Media Mentions

Happy the elephant will get her day in court, and potentially open the door for other animals to follow, with the help of high-profile advocates who contend the lumbering zoo resident deserves a fundamental legal right. In a potentially groundbreaking case, famed Harvard Law School professor Laurence Tribe has joined philosophers, theologians and a menagerie of others in arguing that Happy is a “legal person” with the corresponding right to seek freedom from what Tribe calls “her imprisonment” by the Bronx Zoo. “Now fifty years old, Happy remains in solitary confinement, unable to lead a physically, intellectually, emotionally and socially complex life despite her capacity to do so,” Tribe and several other prominent law professors wrote in a legal brief filed late last month. Tribe’s amicus brief is the latest of many to be filed with the New York state Court of Appeals, which sometime next year will hear the Nonhuman Rights Project argue that Happy, just like a person, enjoys habeas corpus protections (Greenwire, Dec. 18, 2020).

The U.S. Supreme Court should reverse an Eighth Circuit decision finding that a law firm's day-late levy challenge was barred by a tax code deadline, tax clinics and professors told the justices Monday, arguing the finding contravenes congressional intent. ... In its brief, the Tax Clinic at the Legal Services Center of Harvard Law School rejected arguments from the government saying the deadline under Section 6330 is not subject to equitable tolling, or time extensions in certain circumstances. ... T. Keith Fogg, who filed the brief for Harvard's tax clinic, told Law360 on Monday that equitable tolling is an "issue that particularly impacts low income taxpayers who must navigate the filing rules without legal assistance."

Inspired by family, Samantha Maltais, the first Wampanoag to attend Harvard Law School, plans a future focused on Indigenous rights and environmental justice.

Ketanji Brown Jackson, seen by Democrats as a top contender for a future Supreme Court vacancy, is one of three judges assigned the weighty task of reviewing former President Trump's bid to block a congressional subpoena for records related to the Jan. 6 attack. ... Still, if Jackson votes against Trump in the pending case, they said, it’s a near certainty that Republicans would use it against her if she is eventually tapped for the high court. “The chance is 100 percent that Republicans will use her vote against her,” said Mark Tushnet, a law professor at Harvard. “The only interesting question is how they would spin a vote for Trump against her — probably to say that it shows that she casts her votes with an eye to how it's going to benefit her.”

Adira Levine ’22, a third-year Harvard Law School student, was recently recognized by the American Bar Association’s Section of Administrative Law and Regulatory Practice for her essay on the intersection of the Freedom of Information Act (FOIA) and environmental law. Levine’s paper, “FOIA Disclosure and the Supreme Court,” received the 2021 Gellhorn-Sargentich Law Student Essay Award, which was announced at the organization’s Administrative Law Conference on November 18. “It was such an honor to receive this award, and to be asked to speak about my work with the section’s audience,” said Levine, who delivered remarks on her work and its findings at the conference. “I was inspired to write the paper during a spring 2021 seminar with Professor Richard Lazarus ’79, called Environmental Law and the Supreme Court. I was particularly interested in writing on a topic related to administrative law, and found the recent FOIA cases to be a perfect opportunity.”

The Department of Justice announced this week that it would crack down on airline passengers who throw tantrums. Now, if Attorney General Merrick Garland would only get around to doing something about people who plot the overthrow of our government and a former president who’s serially obstructed justice and abused power we might be getting someplace. ... Revered legal scholar, Laurence Tribe, who taught Garland when the attorney general was a student at Harvard Law School, suggests we give his former student a little more time, but not an unlimited amount. He hears the clock ticking too. Tribe told me, “If Merrick Garland hadn’t authorized the Bannon indictment when he did, I’d certainly have gotten mad long since. At least with respect to someone like me, he bought a few weeks with that indictment—but not a few months.” “All things considered,” he continued, “I’ll be both disappointed and angry if we find ourselves going into January 2022 without strong evidence—in a town that leaks like a sieve—that DOJ is moving full speed ahead on holding Trump and his enablers, facilitators, funders and co-conspirators criminally accountable for the coup d’état they tried to pull off and the violent insurrection they mounted against the Capitol to delay, obstruct and, if possible, subvert the solemn electoral proceeding there underway.”

When state legislators passed a criminal justice reform bill in 2018, Massachusetts residents won the ability to clear away certain criminal records — including convictions for marijuana possession and other now-legal activities — that can make it difficult to land a job, rent an apartment, and otherwise move on with life. ... “Our expungement statute has been an utter failure,” said Katy Naples-Mitchell, an attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice who specializes in criminal justice policies. “We could be helping people on a much grander scale, but instead we’re seeing this paltry, piecemeal effort — and even that has been almost totally frustrated, in part by a bench that is often a lot less progressive than the legislation it’s charged with carrying out.”

... Yet this game plan is still rare: Reichheld cites a recent Bain & Company survey: “Only 10% of business leaders believe that the primary purpose of their firm is to maximize value for customers. Many companies still operate in the old-school financial capitalist mindset in which maximizing shareholder value is front and center.” ...According to studies made by Harvard Law Professor Lucian Bebchuk and his colleagues, there is no evidence that the firms in question have made any change in their actions since the 2019 declaration. Bebchuk concludes that the 2019 BRT declaration was “only for show.” In effect, we are dealing with a smokescreen: the goal of many major corporations has become undiscussable.

...A six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests. ... But even the more patient justices — Roberts, sometimes Kavanaugh, and, at least judging from her first year, Barrett — are no moderates. All three, for instance, joined a particularly radical Alito opinion last term that neutered the remaining major enforcement mechanism in the Voting Rights Act of 1965. “I dislike the fact that journalists refer to the six as conservative,” said Harvard Law School professor Charles Fried, who served as solicitor general under Reagan. “They’re not. They’re reactionaries. That’s the only correct term for them.”

Aircraft pioneers Wilbur and Orville Wright had to resort to a coin toss to decide who would attempt the first powered flight, but almost all modern aviation relies on at least two pilots in the cockpit. That could soon change, as airlines and planemakers develop new technology that would rely to a greater extent on automation and eliminate the need for a co-pilot. ... Whether passengers will be willing to use a single-pilot plane depends largely on cost, according to Ashley Nunes, a research fellow at Harvard Law School.“For the average consumer, cash is king. If the price is low enough, you’re going to catch that flight,” he said. “The saga with the Boeing 737 MAX is a great example of this; in the aftermath of that particular event, large groups of consumers said, ‘We’re not going to fly that plane.’ And guess what? They’re flying it today.” But reducing the number of pilots on board may not in fact drive down airlines' costs and allow them to offer cheaper flights, Nunes warned: “There are numerous industries where you remove the human, your costs actually increase because of the amount of safety oversight that is required for the technology."

Op-ed by Terri Gerstein, Director, State and Local Enforcement Project: One of the most interesting union campaigns in recent years is happening right now in Buffalo, New York. Workers in three Starbucks outlets started a union organizing effort over their concerns about seniority pay, scheduling, staffing levels, and safety and health during COVID (plus, at one store an infestation of bees was left festering for months). Earlier this month, the National Labor Relations Board mailed ballots to the workers in these stores, who will have four weeks to vote on whether to unionize with Workers United, an affiliate of the Service Employees International Union. If they do, these stores would be the first unionized locations among the ubiquitous chain’s thousands of U.S. locations.

Incoming mayor Eric Adams sought to distance himself Monday from a Brooklyn for-profit college president who was recently reinstated despite allegations of serial sexual misconduct as Gov. Hochul vowed an investigation into the “deeply disturbing situation.” An Adams spokesman promised to look into returning $4,000 in campaign contributions from ASA College president Alex Shchegol and his wife following a Daily News expose. At least 10 women have accused Shchegol of sexual misconduct... The News reported exclusively Saturday that Shchegol — forced out by the college’s board in 2018 when the misconduct allegations surfaced — is back in charge after using his power as owner to fire board members who opposed his reinstatement. ... Higher education experts warned that accreditors often move slowly and don’t have law enforcement power to compel colleges to produce or preserve documents. “Accreditors are notorious for never cutting anyone off,” said Eileen Connor, the director of the Predatory Lending Project at Harvard Law School.

Sidley Austin, taking a page from other professional service industries, recently announced that it is doling out new titles to associates based on seniority as a way to better reflect “where” associates are in their career. With indicators showing the the track to partnership only lengthening, is there value in providing more waypoints toward the coveted counsel or partnership promotion? “There is a long gap between associate and partner, so in some ways it makes sense to create and acknowledge with titles different levels of role. That can help with retention, assuming that the titles are meaningful,” Harvard Law professor Scott Westfahl said.

The first time the Harvard law professor Lawrence Lessig told computer scientists they were the unwitting regulators of the digital age — about 20 years ago — he made a coder cry. “I am not a politician. I’m a programmer,” Mr. Lessig recalls her protesting, horrified by the idea. Now, the notion that “code is law”— from Mr. Lessig’s 1999 book “Code and Other Laws of Cyberspace” — does not shock young engineers or lawyers, the professor says. To digital natives it is “obvious” that technology dictates behavior with rules that are not value neutral.

Friday afternoon, the jury in the trial of Kyle Rittenhouse came back to deliver the final verdict, not guilty. WORT Assistant News Director Nate Wegehaupt is joined by Harvard Law Professor Ron Sullivan to discuss the verdict, and the parallels to other cases here in Wisconsin.

Say It Loud!: On Race, Law, History, and Culture By Randall Kennedy, Michael R. Klein Professor of Law: This collection of essays offers a full portrait of Kennedy’s thinking as a law professor and public intellectual, demonstrating his commitment to reflection over partisanship, thinking over feeling.

Podcast featuring Jeannie Suk Gersen, John H. Watson, Jr. Professor of Law: Will the Supreme Court Overturn Roe v. Wade? Critical cases on abortion rights are being heard by a 6–3 majority of conservative Justices. The decisions will have repercussions for everyone of childbearing age.

On Juneteenth, By Annette Gordon-Reed, Carl M. Loeb University Professor: In a book that is part memoir, part history, Gordon-Reed (who won a Pulitzer Prize in 2009 for “The Hemingses of Monticello”) recounts her continuing affection for her home state of Texas, despite its reputation for violence and racism, writing that “the things that happened there couldn’t have happened in other places.”

An op-ed by Ronald S. Sullivan, Jesse Climenko Clinical Professor of Law: In a two-week trial that reignited debate over self-defense laws across the nation, a Wisconsin jury acquitted Kyle Rittenhouse for shooting three people, two fatally, during a racial justice protest in Kenosha. ... As a professor of criminal law, I teach my students that the law of self-defense in America proceeds from an important concept: Human life is sacred, and the law will justify the taking of human life only in narrowly defined circumstances. The law of self-defense holds that a person who is not the aggressor is justified in using deadly force against an adversary when he reasonably believes that he is in imminent danger of death or serious bodily injury. This is the standard that every state uses to define self-defense.

Book review by Kenneth W. Mack, Lawrence D. Biele Professor of Law: The civil rights activist and leader Fannie Lou Hamer spoke truth to power with an authenticity that makes her words, her actions and even her singing seem to have immediate appeal to us. In 1962, Hamer was a Mississippi sharecropper with little formal schooling when she decided to attend a voting rights organizing meeting at a local church. Two years later, she was facing down President Lyndon Johnson and the national civil rights leadership at the Democratic National Convention. ... The historian Keisha N. Blain’s “Until I Am Free: Fannie Lou Hamer’s Enduring Message to America” employs “a blend of social commentary, biography, and intellectual history” to harness Hamer’s example for the present.

THE BROKEN CONSTITUTION: Lincoln, Slavery, and the Refounding of America, by Noah Feldman. (Farrar, Straus & Giroux, $30.) Abraham Lincoln, Feldman contends, embraced a new, “moral Constitution” by purging the country’s original sin of slavery and re-establishing the nation on a more noble foundation. A professor at Harvard Law School, Feldman is “a lucid, provocative stylist” as well as “a prolific scholar and commentator on current affairs … well equipped to assess Lincoln’s constitutional record,” Sean Wilentz writes in his review. “‘The Broken Constitution’ displays its author’s usual brilliance and boldness in his contrarianism, and a passionate engagement with the past.”