Media Mentions

An Israeli cabinet minister’s inability to access the COP26 climate summit in her wheelchair has fueled criticism that the conference is part of the problem on many of the inequalities it was meant to address. Karine Elharrar, Israel’s Energy Minister, uses a wheelchair due to muscular dystrophy and was unable to access an entrance at the summit Monday. “It’s sad that the United Nations, which promotes accessibility for people with disabilities, in 2021 doesn’t worry about accessibility at its own events,” Elharrar tweeted. ... “It’s of course unfortunate that [Elharrar] was left out… and it’s right that attention’s being paid to it, but what’s really more of an issue is the way people with disabilities have been left out of the climate change agenda and dialogue,” said Michael Stein, executive director of the Harvard Law School Project on Disability. “Although we’re all going to suffer, and do suffer, from climate change, right now and in the future, the mortality rate for people with disabilities from natural disasters is as high as four times that of non-disabled persons,” he added.

The New York Public Service Commission (NYPSC) is leading a protest asking federal regulators to reject a proposal that would give incumbent utilities a path to building certain transmission upgrades planned by third-party transmission developers. The state grid operator's right of first refusal (ROFR) proposal, which could give utilities a new income stream, would lead to unfair rate hikes, would fail to balance consumer and shareholder interests, and thwart the Federal Energy Regulatory Commission's efforts to inject competition into the transmission process, the NYPSC said in a Tuesday filing at the commission. ... Competition has generally worked well in New York for public policy transmission projects, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. ... "New York's policies are headed in the same direction, and they all point to a significant influx of clean energy over the next couple of decades," Peskoe said. "[The utilities] are trying to effectively tax clean energy policies by attempting to take a cut of the profits without any competition."

Lawmakers who want to make it easier for home cooks to sell foods like jam, bread, cookies and pickled vegetables said the state’s current system regulating these so-called “cottage foods” is overly burdensome for many would-be entrepreneurs. ... Regina Paparo of the Food Law and Policy Clinic at Harvard Law School told the committee that Cambridge, like Boston, began allowing the sale of cottage food this year, and Worcester has not created a permit process, amounting to an “effective ban” on products from home kitchens. “Many home cooks are from groups disproportionately affected by COVID-19, including women, people of color, immigrants and restaurant industry workers who have suffered high rates of unemployment,” she said. “This bill would contribute to the Commonwealth’s equitable recovery from the pandemic, providing unparalleled economic opportunity to start and run flexible, small businesses from home.”

An op-ed by Noah Feldman: Who created the Constitution we have today? As a law professor, I’ve always thought the best answer was “the framers”: James Madison, Alexander Hamilton and the other delegates who attended the Philadelphia convention in the summer of 1787. The Constitution they drafted has since been amended many times, of course, sometimes in profound ways. But the document, I’ve long reasoned, has also exhibited a fundamental continuity. We’ve always had one Constitution. I no longer think this conventional understanding is correct. Over the course of several years of research and writing, I’ve come to the conclusion that the true maker of the Constitution we have today is not one of the founders at all. It’s Abraham Lincoln.

Large companies’ awards of millions in executive bonuses on the eve of bankruptcy are drawing renewed congressional focus. Bankrupt companies need court approval to award executive bonuses. But there isn’t a similar restriction on pre-bankruptcy bonuses, a loophole that’s been increasingly used by some big-name companies, such as Hertz Global Holdings Inc. and Chesapeake Energy Corp. ... In the wake of public outcry over bonuses awarded to Enron Corp. and WorldCom senior managers, Congress in 2005 amended the bankruptcy code to require court permission before a bankrupt company could offer such compensation. “The amendment was an emotional response and never calibrated to deal with the real problem,” said Jared Ellias, a bankruptcy law professor at the University of California, Hastings and visiting professor at Harvard Law School.

An op-ed by Ashley Nunes, Labor and Worklife Program fellow: The Covid-19 pandemic has accelerated the adoption of cutting-edge technologies. From contactless cashiers to welding drones to “chow bots” — machines that serve up salads on demand — automation is fundamentally transforming, rather than merely touching, every aspect of daily life. This prospect may well please consumers. Forsaking human folly for algorithmic (and mechanistic) perfection means better, cheaper, and faster service. But what should workers — who once provided these services — expect? Can they also benefit from technological progress? If so, how?

The final proposal for Wisconsin’s next political maps from Democratic Gov. Tony Evers’ redistricting commission would narrow, but still maintain, Republican legislative and congressional majorities in the state. ... Ruth Greenwood, director of the Election Law Clinic at Harvard Law School, said she doesn’t believe the commission’s maps are fair for Democratic voters, adding that predicted efficiency gaps “show a large and durable skew in favor of Republican voters” for both the Assembly and Senate map proposals. PlanScore, a program that predicts precinct-level votes for districts based on past election results and U.S. Census data led by the Campaign Legal Center, a national nonprofit organization that advocates for nonpartisan maps, found that under the commission’s proposal Democratic candidates would take 35% of state Senate seats and 39% of Assembly seats with a near 50-50 Democratic and Republican vote share. Greenwood said this may be due to the commission’s prioritization of compactness over partisan fairness. Greenwood noted that the first priority Evers listed in his original executive order creating the commission was that maps shall, whenever possible, be “free from partisan bias and partisan advantage.” “That is not reflected in the resulting plans,” Greenwood said. Greenwood said last month Republicans’ proposal “essentially bakes in almost the same level of partisan advantage” as current districts.

Detroit could be the latest big city to decriminalize "magic mushrooms" and other psychedelics drugs as residents take to the polls Tuesday. Voters will be asked under proposal E: "Shall the voters of the City of Detroit adopt an ordinance to the 2019 Detroit City Code that would decriminalize to the fullest extent permitted under Michigan law the personal possession and therapeutic use of Entheogenic Plants by adults and make the personal possession and therapeutic use of Entheogenic Plants by adults the city's lowest law-enforcement priority?" ... Harvard Law School launched the Project on Psychedelics Law and Regulation this summer to examine the legal framework around psychedelic research. "Preliminary research suggests that psychedelics could hold major benefits for people experiencing trauma and post-traumatic stress disorder," Harvard Law professor Jeannie Suk Gersen said in a statement. "By analyzing social, legal, and political barriers to access in this context, we hope to advance the understanding of their potential impact as therapeutics."

The U.S. Supreme Court heard oral arguments on a sweeping new abortion law in Texas on Monday. The law, which went into effect in September, bans abortions after six weeks and relies on private-citizens-turned-bounty-hunters to enforce the law at $10,000 a head. The court’s decision not to block enforcement of the law before it went into effect places the legitimacy of the high court in question. ... However, this is not the first time, nor is it a rare moment when the judiciary stood against democracy and civil rights. ... “First, as a matter of historical practice, the court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth and status,” Nikolas Bowie, an assistant professor of law at Harvard Law School, testified to the Presidential Commission on the Supreme Court of the United States that was formed last spring. “Second, as a matter of political theory, the court’s exercise of judicial review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality.” Bowie noted that Alexis de Tocqueville identified jurists as the American aristocracy, a privileged class with lifetime tenure who, as “the priests of Egypt,” regarded themselves as “the sole interpreter of an occult science” of the Constitution. He also pointed out that the Supreme Court has consistently protected the wealthy, invalidated federal laws enacted to increase political equality and has shown deference to Congress when it passed laws that harmed “racial, religious or ideological minorities” such as Native Americans, Chinese immigrants, those who live in U.S. territories, Muslim refugees and others.

An op-ed by Noah Feldman: The University of Florida struck a blow against academic freedom last week by prohibiting three professors from testifying in a lawsuit claiming the state’s new election laws are discriminatory. But that doesn’t necessarily mean that the university’s action is a violation of the professors’ free speech rights. A court should find the decision unlawful, but might not. There’s a difference between academic freedom and free speech. As explained by former Yale Law School Dean Robert Post in a classic work, these two freedoms are based on different principles, and involve freedom from different kinds of constraints.

The panel of judges hearing a lawsuit from which all the judges on a circuit have recused themselves was revealed Monday, after the lawyers behind the case requested to know which judges would preside over the appeal. The full U.S. Court of Appeals for the Fourth Circuit is recused from the lawsuit filed by “Jane Roe,” a former federal public defender who is alleging harassment while in her job and mounting a challenge to the way the federal judiciary handles misconduct complaints. The complaint names the circuit, as well as its chief judge and judicial council. Federal public defenders fall under the scope of the federal judiciary. ... The Fourth Circuit typically does not reveal the panel of judges hearing a case until the morning of arguments. Cooper Strickland and Harvard Law professor Jeannie Suk Gersen, who are representing Roe in the case, on Oct. 29 filed a motion to publicly post the judges presiding in the case, noting that orders had been issued but it was unclear who was behind those orders.

Watch: On Monday's edition of CNN's “OutFront,” Harvard Law Professor Laurence Tribe weighed in on Supreme Court arguments over the Texas abortion ban.

In addition to the big, juicy turkey on the table, there’s also an elephant lurking in the room this Thanksgiving: the vaccination status of your guests. It’s a tricky thing to talk about. Do you ask your aunt if she received the Covid vaccine after she R.S.V.P.s? What if she says no? Do you endure another scaled-back celebration, like last year? Or should you serve up a bunch of precautions? ... Start by calling your unvaccinated family members and soliciting their ideas on how to gather safely, said Daniel L. Shapiro, an associate professor of psychology at Harvard Medical School and the author of “Negotiating the Nonnegotiable: How to Resolve Your Most Emotionally Charged Conflicts.” Ask: “What’s your advice on how we can make sure everyone feels safe and comfortable when we get together?” he suggested. Then come up with some ideas. Perhaps you suggest that there should be mandatory testing right before dinner, or that you should gather outside, near a patio heater.

The Supreme Court agreed on Friday to hear appeals from Republican-led states and coal companies asking it to limit the Environmental Protection Agency’s power to regulate carbon emissions under the Clean Air Act. “This is the equivalent of an earthquake around the country for those who care deeply about the climate issue,” said Richard J. Lazarus, a law professor at Harvard. The court’s decision to take the case came days before President Biden is to attend a global climate summit in Scotland where he seeks to reassure other nations that the United States will continue to pursue aggressive policies to combat global warming.

Book Review of Noah Feldman’s The Broken Constitution: Lincoln, Slavery, and the Refounding of America: Over the course of two days in February 1850, amid the debates in the U.S. Senate that would lead to the famous congressional compromise over slavery later that year, Jefferson Davis of Mississippi delivered a florid floor speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would take office as the president of the Confederate States of America.) A flood of antislavery fanaticism and sectional hatred, Davis declaimed, had opened a “moral crevasse” that endangered America’s very foundations. The framers, Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring “turgid waters through the broken Constitution.” Davis’s pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis’s nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was “the essence of anarchy.”

The Biden administration is calling on Congress to pass legislation that would strengthen government regulation of stablecoins, a form of cryptocurrency that has soared in popularity in the past year. In a 22-page report issued Monday, the Treasury Department and several other regulators said the legislation should require that stablecoin issuers become banks, which would potentially subject them to a wide range of rules, including those requiring that banks hold sufficient cash reserves and implement measures to prevent money laundering and other illicit activities. ... Until Congress acts, the working group said that the Financial Stability Oversight Council, a broader collection of financial regulators, could coordinate steps to protect investors and oversee stablecoin issuers’ reserves. “It would force them into the regulatory perimeter, which is the thing that most people think is appropriate,” said Howell Jackson, a financial regulatory expert at Harvard Law School.

Large companies’ awards of millions in executive bonuses on the eve of bankruptcy are drawing renewed congressional focus. Bankrupt companies need court approval to award executive bonuses. But there isn’t a similar restriction on pre-bankruptcy bonuses, a loophole that’s been increasingly used by some big-name companies, such as Hertz Global Holdings Inc. and Chesapeake Energy Corp. ... In the wake of public outcry over bonuses awarded to Enron Corp. and WorldCom senior managers, Congress in 2005 amended the bankruptcy code to require court permission before a bankrupt company could offer such compensation. “The amendment was an emotional response and never calibrated to deal with the real problem,” said Jared Ellias, a bankruptcy law professor at the University of California, Hastings and visiting professor at Harvard Law School.

Members of the Mt. Washington Commission met last week with a mediation team from Harvard to help the commission overcome disagreements that have held up a new master plan for the park. The Harvard Negotiation & Mediation Clinical Program team is made up of three third-year Harvard Law School graduate students and their supervisor, Clinical Law Professor Rachel Viscomi. The team actively engaged with Mt. Washington Commission members and others on Friday, Oct. 29, at an in-person meeting at the Peabody Lodge in Franconia Notch State Park.

Watch: The Supreme Court heard two challenges to Texas’ restrictive abortion law Monday. This was just the start to a contentious week for the justices, with arguments over New York’s gun rights law slated for Wednesday. Nancy Gertner, senior lecturer at Harvard Law and a member of President Biden's Supreme Court Commission and Renée Landers, Suffolk University constitutional law expert, joined Jim Braude on Greater Boston to discuss. ... Gertner looked ahead to the upcoming Mississippi case, a direct challenge to Roe v. Wade, which she called “dire” for abortion rights. “It’s unimaginable that their purpose was anything other than to carve up Roe v. Wade or to reverse it,” she said.

Elon Musk’s visions of the future all stem from the same place: the science-fiction he grew up on. To understand where Musk wants to take the rest of us — with his electric cars, his rockets to Mars, his meme stocks, and tunnels deep beneath the earth — Harvard professor and New Yorker writer Jill Lepore looks at those science fiction stories and helps us understand what he’s Musk missed about them. The Evening Rocket explores Musk’s strange new kind of extravagant, extreme capitalism — call it Muskism — where stock prices are driven by earnings, and also by fantasies.

Corporate America is making some gains in expanding its commitment to diversity. According to a new study from The Conference Board, 2021 marks the first time that a majority of S&P 500 companies—59%—have disclosed the racial makeup of their boards. The increased transparency is widely considered an important step in advancing equity and inclusion. ... Some have opposed the measures, including the two Republicans on the SEC. Commissioner Hester Peirce registered her opposition in a lengthy statement that, among other things, argued that the new requirements “encourage discrimination and effectively compel speech by both individuals and issues in a way that offends protected Constitutional interests.” Others, such as Harvard Professor Jesse Fried, refuted Nasdaq’s claims that diverse boards are linked to enhanced financial performance, arguing that they do not result in higher stock prices, “the outcome investors actually care about.”