a senior fellow at Harvard Law School’s Veterans Legal Clinic who represents Cornacchio, said the law provides important protections for military members so they don’t have to worry about economic issues at home while on active duty. It protects military members on active duty — and up to 90 days after their service ends — from foreclosures, evictions, car repossessions, credit card cancellations, and action related to student loan debt. “I think that the purpose of this statute is to protect vulnerable people, namely servicemembers who are deployed and their families from the enforcement of liens that can lead to a loss of property and in a case like Charlie’s a permanent loss of property,” Regan said.

Tomiko Brown-Nagin is a legal historian of what she calls “one of the most celebrated social movements of all time—the black freedom struggle.” Two photographs sit on a bookcase behind her desk at Greenleaf House, the residence of the Harvard Radcliffe Institute’s dean—her role since 2018. One shows her with Justice Sonia Sotomayor, the other with Congressman John R. Lewis, LL.D. ’12. They are proxies for contrasting ways she thinks about the American civil-rights movement. Sotomayor, the first woman of color on the Supreme Court, connects to work Brown-Nagin has done about the movement from the top down, shaped by federal courts, as in her new book on Federal District Judge Constance Baker Motley, called Civil Rights Queen. Lewis, on the other hand, connects to her 2011 book Courage to Dissent about the movement from the bottom up. He was among the early Freedom Riders who challenged Jim Crow laws and headed the bloody march in Alabama from Selma to Montgomery, which led to passage of the 1965 Voting Rights Act. The photos were visible recently as Brown-Nagin took part in a Radcliffe online event as chair of the initiative President Lawrence S. Bacow created on Harvard and the legacy of slavery. The effort is necessary, she said, “to understand and address the enduring legacy of slavery within our university.” The discussion touched on delicate issues, which the report on legacies of slavery, expected this winter, is likely to address: bequests of land, buildings, and money connected with slavery, as well as members of the Harvard community who were embroiled in the system of slavery. “As I’ve said many times,” she went on, “we can’t dismantle what we don’t understand, and we can’t understand contemporary inequity and injustice unless we reckon honestly with our history.”

U.S. District Judge Dabney L. Friedrich ruled last week that an effort to interrupt the counting of the electoral votes can be a crime — even if no violence was contemplated. ... “This December 10 Friedrich opinion does indeed seem important to me,” constitutional legal scholar Laurence Tribe tells me. Whether it is an obstruction charge — or a charge of sedition or conspiracy to commit sedition (under either sections 2383 or 2384 of Title 18 of the U.S. Code) — Tribe observes that the principal obstacle to prosecution has been “the argument that the electoral count certification in the Joint Session of Congress is too ministerial to count as an official proceeding.” However, Tribe concludes, “This federal court opinion undercuts that line of argument.”

A column by Noah Feldman: If you can’t beat ’em, join ’em. That’s the spirit of the law proposed by California Governor Gavin Newsom to empower private citizens to sue anyone who makes or sells assault rifles in the state. The law violates the Second Amendment as interpreted by a federal district court in California. The idea is to circumvent the constitutional ban for a time — just as the Texas legislature has circumvented Roe v. Wade by empowering private citizens to sue abortion providers. Now that the Supreme Court has limited the abortion providers’ ability to get the Texas law frozen in protection of their constitutional rights, Newsom wants to send the message that what is sauce for the conservative goose is also sauce for the liberal gander. Beyond the legal detail, which I’ll explain in a moment, is a serious, deep question: Should liberals stoop to the level of conservatives in circumventing federal courts’ authority? Is this one of those situations where when one side is playing hardball, it’s foolish to bring a whiffle bat? Or is the Constitution in this instance an arena of principle, in which meeting constitutional disrespect with more constitutional disrespect will only erode the rule of law?

Abortions aren't necessary because women can always give their babies up for adoption. That was the argument Justice Amy Coney Barrett appeared to be making during oral arguments in Dobbs v. Jackson Women's Health Organization earlier this month. ... Experts and researchers told Newsweek that Barrett's argument ignores the burden of forcing a woman to carry a pregnancy to term, and minimizes the impact that placing a baby up for adoption can have on birth parents as well as the children involved. ... Elizabeth Bartholet, a professor at Harvard Law School, agreed that Barrett's remarks are "ignorant and misleading about the reality of the abortion decision." However, she noted that safe haven laws are "infinitely better than having such women feel pressured into abandonment of the baby in unsafe ways or, worst case, murdering the baby." But she pointed to disadvantages that include leaving a child "without any ability later in life to know who its forebears were."

Joe Biden’s Commission on the Supreme Court voted on the final version of its report last week. ... Almost no one thinks that the Constitution forbids adding justices, but the draft sounded notes of grave caution all the same. “The risks of court expansion are considerable,” it emphasized. One of the commissioners, the Harvard professor Andrew Crespo, worried that arguments in favor of expanding the Court had been “teed up to be knocked down.” In effect, he remarked, the report sent “a message that the underlying problem … is neither urgent nor serious, if it even exists.” Joined by another commissioner, the NAACP lawyer Sherrilyn Ifill, Crespo’s minor rebellion was the only part of the October meeting to draw serious coverage—forcing the commission back to the drawing board. This was not the first time the commission had accidentally generated the reform energy it was supposed to contain. Back in June, the group convened publicly to discuss for the first time the merits of various reform proposals. And although the interminable meeting seemed intended to sap the will of reform advocates, the testimony that received the most attention by far was that of the Harvard professor Nikolas Bowie, which went viral on Twitter and was given pride of place in both national reporting and op-eds calling for a more democratic law. Building on earlier calls to “disempower” the Supreme Court, Bowie’s testimony helped many progressives see that the threat posed by that institution goes beyond the reactionary attitudes of individual justices, and includes the undemocratic power the justices wield, regardless of ideological leaning.

An op-ed by Dennis Aftergut and Laurence Tribe: The Supreme Court hath given a sliver and taken away the pie. Its ruling last week in Whole Woman’s Health v. Jackson is a wipeout for reproductive freedom, deliberately disguised as a partial victory. The Court looks decreasingly like a true judicial body and increasingly like a wolf cagily donning sheep’s clothing to prey upon constitutional rights. At issue was Texas’ “bounty hunter” anti-abortion law, the most restrictive in the nation. It makes abortions illegal in the state after a fetal heartbeat is detected, usually around six weeks and long before viability. Texas used the sly trick of leaving enforcement to private vigilantes, rewarding them with limitless bounties starting at $10,000 for successfully suing anyone helping a woman who chooses to end her pregnancy more than six weeks after her last period. The acknowledged purpose of that ruse was to evade federal court review on the false premise that only private individuals were enforcing SB 8, not the state.

Only one president, before the current one, won a national election only to see a large proportion of the country outright refuse to participate in our democracy rather than accept the result. That president was, of course, Abraham Lincoln. He concluded that those who conspired in an illegal plan to undo the American experiment in democracy had to be permanently banished from politics. It is a lesson Lincoln's successors forgot, and arguably one that should be studied carefully today. ...With Lincoln's approval, Congress addressed this question directly. "The laws enacted by Congress to prevent former Confederate leaders from acquiring power after the Civil War provide an object lesson for our time," Harvard law professor Laurence Tribe wrote Salon by email. They have been enshrined in law as precedent for stopping those who would commit violence against a democratic government. Of the resulting statutes, Tribe identified this one as the "most pertinent": Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Roe v. Wade has had a rough two weeks at the Supreme Court. On Dec. 1, at arguments over its fate in a case from Mississippi, the five most conservative justices showed no interest in doing anything short of overruling it. ... If the court overrules Roe, an increasingly real possibility, it will have to explain why it is departing from the principle of stare decisis, which is legal Latin for “to stand by things decided.” ... Shifting the analysis from the words of the opinion to the advocacy that gave rise to it is a recent development and yet another way to undermine precedents. Richard J. Lazarus, a law professor at Harvard, explored this mode of argument in a recent article in The Supreme Court Review called “Advocacy History in the Supreme Court.” The article makes the sensible point that a full understanding of a Supreme Court decision requires consideration of how the parties had framed the case.

Critics of Maryland’s newly redrawn congressional maps promised to once again file lawsuits to block the reconfigured electoral districts, which Republicans blasted as a blatant partisan power grab by Democrats. But fighting partisan gerrymandering in the courts now appears even more difficult than a decade ago, when opponents fought a losing battle against Maryland’s last redistricting plan. ... “With a Democratic legislature that has a veto-proof majority, they could easily fix any (Voting Rights Act) problem or any racial gerrymandering problem without drawing additional Republican districts,” said Nicholas Stephanopoulos, a Harvard Law School professor who’s been involved in lawsuits over partisan gerrymandering. “If Republicans sue, all you can really manage is to potentially reshuffle the districts racially but without affecting their partisan breakdown.”

It's been eight months since President Biden established a commission to study proposals to reform the U.S. Supreme Court. ... That commission delivered its report to the president this past week. And while it studied a long list of potential reforms, like increasing the number of justices and imposing term limits, it did not make any recommendations to the president. Given so much at stake as the Supreme Court is set to decide on major issues like abortion rights, we wanted to talk about what comes next, so we called two members of the commission. Laurence Tribe is professor emeritus at Harvard Law School, where he teaches constitutional law. And Judge Thomas Griffith is a former federal judge on the U.S. Court of Appeals for the D.C. Circuit.

Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School and a contributing writer at The New Yorker. She writes widely about the law and its impact on society. In this week’s conversation, Jeannie Suk Gersen and Yascha Mounk discuss the value of robust debate in law school classrooms, the perils of eroding due process in the name of progress, and the legitimacy of the Supreme Court.

A group consisting of seven US state treasurers has written to Unilever urging the company to override Ben & Jerry’s boycott of Judea and Samaria. The treasurers, from Arizona, Idaho, Nebraska, Oklahoma, West Virginia, Louisiana and Mississippi, said that as it was their responsibility to manage the assets of their states in accordance with the law, they were requesting “further clarification” on the company’s ability to override the boycott put in place by their subsidiary Ben & Jerry’s. ... “Key legal experts have recently attested to Unilever’s authority and discretion after reviewing Ben & Jerry’s acquisition agreement,” the treasurers went on to say. “In their joint Newsweek article, Jesse Fried and David Webber, law professors at Harvard and Boston University respectively, clarified Unilever and Ben & Jerry’s joint liabilities pursuant to that agreement. They noted that Unilever’s acquisition of Ben & Jerry’s ‘specifically requires the latter to ‘help Unilever sell the premium ice cream in Israel.”

Mark Meadows, President Donald Trump’s chief of staff during the Jan. 6 Capitol invasion, failed to appear before a Wednesday hearing of the House committee investigating the insurrection, leading the committee to move toward holding Mr. Meadows in contempt of Congress. The former chief of staff — who also previously served in the House — responded by suing Speaker Nancy Pelosi (D-Calif.) and the Jan. 6 committee members, claiming a categorical (and legally unfounded) “immunity of present and former senior White House aides from being compelled to appear before Congress.” Opinions to start the day, in your inbox. Sign up. In defying the legitimate demands of a congressional committee, he joins former Trump adviser Stephen K. Bannon and the other Trump acolytes who have resisted telling the panel what they know. This defiance cannot stand. Mr. Meadows and Mr. Bannon claim they need not testify, citing executive privilege. But, as Peter Keisler, Stuart Gerson and Alan Raul observed in a Post op-ed, it is the current president’s prerogative — not Mr. Trump’s — to protect the interests of the executive branch, which include preserving the president’s ability to consult advisers without congressional intrusion. President Biden declined to assert executive privilege to prevent their appearance before Congress.

An op-ed by Elena Chachko, the inaugural Rappaport Fellow and an SJD candidate at Harvard Law School: During the chaotic withdrawal from Afghanistan this summer, U.S. policymakers had to decide whether to formally recognize the Taliban as the new Afghan government. But the first policymakers to address this question publicly were not government officials. They were trust and safety and public policy executives within major tech platforms Facebook (now Meta), Google and Twitter. Their seemingly minor decision whether to allow the Taliban to use official Afghan government accounts would have major effects, similar to state recognition. If they decided to let the Taliban communicate with the Afghan people through official channels, they would imbue the Taliban with legitimacy. Ultimately, platforms decided to continue banning Taliban content. This is but one example of what I call platforms’ geopolitical turn. Since 2016, major platforms have become increasingly engaged in a plethora of security and geopolitical challenges that were traditionally the state’s domain.

An op-ed by David A. Lax and James K. Sebenius, respectively a distinguished fellow and director of the Harvard Negotiation Project at the Program on Negotiation: With battles looming over money, free agency, expanded playoffs, rule changes, and other issues, Major League Baseball owners “locked out” the players two minutes after the current Collective Bargaining Agreement (CBA) expired on Dec. 1. After 26 years of labor peace, there will be no contact between teams and players, no trades or free agent signings, and no season until a deal is reached. Odds are that the two sides will grind out a compromise before the regular season starts on March 31, 2022. But the raw emotions underlying these talks can escalate, damaging players, owners, fans, hot dog vendors, nearby restaurant and bar workers, as well as municipalities. And current negotiations have begun under the shadow of last year’s ugly owner-player talks during COVID, which only concluded when Commissioner Rob Manfred unilaterally imposed a 60-game season, dramatically cutting incomes.

During a recent Supreme Court hearing, Justice Brett Kavanaugh advanced this case for reversing precedent and canceling a woman’s right to make critical health decisions for herself: “The Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” On the surface, that sounds fair. In a democracy, let “the people” decide what the law should be. But Kavanaugh’s argument is deeply disingenuous, and he profoundly misreads the nature of America’s political tradition. In our system, when a right is deemed fundamental, it cannot be abrogated by a popular vote. The founders created a network of checks and balances — especially the federal courts — to protect the rights of individuals, even when they are unpopular. As Harvard law professor Jeannie Suk Gersen wrote in The New Yorker: “The point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the Court itself has been shifted through political means for this purpose.”

Abortion has been discussed intensely this past week due to oral arguments in a Supreme Court case that could significantly alter the constitutional right to the procedure in the United States. At issue is a Mississippi law that bans abortions after 15 weeks of pregnancy, contra current precedent. If upheld, the law will likely inspire new abortion restrictions in many red states. We begin with the law’s sponsor, Becky Currie, a Mississippi state legislator and registered nurse. “I pray my bill will save millions of babies,” she wrote in Newsweek, where she explained that she’s helped to deliver many, including a 14-week-old born too early to survive. ... The Harvard Law professor Jeannie Suk Gersen framed the law differently. In her telling, it is not an attempt to restore a right to life; it is an attempt to abrogate a constitutional right to privacy and bodily autonomy. “The conservative Justices seemed eager to ‘return’ the question of abortion to the people,” she wrote after listening to oral arguments in the case. “But the point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the Court itself has been shifted through political means for this purpose.” What’s more, she argued that the Supreme Court would undermine its own authority by overturning a long-standing precedent in response to a state law that ran afoul of it. As she put the argument: “The spectacle of states brazenly flying in the face of the Court’s constitutional precedents, shortly followed by the Court’s discarding those precedents to make illegal actions legal after all, would effectively communicate that the Supreme Court is not, in fact, supreme.”

An op-ed by Nancy Gertner and Laurence H. Tribe: We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly. One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court. We listened carefully to the views of commissioners who disagreed. Indeed, the process was a model for how people with deeply diverging perspectives can listen to one another respectfully and revise their views through genuine dialogue. We voted to submit the final report to President Biden not because we agreed with all of it — we did not — but because it accurately reflects the complexity of the issue and that diversity of views. There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates. But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself.

Chika Okafor, a doctoral candidate in economics and the Reginald F. Lewis Fellow at Harvard Law School, recently released “Prosecutor Politics: The Impact of Election Cycles on Criminal Sentencing in the Era of Rising Incarceration,” which looks at the political careers of district attorneys across the U.S. between 1986 and 2006.