Media Mentions

People who do not conform to gender norms are at an increased risk of persecution and violence due to a steep rise in exclusionary rhetoric, according to Victor Madrigal-Borloz, the United Nations independent expert on protection against violence and discrimination based on sexual orientation and gender identity and a senior visiting researcher at the Harvard Law School Human Rights Program. This is due in part, he explained at a recent HLS event, to a growing conservative backlash against efforts to recognize gender and gender identity — especially the rights of transgender individuals — in various nations’ laws and policies. Opposition to this recognition, he said, is often framed as a resistance to the imposition of a so-called “gender ideology,” a concept, which he said has long been used to create moral panic and suggest there is “a global conspiracy aimed at destroying the political and social order.” ... Madrigal-Borloz shared his views at a virtual event last month hosted by the HLS Human Rights Program that focused on his year-long investigation into incorporation of gender and gender identity into international human rights law. He had presented his findings in two reports,  The Law of Inclusion and Practices of Exclusion, to the United Nations Human Rights Council and General Assembly this year.

Former U.S. Solicitor General Charles Fried and writer Katie Roiphe discuss democracy in the United States and the Mississippi abortion case before the Supreme Court.

This is the Radio Boston rundown for December 8. Tiziana Dearing is our host. ... Rachael Rollins will officially become the first Black woman to serve as US Attorney for Massachusetts. It comes after a fiery confirmation process and a roll call vote today — the first time that's happened since 1975. We discuss with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's legal analyst.

Investors are still speculating about exactly what Didi Global, a ride-hailing giant, did to draw the ire of Chinese regulators. Some say it foolishly pushed forward with its $4.4bn initial public offering (ipo) in New York despite being told by officials to delay the listing. Others suggest it stole the thunder from leaders in Beijing by kicking off trading on June 30th, the eve of the 100th anniversary of China’s Communist Party. Whatever its sin, Didi now says it plans to delist from New York and relist in Hong Kong. ... Many have held out hope of an eventual agreement between American and Chinese regulators that would revive a once-booming cross-border listing business. However, the suggestion that Chinese regulators are behind Didi’s delisting—an unprecedented intervention by a foreign government in the American market—makes a deal much more difficult to strike, says Jesse Fried of Harvard Law School.

A bipartisan commission tasked by the White House with exploring possible Supreme Court reforms voted unanimously Tuesday to submit the group’s final report to President Biden. The 34-member group sounded a neutral tone across its report's nearly 300 pages, referencing “profound disagreement” over a controversial proposal to expand the number of justices, for instance, while declining to adopt a position. Instead, the study traces the history of the court reform debate and delineates arguments for and against various proposals, occasionally noting areas of bipartisan support, as in the case of imposing term limits on the justices.  ... Some of the commission’s more progressive members made clear Tuesday that their votes in favor of the group’s findings should not be misinterpreted as an endorsement of the high court’s status quo. “In voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy,” said Harvard law professor Laurence Tribe. “I no longer have that confidence.”

The bipartisan commission appointed by President Biden to study possible changes to the federal judiciary unanimously approved a final report on Tuesday that flagged “profound disagreement” among its members over the issue that led to the panel’s creation: calls to expand or “pack” the Supreme Court with additional justices. By a vote of 34 to 0, the commission approved a 288-page report that offered a critical appraisal of arguments for and against that and many other ideas for changes to the Supreme Court, including imposing 18-year term limits on justices and reducing their power to strike down acts of Congress. ... Another former federal judge, Nancy Gertner, who is now a Harvard Law School professor, also praised the report, even as she argued for expanding the number of justices. She said that the Supreme Court’s legitimacy had been undermined by Republican efforts to “manipulate its membership,” and that its majority was enabling rollbacks of voting rights that otherwise would lead the court’s composition to evolve in response to the results of free and fair elections. “This is a uniquely perilous moment that requires a unique response,” she said, adding, “Whatever the costs of expansion in the short term, I believe, will be more than counterbalanced by the real benefits to judicial independence and to our democracy.”

Nobel-winning behavioral economist and author of ‘Thinking, Fast and Slow’ shares advice on how to influence others.

A bipartisan commission appointed by President Biden unanimously adopted a report detailing controversies over the Supreme Court and assessing proposals to address them, but few expected the 294-page document to resolve political divisions concerning the judiciary that have intensified in recent years. At Tuesday’s meeting, members of the commission universally praised the report-writing process for its civil dialogue and regard for all views. However, the final report was neither designed to nor did it produce consensus or any recommendations. ... “The report is so measured in tone that it would make an excellent basis for classroom discussion, which is a mixed compliment,” said University of Texas law professor Sanford Levinson. “Its obvious concern with being relatively impartial means that it is unlikely to generate any genuine political movement.” ... “There has never been so comprehensive and careful a study of ways to reform the Supreme Court; the history and legality of various reforms; and the pluses and minuses of each,” said a liberal commissioner, Harvard law professor Laurence Tribe. “But in voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy. I no longer have that confidence,” he said, citing “the dubious way some justices got there” and “the anti-democratic, anti-egalitarian direction of its decisions about matters like voting rights, gerrymandering, and the corrupting effects of dark money,” all areas where conservative views prevailed. Mr. Tribe said the process had persuaded him to endorse expanding the court, a position he previously had viewed skeptically.

A bipartisan panel of legal scholars examining possible changes to the Supreme Court voted unanimously Tuesday to submit to President Biden its final report, which describes public support for imposing term limits but “profound disagreement” about adding justices. Biden assembled the commission in response to demands from Democrats to restore what they called ideological “balance” on the court, now with three liberals and six conservatives, including three justices picked by President Donald Trump. In advance of the 34 to 0 vote, commissioners from across the political spectrum aired their differences about specific proposals for overhauling the court even as they praised the collegial process of assembling the nearly 300-page document. “I’m more convinced than ever that change is necessary,” said retired federal judge Nancy Gertner, a nominee of President Bill Clinton. “The court has been effectively packed by one party and will remain packed for years to come with serious consequences to democracy. Constitutional law expert Laurence Tribe said he had come to embrace the idea of expanding the bench because “all is not well with the court,” which he asserted, “no longer deserves the nation’s confidence.” “Even if expanding it would momentarily shake its authority,” Tribe said, “that risk is worth taking.”

An op-ed by Ashley Nunes: Americans fretting over gas prices could soon be in for relief. OPEC+ — a cartel of countries that controls some 80 per cent of proven oil reserves — last week hiked global production by an extra 400,000 barrels a day. Over a year, that’s enough to fill a large football stadium 53 times over. The result of boosting production? A drop in oil price. And when prices drop, if gas prices follow, consumers are happy. There is an alternative to relying on Saudi Arabia’s generosity: Going electric. When compared with gas guzzlers, electric vehicles (EVs) need less energy to move, which means more miles travelled per dollar spent. Electricity is also cheaper than gas, which delivers further savings. Hence, the White House’s penchant for all things electric. In a recent interview, Transportation Secretary Pete Buttigieg stressed that families who buy EVs would, “never have to worry about gas prices again.” Perhaps. The ebb and flow of global oil production — and the ensuing impact on gas prices — admittedly matters little to EV users. Why should it? Foregoing gasoline affords the luxury of being unfazed by gasoline prices. In this regard, the Secretary isn’t wrong to tout EVs’ savings advantage. But his laser sharp focus on one type of saving should also be called out for what it truly is: a fiscal shell game that conveniently embraces one set of truths, while downplaying others.

IN 2018, law enforcement officers were investigating five armed robberies and a sixth attempt in Dorchester, Mattapan, and Canton, one of which led to a fatal shooting. The police believed the same perpetrator, with a getaway driver, committed all the robberies, but they didn’t have a suspect. So they obtained search warrants for cell phone data from the towers closest to the robberies, on a suspicion that the same cell phone would have been in the vicinity of each robbery.  Through these warrants, the police obtained information about 50,951 unique phone numbers. They used the data to identify Jerron Perry and Gregory Simmons as suspects. After obtaining additional warrants to search the men’s phones, homes, and cars, both were arrested. ... “This is not a technology that provides more accurate information, this is a technology that simply provides more information,” said Mason Kortz, an attorney at Harvard Law School’s cyberlaw clinic, who filed a brief for the Surveillance Technology Oversight Project arguing that tower dumps are unconstitutional. “At best, it’s going to suffer from the same problems as existing sorts of location surveillance and, at worst, it’s going to be less reliable because it’s not individualized.”

A White House Commission studying changes to the U.S. Supreme Court voted unanimously to send its report to President Joe Biden after sidestepping the most controversial proposals to expand the court’s membership or limit the justices’ terms. Members, who voted 34-0 Tuesday, emphasized that their approval of the final report doesn’t signal support for all the proposals examined by the panel. ... Some may be disappointed that the report doesn’t make specific recommendations, said former U.S. District Court Judge Nancy Gertner, who said she supports changes to the court. “But that was not our charge,” Gertner said. Instead, “the tasks set before us was to capture that deep, live, and consequential debate, fully and fairly, without short changing either side,” said Harvard Law School Professor Andrew Manuel Crespo. ... The commission concluded that the least controversial changes, like term limits, were the hardest to enact, said Harvard Law School Professor Larry Tribe. And the most controversial—expanding the number of justices—the easiest to do, he added.

An op-ed by Amy B. Frieder '22, who was a candidate for the Maryland House of Delegates during the 2018 election cycle and during a vacancy-filling appointment process in 2021: Maryland is one of several states without special elections for filling state legislative vacancies. It instead relies on political party insiders to nominate a candidate for the governor to appoint (i.e., rubber-stamp). In fact, Maryland is the only state with four-year State House terms other than North Dakota that relies on this political party insider appointment process. These political party insiders are organized in “central committees.” Over the past several years, they have quietly wielded so much power that more than 20 percent of Maryland state legislators were initially appointed rather than elected by the voters and have benefited from incumbency advantage ever since. Can you imagine the public pushback if 20 percent of our U.S. House of Representatives were appointed rather than elected?

Jerome “Jerry” Rappaport ’49 M.P.A. ’63, who as a 19-year-old Harvard Law student helped to launch the Harvard Law School Forum, a storied speaker series, and who more than seven decades later was the impetus behind the creation of another Harvard Law School initiative to promote rigorous discussion of government and social issues on campus, died on December 6. He was 94. “As a law student in 1946, Jerry Rappaport founded the Harvard Law School Forum, which has added energy and excitement to our community by inviting to our campus prominent people with big ideas and many perspectives from which to learn,” said John F. Manning ’85, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School.  “More recently, he and Phyllis Rappaport supported the establishment of the Rappaport Forum, which promotes and models vigorous and respectful discourse on the hardest questions facing this nation and our world. Jerry personified and supported the values that are necessary for great academic institutions to be places of learning and growth. A wise adviser to multiple deans, he will be sorely missed. Our thoughts are with Phyllis and the entire Rappaport family.”

An op-ed by Peter Keisler, Stuart Gerson, and Alan Raul, HLS lecturer on law: After the country voted in 2020 to elect his opponent, President Donald Trump attempted to overturn America’s centuries-long commitment to the constitutional transfer of power. Assisting him was White House chief of staff Mark Meadows, who was acting not in service of the duties of the president, but merely as a political operative for a defeated candidate unlawfully grasping for power. Now the House Jan. 6 committee is charged with investigating the ensuing attack that imperiled both our constitutional government and the lives of our legislators and others who served at the Capitol. It is no wonder that the committee has ordered Meadows to testify and supply documents — or that President Biden has declined to block Congress’s access by asserting executive privilege, the doctrine that allows a president to protect the confidentiality of certain official deliberations. ather than comply, Meadows and his lawyer have launched a public campaign arguing that Biden abandoned a long-held principle of executive privilege by declining to accede to Trump’s attempt to assert it. Meadows, they say, is stuck in the middle of a “separation of powers” dispute, unsure whether to obey Trump or a congressional subpoena with which the sitting president has agreed to comply. But Meadows and his counsel get just about everything wrong regarding the law and history they invoke.

When Los Angeles District Attorney George Gascón took office a year ago, he directed the county’s nearly 1,000 prosecutors to decline charges involving 13 categories of low-level misdemeanors, including driving on a suspended license, drug and paraphernalia possession, and public intoxication. The sweeping new policy called for misdemeanor charges only when there are extenuating circumstances, like repeat offenses. An LAist review of millions of criminal cases found that the reform, dubbed Special Directive 20-07, has led to a dramatic decline in the rate at which the DA charges misdemeanors. ... Progressive academics and community groups say the changes are necessary to address a bloated and unequal criminal justice system, and that low-level criminal charges affect thousands of Angelenos as well as their families and communities. "The record of the misdemeanor arrest can haunt a person for life,” said Harvard law professor Alexandra Natapoff, the author of the book "Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal." People accused of misdemeanors in California are typically arrested or given a citation. If found guilty, a defendant can face a sentence of up to one year in jail and a fine of $1,000. “It can ruin their credit, it can disable their ability to get a job, or a loan, or housing,” Natapoff said. “There’s a whole world of consequences that far outstrip the seriousness of the underlying offense.”

An article by Jeannie Suk Gersen: The legal landscape of the past weeks and months has prompted questions of which people and entities are legitimate interpreters and enforcers of the law and what happens when you take the law into your own hands. Mississippi and other states took the recent changes in personnel on the Supreme Court as an invitation to defy the Court’s constitutional rulings on abortion, and those states now seem likely to prevail. During oral arguments in Dobbs v. Jackson Women’s Health Organization, last Wednesday, the three liberal Justices often seemed to be delivering dirges, as though they had accepted a loss and were speaking for posterity. Mississippi’s ban on abortions after fifteen weeks of pregnancy, which boldly flouts the Court’s precedents setting the line at around twenty-four weeks, is likely to be upheld by the conservative Justices. The arguments offered scant reason for hope that Roe v. Wade will be reaffirmed; the newest conservative Justices, Brett Kavanaugh and Amy Coney Barrett, signalled no qualms about overruling Roe as wrongly decided, which would make a majority of at least five. At a time when the Court’s legitimacy appears extremely fragile, it is telling that the majority’s response to having the supremacy of the Court’s decisions defied seems to be acquiescence and approval.

An op-ed by Eli Nachmany '22: Republican Gov.-elect Glenn Youngkin’s resounding victory in deep-blue Virginia sent shockwaves through the national Democratic Party apparatus. Youngkin took down former Virginia Gov. Terry McAuliffe, a Democrat, in an election that pitted two fundamentally different views of education against one another. Given the obvious popularity of the Youngkin position on education – one that puts power back into the hands of parents – lawmakers at the federal level should reconsider a Trump-era education bill that did not make it through Congress during President Trump’s time in the White House: the Education Freedom Scholarships and Opportunity Act, or "EFS."

An op-ed by Ashley Nunes: A bumpy ride awaits Canadian travellers. On Tuesday, Ottawa unveiled new pandemic travel measures that are creating confusion for flyers. The move – spurred by the rise of the highly infectious Omicron variant – will require all incoming passengers from non-U.S. foreign destinations get another COVID-19 test when they land in Canada. The new testing requirement is in addition to the pre-departure test travellers must undergo before leaving for Canada. The move is being touted as necessary to keep Canadians safe. ... Look, I’m all for a science-based approach. Science should inform public policy and we need more scientists working in public policy. I’m also for packing an extra dose of patience. Enduring hardship well is a trait in short supply in public (and political) discourse, and society is poorer because of it. Unfortunately, Ottawa’s new pandemic travel measures aren’t particularly scientific, which has a knock-on effect on my patience. As I write this, I’m in Europe, and heading on a plane back to Canada tomorrow. Despite my best efforts to educate myself, I’m still confused about what to expect when I land.

China ride-hailing giant Didi Global’s shares plunged more than 22% in the US on Friday, losing about $8.4 billion in market value, to end a week in which the decoupling of the equity markets of the world’s two biggest economies gathered pace. The plunge followed Didi’s announcement that it planned to delist from the New York Stock Exchange less than six months after its bumper $4.4 billion IPO there.  Didi’s decision followed China’s swinging crackdown on tech companies amid its concerns that reams of customer data risked falling into foreign hands, and a US decision to boot 248 Chinese companies off its exchanges for failing to comply with auditing requirements. ... Previous delistings provide the best window on what the future may hold for investors – and it doesn’t look good. In late 2017, China-based and US-listed Qihoo 360 announced a deal to be taken private by a group of investors led by its CEO, Zhou Hongyi, who held a 61% majority stake in the company. The deal valued Qihoo at about $9.3 billion. It was then relisted on the Shanghai stock exchange, where its market cap soared to $56 billion. In a 2019 article published in the Harvard Law School Forum on Corporate Governance, Harvard Law School professor Jesse Fried and Burford Capital’s Matthew Schoenfeld assert that Qihoo’s CEO alone made $12 billion in the relisting exercise. ”Beijing may be deliberately tanking these companies’ shares to pave the way for Chinese investors to acquire interests at lower prices,” they said.

WASHINGTON — Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded. ... As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions. One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.