Media Mentions

Kyle Rittenhouse breaking down on the stand Wednesday is so far the most gripping part of his trial for killing two people and wounding a third during the violent protests last year in Kenosha. ... "It's usually enormously risky to put a defendant on the stand," said Judge Nancy Gertner of Harvard Law School. Now a retired federal judge Gertner at Harvard Law School told WISN 12 News the testimony was effective. "We're talking about visceral responses here, and since the legal standard is did he believe his life was in danger, in imminent danger of bodily harm and was it reasonable? His affect is important to that inquiry," Gertner said.

For anyone hoping that voting and elections post-2020 would become less polarized, the recent Take Back Virginia rally outside Richmond was not a good sign. ... But he also waited until after he had secured the Republican nomination for governor this year before he acknowledged that Biden was the legitimate winner of the 2020 election. "There's a reckoning that the Republican Party is going to have to come to terms with," said Guy-Uriel Charles, an election law expert at Harvard University. "It's going to have to figure out to what extent is it going to play with these types of insurrectionist, unserious, democracy-harming set of narratives."

Medical schools should beef up curriculums to include robust nutrition education to give physicians the tools to combat diet-related conditions that cost the federal government billions of dollars each year to treat, according to House Rules Chairman Jim McGovern. ... At the news briefing, several members of the Nutrition Education Working Group that includes experts in nutrition science, education and food policy said the limited focus on nutrition often leaves medical students and physicians feeling inadequately prepared. “So to my mind, it doesn’t make sense to invest federal money and training of physicians who are then not able to prevent or address the most costly illnesses we face,” said Emily M. Broad Leib, faculty director of the Food Law and Policy Clinic at Harvard Law School. Leib said the resolution is a prod that “does not mandate any changes to health care training. It really raises awareness and makes the statement that the lack of food and nutrition knowledge among health professionals is a matter of national concern.”

Navy veteran Rhett Chalk was rendered quadriplegic on Thanksgiving Day in 2003 after his knee — which he severely impaired while serving in Vietnam — gave out, causing him to suffer a life-changing spinal injury. ..."Our argument though is that the mechanical application of that requirement does injustices in cases such as Mr. Vilord's where he could not possibly have met the requirement," said Tyler Patrick, one of the student members of the Veterans Legal Clinic at Harvard Law School, which is representing him. "It's unconstitutional, not to mention nearly unjust, to deny him these benefits, these benefits that he is deserved after serving as his partner's caretaker for 18 years, on the basis that Florida prevented him from marrying until 2015." "We argue that because the VA in making this determination looks to Florida state law, a state law which was unconstitutional and unconstitutionally as ruled in Obergefell prevented Mr. Vilord and Mr. Chalk from marrying, VA can't then use that unconstitutional state law as the basis for its denial of his enhanced DIC benefits," Patrick continued. The VA did not immediately respond to a request for comment.

Harvard Law School has received a $10 million donation from the Brooks Institute for Animal Rights Law and Policy to endow its animal law program. The program, established in 2014, is being renamed the Brooks McCormick Jr. Animal Law & Policy Program in honor of the gift, Harvard said Wednesday. It offers courses, fellowships and a clinic where students work on animal law cases and policy.

Defense attorneys for Kyle Rittenhouse are planning to call several more witnesses on Thursday. Rittenhouse testified on Wednesday that he acted in self-defense when he killed two people and wounded another last year in Kenosha, Wisconsin. Here & Now's Jane Clayson talks with Harvard Law School professor and retired judge Nancy Gertner about the case.

Norm Eisen, former ethics czar and lawyer who helped Democrats during the first impeachment of Donald Trump, reassured those demanding accountability for corruption under former President Donald Trump in a new interview with Business Insider. ... Trump is facing tax charges from the Manhattan District Attorney's Office as well as possible voter fraud charges by Fulton County DA Fani Willis. After a 8 months in office, Garland hasn't made any public moves on anything involving the former president, his staff or corrupt cabinet officials who were never charged after investigations by the Office of Special Counsel. "Atlanta is moving faster than DC. Where oh where is Merrick Garland? The DOJ seems strangely AWOL," Harvard law professor Laurence Tribe asked in a tweet.

Constitutional Law Professor Laurence Tribe joins Lawrence O’Donnell to discuss the new ruling that Donald Trump must turn over records to the Jan. 6 committee and why he believes Merrick Garland “should have acted already” in the criminal contempt referral of Steve Bannon. ...Tribe: ...I was finishing reading the remarkably powerful opinion by Judge Chutkan. It`s a 39-page opinion dissecting closely all of the arguments that have made by Donald Trump`s lawyers claiming that even though he`s no longer the president, he has executive privilege to prevent the turning over of hundreds of government documents, presidential documents, presidential logs, information about what he knew and when he knew it from the concept that somehow he could prevent turning that over. She rejected that argument. We only have one president at a time and that president is not Donald Trump.

Christopher Rufo, a Manhattan Institute senior fellow and a self-identified brawler, takes full credit for turning critical race theory into a political wedge issue. ... Randall Kennedy, a law professor at Harvard, had a harder edge in his emailed reply to my inquiry: “Democratic candidates should deal seriously and forthrightly with the cultural issues that clearly concern many voters.” Learning, he continued, entails dialogue and pluralism and self-disciplined willingness to listen even to those with whom one may disagree strongly, which is why the far-flung efforts to erase or muzzle the 1619 Project, or critical race theory or other manifestations of anti-racist pedagogy must be rejected. Democrats should put themselves firmly on the side of open discussion, not compelled silence. Ultimately, Kennedy argued, Democrats need to articulate a complex set of principles: They should vocally eschew bad ideas such as the notion that there has been no substantial betterment in race relations over the past fifty years, or that George Washington, Thomas Jefferson, and Abraham Lincoln are unworthy of commemoration, or that Black people are incapable of being racist, or that speech that is allegedly racist ought to be banned. At the same time, they should vocally embrace what is difficult for any sensible person to deny: that racial injustice has been and remains a destructive force that must be overcome if we are to enjoy more fully the promising potential of our multiracial democracy.

Even the staunchest conservative on the Supreme Court was taken aback when the Texas solicitor general said outraged feelings would be suitable grounds to sue doctors and others who violate the state’s ban on abortion after six weeks of pregnancy. ... Lawsuits brought under Texas’s abortion law, really have nothing to do with tort law, said John Goldberg, a Harvard law professor and expert in tort law and theory. “Getting an abortion that’s legal under Roe v. Wade is not, in the eyes of the law, mistreating a third person who is upset by the fact that you’re getting an abortion,” he said. So why did the Texas solicitor general make the comparison? Goldberg said Stone was trying to use tort of outrage as an analogy to convince the Supreme Court that it can’t block these lawsuits because they are being brought by private individuals, who are suing on their own behalf, not by people who are acting in concert with the state. Stone didn’t respond to requests for comment.

A book review by Noah Feldman: Linda Greenhouse’s new book on the Supreme Court opens in October 2020, with the drama of Justice Amy Coney Barrett’s appointment by Donald Trump. By rights it should have started in 2009, when Barack Obama was president, Democrats controlled the Senate and Justice Ruth Bader Ginsburg was diagnosed with pancreatic cancer — her second cancer diagnosis in a decade. Ginsburg lived another 11 years, spectacularly beating the odds even after a third diagnosis in 2018. But in retrospect, nothing is clearer than that she should have resigned expeditiously after learning she had a cancer that has an average five-year survival rate of 10 percent.

Power producers challenging a PJM Interconnection regional market rule are setting up a legal fight that could affect the electricity mix across chunks of the Midwest and eastern U.S. ... But there are questions in energy circles about whether Phillips might have to recuse himself because his position as chairman of the Public Service Commission in Washington, D.C., meant he considered the sticky PJM capacity market issue. Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, said he doesn’t expect that to be an issue. “I say it’s low risk, because he didn’t work for the entity filing the proposal,” Peskoe said of the possibility of Phillips recusing himself.

An op-ed by Nancy Gertner and Dean Strang: A young man in Wisconsin, Kyle Rittenhouse, is on trial for shooting three men, killing two and injuring one, during protests in Kenosha following the police shooting of a Black man, Jacob Blake. Shortly before the trial began, the trial judge entered a conditional ruling that should concern everyone. It flouts common sense, is legally tenuous, and worse, conveys a troubling message: the defense may be allowed to refer to the three men who were shot as “rioters,” “arsonists” or “looters,” but the prosecution may not refer to the men as “victims” because that is a “loaded word.” True, juries decide who is, or is not, a victim in a legal sense. But American judges routinely allow prosecutors to describe people injured or killed as “victims” in jury arguments. Imagine a domestic violence trial in which the judge would allow the husband’s defense to refer to the wife as a “brawler” but not allow the prosecutor to describe her as a “victim.” We can’t.

An op-ed by Ashley Nunes: Quebec’s language quagmire has long been a sore spot for politicians. Last week, Air Canada chief executive officer Michael Rousseau got in on the action. He delivered a near 30-minute speech at the Chamber of Commerce of Metropolitan Montreal, during which he spoke in French for some 20 seconds. When later questioned about why – after 14 years in the province – his French language skills weren’t up to par, Mr. Rousseau responded, “I’ve been able to live in Montreal without speaking French, and I think that’s a testament to the city.” The outrage has been swift. Quebec Premier François Legault denounced Mr. Rousseau’s attitude as “insulting.” The province’s Minister Responsible for the French Language, Simon Jolin-Barrette, said that Mr. Rousseau showed “contempt for our language and our culture in Quebec” and subsequently opined that the CEO was “not worthy of his duties.” And then there’s Justin Trudeau. The Prime Minister called Mr. Rousseau’s position “an unacceptable situation,” adding that the Minister of Official Languages is “following up.”

On this Intersex Remembrance Day, it is time for the LGBTQ+ movement to finally join the fight for intersex rights. If you were to estimate the size of the intersex community based solely on the attention they receive, you may never guess that they make up nearly 2 percent of the population. ...Despite a long history of activism by intersex people and allies, and decades of controversy, these risky and nonconsensual procedures are still happening every day. This is why Harvard Law School’s LGBTQ+ Advocacy Clinic and interACT: Advocates for Intersex Youth, the nation’s largest intersex rights organization, have partnered to create an online toolkit to empower advocates by providing additional tools for effective legislative strategy in their states.

... Over three hours, lawyers representing abortion providers, the state of Texas, and the federal government volleyed with the nine justices over Texas’ Senate Bill 8, a law that effectively bans abortion after six weeks, before many people even know they are pregnant, with no exception for rape or incest. ...The “tort of outrage” is a real legal concept. In most states it’s known as “the intentional infliction of extreme emotional distress.” But legal experts familiar with the statute are skeptical of Stone’s argument. To satisfy the law, John Goldberg, a Harvard Law School professor and expert in tort law and theory, says that the behavior in question has to be not only both “extreme and outrageous,” but specifically “intended to cause severe emotional distress.” And, Goldberg adds, ”the intended victim” — the person suing under Texas’ law, in this scenario — “actually has to experience the severe distress.” There are two big problems with Stone’s logic, Goldberg explains. First, the Texas law is very clear that it doesn’t require an injury — anyone can sue under S.B. 8. But, he adds, if someone did sue for “outrage,” they would still have to prove that the person seeking the abortion caused them emotional distress “intentionally and through extreme and outrageous conduct.”

The clock is ticking on a three-year timeline for the forced delisting from US exchanges of 248 Chinese stocks that are defying auditing requirements. ... 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.

Just as it became clear that President Joe Biden could not get Congress to agree to a Clean Electricity Payment Program, the Supreme Court announced it would hear a case that could prove just as big a setback in his plans for climate action. The case brought by the coal industry and a coalition of red states resurrects an argument they have been making for years: that the U.S. Environmental Protection Agency can’t impose major changes on the nation’s energy system without explicit authority from Congress. ...“This is a one-two punch,” said Richard Lazarus, a professor at Harvard University who has argued numerous environmental law cases before the Supreme Court. “The timing was not good—to have the budgetary stuff not happen in Congress, and then for the court to basically say, ‘By the way, we may be willing now to slam the door on anything else you’re thinking about doing.'”

... In 2018, Mayor Martin J. Walsh — now President Biden's labor secretary — appointed Mr. Watson to lead the Boston Employment Commission, the body created to monitor compliance with the Boston Residents Jobs Policy. The policy mandates giving a minimum share of work to city residents, women and people of color on large private construction projects and those that are publicly funded. ... Mark Erlich, who retired in 2017 as executive secretary-treasurer of the New England Regional Council of Carpenters and is now a research fellow with the Labor and Worklife Program at Harvard Law School, argues that construction unions have become more welcoming to nonwhites in the last few decades. Mr. Erlich is one of the authors of a book addressing the history of racial exclusion in the building trades. He notes that the original Boston Residents Jobs Policy in 1983 came out of the fight by Black workers for jobs on building sites. But it had to include residents and women to gain white political support and overcome the opposition of union leadership. “There is a legacy of racism, which by no means has been eliminated,” Mr. Erlich said. “I respect folks in the community that complain that things are not changing fast enough. And they are not changing fast enough.” Still, he argues, unions realize that “they need to become less homogeneous and reflect the demographics of the city.”

In the final days of President Donald Trump's time in the White House, his lawyers told Education Secretary Betsy DeVos that is was illegal for her to broadly cancel federal student loans for 43 million Americans. Under President Joe Biden, uncertainty on the student-debt cancellation conversation persists. ... Others would disagree. Attorneys and legal experts at the Legal Services Center of Harvard Law School wrote to Massachusetts Sen. Elizabeth Warren last year that while the power to cancel student debt "rests in the first instance with Congress," the Education Secretary "has the authority to modify a loan to zero" under the HEA.

When the Supreme Court shot down a challenge to vaccine mandates this time last week, Justice Amy Coney Barrett included a rebuke to the perpetual use of the shadow docket and provided an explanation as to the court's apparent about-face in a challenge to a controversial abortion ban it had let take effect just two months prior.  ... The shadow docket’s criticism came to a peak after the court refused in a 5-4 midnight ruling to stop the country’s most restrictive abortion ban from going into effect. Nearly two months later, the court agreed to hear the case on an extremely expedited schedule. Barrett’s subsequent opinion in the vaccine mandate case could be an explanation for what happened with the abortion case.  “I think that she was burned … when they let the law go into effect … the reaction was how could you do something at this moment, in an emergency decision, and I think that that's what she's being responsive to,” said Nancy Gertner, a retired federal judge and senior lecturer on law at Harvard.