Media Mentions

A column by Noah Feldman: As Republicans develop a strategy for the 2022 and 2024 elections, expect them to borrow at least one trick from the playbook that Glenn Youngkin used to win the 2021 Virginia governor’s race: tar Democrats with the brush of “critical race theory.” Almost no one can say exactly what CRT is, but that doesn’t seem to have mattered last month in the northern Virginia suburbs, where the Republican made inroads among Democrat-leaning voters. The attack on CRT is a proxy for a vulnerability that Republicans correctly see Democrats as having. The consciousness-raising of Black Lives Matter and a new focus on the legacy of slavery has left the party flailing. Democrats — and progressives and liberals more generally — find themselves without a coherent narrative about race in American history, or one that Americans of all races can embrace.

An op-ed by Nancy Gertner: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” That was the question Justice Sonia Sotomayor asked Wednesday as the US Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, after quoting the sponsors of the law, who said, “We’re doing it [passing this law] because we have new justices.” Dobbs challenges a Mississippi law that bans abortions after 15 weeks of pregnancy. Dobbs is not just about Mississippi; it has become synonymous with the question of whether Roe v. Wade, the watershed 1973 case that legalized abortion, will be overturned by the court. Fifteen justices since Roe v. Wade in 1972, 13 since the 1992 Planned Parenthood v. Casey case that reaffirmed Roe, have held that abortion may not be banned before fetal viability at 23 to 24 weeks. Justice Sandra Day O’Connor wrote in Casey: “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” Indeed, she added, since Roe an entire generation of American women had formed relationships and started — or decided not to start — families under the assumption they had this right. And, presaging Sotomayor, she added, “to overturn something so momentous would call into question the court’s own legitimacy.”

A high-stakes game of chicken between former Trump advisers and the House committee investigating the Jan. 6 insurrection could enter a new phase Saturday, when former Justice Department official Jeffrey Clark is expected to appear as ordered, but may invoke his Fifth Amendment right not to answer a broad swath of questions. ...Garland “clearly knew that many people he respects, including me, were growing impatient with what we saw as the glacial pace of the process leading to this indictment,” longtime Harvard law professor Lawrence Tribe, who taught the future judge and attorney general, wrote in an email. “But he no doubt also knew that a number of experienced former federal prosecutors kept insisting publicly that several weeks was to be expected in a case of this magnitude and sensitivity.”

The Biden administration on Thursday rejected demands for a binding international agreement banning or tightly regulating the use of so-called killer robots, autonomous weapons that campaigners fear will make war more deadly and entrench a global norm of “digital dehumanization.” ... Bonnie Docherty, senior arms researcher at Human Rights Watch, said Wednesday that “much opposition to killer robots reflects moral repulsion to the idea of machines making life-and-death decisions. “A new treaty would fill the gap in international treaty law and protect the principles of humanity and dictates of public conscience in the face of emerging weapons technology,” Docherty argued.

Few blockbuster public share sales have been as tortured as Didi Global’s. Within four days of raising $4.4bn in New York in June the Chinese ride-hailing group was hit with an investigation by the authorities in its home market and its mobile application was dropped from app stores in China, preventing new customers from using it. The firm’s share price remained above its initial public offering (ipo) price for just three trading days and has since fallen by more than 40%. Now the company, which was once valued at $70bn and backed by Japanese investment firm SoftBank, says it will delist from American exchanges altogether and relist in Hong Kong. ... Such action—an unprecedented intervention by a foreign government in the American market—would make an agreement between America and China far more difficult to strike, says Jesse Fried of Harvard Law School. “Didi’s exit will thus be a preview of what is to come,” he says.

Two women who were Georgia election workers in 2020 are suing the far-right conspiracy website Gateway Pundit for defamation, alleging that the site and its owners knowingly published false stories about them that instigated a relentless campaign of harassment and threats. ... During the 2016 campaign, Gateway Pundit was among the most frequently shared media sources on Twitter and Facebook among followers of Trump, far more than mainstream news outlets, according to a study led by Harvard law professor and internet scholar Yochai Benkler.

The immediate future of abortion rights in the United States might depend on whether Chief Justice John G. Roberts Jr.’s attempt at compromise Wednesday was dead on arrival or just an opening bid. ... Wednesday’s argument “created the remarkable impression of a court at risk of disintegration,” said Richard Lazarus, a Harvard Law School professor who studies the court. “The now outsize conservative majority knew they could safely cast a deaf ear to the concerns of other justices, including even the chief justice. And the resulting frustration of the three more liberal justices was palpable.”

Food businesses and nonprofit organizations recently released an open letter urging Congress to pass a bill intended to fight hunger by removing barriers to food donation. ... The open letter, which is signed by more than 25 groups including WW International, City Harvest, and the Harvard Law School Food Law and Policy Clinic, advocates for these protections to include businesses that are donating directly to recipients in need. Current protections only cover companies that donate to nonprofit organizations. “Promoting and enabling the donation of safe, surplus food is a highly effective and simple tool to curb food waste, reduce greenhouse gas emissions, and address food insecurity,” Emily Broad Leib, Director for the Harvard Law School Food Law and Policy Clinic tells Food Tank. “Yet, our current laws fall short of really encouraging businesses to donate food instead of tossing it into landfill.”

The Supreme Court heard arguments Wednesday in a challenge to Mississippi’s law that bans abortion after the 15th week of pregnancy. It’s the most significant abortion case in years and a direct challenge to Roe v. Wade. Plus, Stacey Abrams announces a run for Georgia governor in 2022. And, putting high gas prices in perspective. Guests: Harvard University constitutional law professor Noah Feldman and Axios' Emma Hurt and Ben Geman.

When the U.S. Supreme Court decided an important voting rights case earlier this year, its ruling made it more difficult for voters to challenge restrictive state voting laws.  Now, the state of Texas is making an argument that, if adopted, would further hobble use of what remains of the Voting Rights Act. ...In a one-paragraph concurring opinion in Brnovich v. Democratic National Committee, the voting rights case decided last summer, Supreme Court Justice Neil Gorsuch said the court’s previous cases assumed that private parties had the right to bring lawsuits challenging state election laws under Section 2 of the VRA, but it was an “open question” the Supreme Court had not yet decided. Justice Clarence Thomas was the only other member to sign on to Gorsuch’s concurrence.  “If it hadn’t been for the Gorsuch line in Brnovich, I would have thought it was kind of a crazy argument,” said Ruth Greenwood, director of the Election Law Clinic at Harvard Law School, of the Texas brief.

By now, it’s clear that Beijing is greatly discouraging, if not completely forbidding, listings of Chinese tech companies in the U.S. What’s unclear is what Beijing will do with existing Chinese ADRs, an overwhelming majority of which used variable-interest entities to circumvent Chinese laws to get listed. ...The fate of VIEs isn’t the only concern for Chinese ADRs. Under a law (HFCA) passed under the Trump administration in December, Chinese companies may face delisting if they refuse to hand over financial information to American regulators, a demand that Beijing has refused so far. “Unless something unexpected happens, the Chinese ADR market should be eliminated within three years because of HFCA,” said Jesse Fried, professor at Harvard Law School. “Even absent the HFCA, China might have prevented companies from listing in the U.S. to build up its own markets and have greater control over the companies. But the U.S. government seems to be doing China’s work for it.”

Laurence Tribe tells Lawrence O’Donnell that he anticipates the Supreme Court will gut the fundamental right to abortion established in Roe v. Wade after hearing arguments on Mississippi’s abortion ban and warns the legitimacy of the court and the rule of law are at risk given the conservative justices’ willingness to “reverse the trend of expanding rights” for the first time in our nation’s history.

A column by Noah Feldman: Chief Justice John Roberts is searching for a compromise to preserve some basic right to abortion while moving it earlier in pregnancy, perhaps as early as 15 weeks. But based on today’s oral argument, it seems unlikely that any of the other justices is interested. Justice Brett Kavanaugh, in particular, seemed to telegraph a willingness to overturn Roe v. Wade altogether.

It was supposed to be the beginning of a new era for Black farmers. After the 2020 election, the Biden administration and a new Democratic majority in Congress promised to rectify the results of years of discrimination and systemic racism, and incoming Secretary of Agriculture Tom Vilsack and House Agriculture Committee Chair David Scott identified justice for Black farmers as a top priority. But their biggest push to correct historic wrongs—$4 billion in direct debt relief payments authorized in the American Rescue Plan—was stymied by lawsuits from white farmers before any checks were cut. ... On November 19, the House narrowly passed the Build Back Better Act, but it is unclear whether Democratic lawmakers will get it through the Senate and how it might be reshaped in the process. If it does make it to the president’s desk, said Dania Davy, director of land retention and advocacy at the Federation, she’s concerned that the new debt relief program will replace—instead of supplement—the more targeted help for Black farmers. ... During a discussion on debt cancellation hosted by the Food Law and Policy Clinic at Harvard Law School this week, multiple panelists echoed that point. “You can’t effectively address racial discrimination without using racial language,” said Keisha Stokes-Hough, a senior supervising attorney at the Southern Poverty Law Center. But as a result of the lawsuits, advocates have no choice but to try.

What do the results of these three different cases say about the American criminal justice system and the country's so-called “racial reckoning”? Ron Sullivan, Harvard Law professor and director of the Criminal Justice Institute at Harvard and Renée Graham, Boston Globe columnist and associate editor, joined Jim Braude on Greater Boston to discuss.

Mississippi on Wednesday is challenging Roe v. Wade, the law of the land for nearly 50 years. Nine Supreme Court justices will hear arguments on whether to preserve or undo abortion rights, but, experts say, Americans should pay close attention to two members of the court: Justices Brett Kavanaugh and Amy Coney Barrett. Legal scholars anticipate that either one of them could have an outsize impact in the case of Dobbs v. Jackson Women's Health Organization and determine the fate of reproductive rights in the United States. ... "It's very clear where Justice Kagan, Justice Sotomayor, and Justice Breyer are," I. Glenn Cohen, a professor at Harvard Law School, told Insider. "They are going to vote to strike down the Mississippi law as unconstitutional … They don't want to reverse Roe v. Wade. This has been consistent in their jurisprudence." ... "Justice Thomas and Justice Alito are pretty clear from their prior votes that they are on the side of thinking that the right to abortion in the Constitution is wrong. It doesn't exist," Cohen said. "So their votes are pretty set."

Vice President Kamala Harris cast the tie-breaking vote in October to confirm Catherine Lhamon to lead the Department of Education's Office for Civil Rights (OCR). When Lhamon held the same position under the Obama administration, her office enforced Title IX—the federal statute prohibiting sex-based discrimination in education—in a manner that endangered fundamental free speech and due process rights. ... Last year, the Department of Education enacted new, balanced regulations that protect the rights of all students, consistent with many judicial rulings. ... Prominent feminist legal scholars, including Harvard Law professors Jeannie Suk Gersen and Janet Halley, as well as the University of San Francisco Law School's Lara Bazelon, heralded the regulations for their overall fairness and for rectifying injustices in OCR's prior policies.

On Juneteenth By Annette Gordon-Reed. This book weaves together history and memoir into a short volume that is insightful, touching and courageous. Exploring the racial and social complexities of Texas, her home state, Gordon-Reed asks readers to step back from the current heated debates and take a more nuanced look at history and the surprises it can offer. Such a perspective comes easy to her because she was a part of history — the first Black child to integrate her East Texas school. On several occasions, she found herself shunned by whites and Blacks alike, learning at an early age that breaking the color line can be threatening to both races.

An op-ed by Charles Fried: In 1989 I argued before the U.S. Supreme Court in Webster v. Reproductive Health Services, a case challenging a Missouri statute that forbade the use of any state funds or facilities for the conducting of abortions. On behalf of the United States I argued that Roe should be overruled, except in extreme cases such as when the life or health of the pregnant woman was at risk. I made these points in good conscience, drawing on a mix of history, precedent and what I saw as the interests of the rule of law. I was a law clerk to Justice John Marshall Harlan II in 1961 when he dissented in Poe v. Ullman, a case involving the liberty of married couples to use contraceptives without interference or inquiry by the government, and provided what I then considered — and still do — the foundation of the law of privacy and personal dignity.

Twitter Inc. on Monday became the latest Silicon Valley titan to appoint an Indian-born chief executive officer, joining the likes of Microsoft and Google in recognizing the Asian country as one of the world’s richest pools of tech talent. ...“Being an Indian is a big advantage now, people expect us to be good engineers and good managers,” said Vivek Wadhwa, a Distinguished Fellow at Harvard Law School and the author of a book profiling Nadella’s rise at Microsoft. “From what I know, Parag Agrawal shares Satya’s values and has a similar management style.”

Last Tuesday, a pharmaceutical company traded on the New York Stock Exchange announced a grant to Manhattan’s prestigious Lenox Hill Hospital to launch a new psychotherapy treatment clinic focused on serving marginalized and underserved communities. ... Apart from FDA-approved medications, which present the prospect of a multibillion-dollar industry by the end of the this decade, Oregon is poised to become the first state to open recreational markets in 2022 for mushrooms containing psilocybin. “People are starting to figure out what they need to do to go to Oregon and set up shop,” said Mason Marks, an attorney with Harris Bricken in Portland who also leads the Project on Psychedelics Law and Regulation at Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.