Media Mentions

In his latest book, “Say It Loud! On Race, Law, History, And Culture,” Harvard Law professor Randall Kennedy discusses everything from why he thinks Supreme Court Justice Clarence Thomas is a “sellout” to how the election of Donald Trump left his optimism for a racially equitable nation “profoundly shaken.” He joined Jim Braude on Greater Boston to discuss all that and more. Kennedy responded to a recent wave of Supreme Court justices lamenting the politicization of the Court. He called the claims “ridiculous.” “The Supreme Court is inevitably political,” he said. “Clearly it matters who these people are. Clearly our law is largely dependent on the personnel that make it to these seats on the Supreme Court of the United States.”

Former Education Secretary Betsy DeVos and the U.S. Department of Education urged the Ninth Circuit on Wednesday to quash her deposition subpoena in a lawsuit by student borrowers seeking forgiveness from "predatory" for-profit college loans, but panelists indicated they were struggling to see how the lower court "clearly erred" issuing it. ... The plaintiffs' attorney, Margaret E. O'Grady of the Project on Predatory Student Lending at the Legal Services Center at Harvard Law School, said she believes the student borrowers can get relief on the existing record, but said just because they have a strong case, they shouldn't be prevented from obtaining DeVos' deposition. “The law is clear that depositions of Cabinet secretaries are permissible, but reserved for extraordinary circumstances. And the court below found those rare, extraordinary circumstances present here,” O'Grady said.

On April 5, 2020, Christopher Charles Perez posted a message on Facebook about an H-E-B grocery store in San Antonio, federal prosecutors said. “My homeboys cousin has covid19 and has licked everything for past two days cause we paid him too,” Mr. Perez wrote. “YOU’VE BEEN WARNED.” The claim was not true, and the post came down after 16 minutes, according to court documents. ... This past June, Mr. Perez, 40, of San Antonio, was found guilty of disseminating false information and hoaxes related to biological weapons. On Monday, a federal judge sentenced him to 15 months in federal prison. ... Nancy Gertner, a retired federal judge in Boston, said that since federal sentencing guidelines went into effect in 1987, judges have sentenced defendants to prison time on charges that once led to probation. “I’m sure the judge was intending to send a message to people who would be involved in like hoaxes, which is important,” said Ms. Gertner, now a lecturer at Harvard Law School. “The question is whether he needed to impose a sentence of this length to send that message.”

New White House guidance on a landmark environmental law may ease uncertainty about the federal review process for energy projects, even as it leaves unanswered questions about legal cases and how agencies analyze climate and environmental justice, observers say. The Council on Environmental Quality announced a proposed rule to revise regulations for how federal agencies should implement reviews under the National Environmental Policy Act. The plan will affect the assessment of projects ranging from pipelines and compressor stations to oil and gas leases on public lands. ... Agencies have since been in a "holding pattern" as they have needed to move forward with permitting but were simultaneously waiting for the Biden administration to clarify its guidelines for how they should comply, said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental & Energy Law Program. Vizcarra said the lack of CEQ regulations had been creating “a lot of uncertainty for anyone coming before those agencies, as well as the agencies themselves, on how they are supposed to be operating, at a time when the administration is really pushing for a lot of action.”

An article by Bob Bauer and Jack Goldsmith: At the top of the list of those responsible for executive branch accountability in the 21st century are the statutory inspectors general that now populate every major executive branch agency. On Wednesday, Oct. 6, the Senate Committee on Homeland Security and Government Affairs will consider three bills—the Securing Inspector General Independence Act of 2021, the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act—that would expand the independence and power of inspectors general in important respects. This post reviews the central reforms, urges the passage of one of them, and assesses the others.

In the late nineteen-thirties, Gonzálo Segura, known to his friends as Tony, enrolled at Emory University to study biochemistry. He graduated in 1942, and subsequently took a job at Foster D. Snell, a New York-based engineering and chemical-consulting company that the United States Army hired to run radiation tests. Under strict secrecy, Segura tested which cleaning agents removed radiation most effectively from human hands. As his career in radiochemistry progressed, he kept quiet about his growing attraction to other men. “I learned very early in life, when I was a child really, that that and all sexuality were things to be kept to myself,” he told the historian Jonathan Ned Katz, in 1977. He’d always assumed that, by the time he entered his twenties, he would develop desires for women, then marry and have kids. ... In some states, when queer people were arrested on morals charges, “police departments would often notify bar associations or medical licensing boards or especially schools,” Anna Lvovsky, an assistant professor at Harvard Law School, told me. “The real shadow that hung over these arrests was the threat of collateral consequences such as the loss of employment.”

The Supreme Court is back on the bench this week for a new term. And it could be a momentous one — as the court is set to take up cases related to abortion, gun rights, and affirmative action. We speak with our legal analyst, retired federal judge and senior lecturer at Harvard Law School Nancy Gertner.

For a few hours inside the ransacked Capitol on January 6, then–Vice President Mike Pence helped to preserve the democratic order by insisting that he was powerless to change the outcome of the election. On January 6, 2025, that responsibility could fall to Vice President Kamala Harris, but the task of preventing a stolen presidential election won’t be that simple. ... Should Trump or his acolytes try to subvert the 2024 election, the last Democrat with any power to stop the steal—or at least try to—would be Harris. “She’s certainly going to have quite a job on her hands on January 6, 2025,” Laurence Tribe, a Harvard law professor and liberal constitutional scholar, told me. Nine months ago, Tribe and other Democrats praised Pence for interpreting his authority narrowly, but the next time around, they might ask Harris to wield the same gavel more forcefully.

The challenge in providing government assistance to ease the local news crisis is to find ways of helping those who really need it while keeping the bad actors out. Which is why Martha Minow said this week that she’s “hopeful” but “fearful” about a federal bill that would create tax credits to subsidize subscribers, advertisers and news organizations. “What I’m troubled about is: What’s local news, who defines it and how do we prevent the manipulation of this by multinational corporations?” she said. “That’s a problem, and I don’t know anyone who’s come up with an answer for that.”

James E. Bowers ’70 is one of six recipients of the 2021 Harvard Alumni Association Award, given each year to alumni who demonstrate exceptional service to Harvard University through leadership and engagement activities.

Facebook Inc blamed a "faulty configuration change " for a nearly six-hour outage on Monday that prevented the company's 3.5 billion users from accessing its social media and messaging services such as WhatsApp, Instagram and Messenger. The company in a late Monday blog post did not specify who executed the configuration change and whether it was planned. Several Facebook employees who declined to be named had told Reuters earlier that they believed that the outage was caused by an internal mistake in how internet traffic is routed to its systems. ... “Facebook basically locked its keys in its car,” tweeted Jonathan Zittrain, director of Harvard's Berkman Klein Center for Internet & Society.

A group of prominent lawyers, including former governors and judges, urged the California bar on Monday to launch an investigation into John C. Eastman’s role in advising President Trump on how he could overturn his election defeat, including by having his vice president refuse to count the electoral votes in seven states won by President Biden. ... The letter was sent to George S. Cardona, chief trial counsel at the Los Angeles office of the State Bar of California. The signers include former governors Christine Todd Whitman, a New Jersey Republican, and Steve Bullock, a Montana Democrat; retired California Supreme Court Justices Kathryn Werdegar and Joseph Grodin; retired California federal judges Thelton Henderson, Fern M. Smith and Lowell Jensen; and UC Berkeley Law Dean Erwin Chemerinsky and Harvard law professor Laurence Tribe.

Seattle’s city council voted unanimously to relax its rules against naturally occurring drugs, joining a handful of other cities that have decriminalized psilocybin and similar substances since Denver kicked off a wave of such changes three years ago. ... Some high-profile researchers are now calling for federal change. Separately on Monday, the head of Harvard Law School’s Project on Psychedelics Law and Regulation, Mason Marks, advocated for relaxation of laws around psychedelic drugs in order to spur mental health-care innovation. His article, published in peer-review journal Nature Medicine, points out that the current status of psilocybin makes it hard to get federal funding for research, which means that private companies currently fund most research and therefore shape public policy. ... As a Schedule I controlled substance, psilocybin falls in the same category as hard drugs such as heroin. Marks said moving it to a less-restrictive category would help create “more-inclusive clinical trials and unbiased regulatory review” by the U.S. Food and Drug Administration. “Basically, our position is that rescheduling is the best approach. It will solve many problems,” Marks said in an interview.

After a consultant told Michigan’s redistricting commission that its current draft maps for legislative districts would still largely favor Republicans, advocates who pushed to reform the state’s redistricting process say it’s imperative for the commission to land on competitively balanced maps. ... During Monday’s briefing, Ruth Greenwood, director of the Election Law Clinic at Harvard Law School, highlighted several draft maps that would achieve desired efficiency ratings. Given Michigan’s traditionally competitive statewide races, Greenwood said it’s possible to draw competitive legislative lines while still respecting communities of interest, which refers to groups with historical similarities in close proximity to one another. “I think that it would just be naive to say that the political geography of Michigan doesn't allow for partisan fairness to be enforced,” Greenwood said.

New Jersey is weighing a novel approach to developing electric transmission projects that observers say could soon be explored by other states and help drive renewables. New Jersey’s Board of Public Utilities announced Sept. 24 that it had closed a request for proposals from companies seeking to build transmission infrastructure to connect planned new offshore wind farms to the regional power grid. In a unique arrangement with the grid operator for the mid-Atlantic region, the Garden State has agreed to pay for a new transmission network without help from other states and use the power lines to link up a slew of wind projects expected to be built off the Jersey Shore. ... Voluntary transmission agreements could be particularly useful for states with offshore wind procurement plans, said Ari Peskoe, director of the electricity law initiative at the Harvard Law School Environmental and Energy Law Program. Offshore wind is generally going to be developed in predetermined locations, which would make it easier for one or more states to plan for the transmission lines through a voluntary agreement, Peskoe said. ... “There’s a lot on the table right now about transmission at FERC, and I suppose it’s also possible FERC might include this in a rulemaking further down the line,” Peskoe said. “But I think the current policy statement is really an invitation that states and RTOs explore this option if it makes sense.”

An op-ed by Bob Bauer and Jack Goldsmith: House Democrats late last month introduced the Protecting Our Democracy Act — a bill to curb presidential power that has been widely characterized as a “point-by-point rebuke of the ways that President Donald J. Trump flouted norms,” as the New York Times put it. Trump did indeed aggressively flout norms, but this is a misleading lens through which to view many of the important reforms to the presidency in the bill. The truth is that the bill’s central tenets address problems that arose during recent presidencies of both parties, and that Congress as an institution should want to check. Consider the bill’s proposals to qualify the presidential pardon power by making it a crime to offer a pardon in exchange for a bribe. Trump issued a number of politically and personally self-serving pardons that many commentators thought might rise to the level of bribery. But former President Bill Clinton faced these criticisms at the end of his term after he pardoned Marc Rich, whose wife had previously donated $450,000 to the Clinton Foundation. In fact, the Southern District of New York instituted a federal criminal investigation. The PODA provision would have a powerful and salutary effect in prohibiting pardons as part of a bribery scheme involving presidents.

An op-ed by Nancy Gertner: Supreme Court justices have sounded a similar theme in recent speeches around the country — but one that bears little resemblance to the court they sit on. At the University of Notre Dame, Justice Clarence Thomas insisted judges were not supposed to base decisions on personal feelings or religious beliefs. At the University of Louisville, Justice Amy Coney Barrett wanted to convince students “that this court is not comprised of a bunch of partisan hacks”; “competing judicial philosophies,” not politics, control their decisions. Justice Stephen Breyer agreed: You “gradually pick up the mores of the institution . . . you’re a judge, and you better be there for everybody.” True, this is a court with diverging “judicial philosophies.” But these philosophies map closely onto partisan differences — about civil rights, economic regulation, religious rights, voting rights. According to Erwin Chemerinsky, the dean of Berkeley Law School, “Time and again, the court’s Republican majority has handed down decisions strongly favoring Republicans in the political process.”

Speakers from Voters Not Politicians, the group that wrote and helped pass the constitutional amendment establishing the Michigan Independent Citizens Redistricting Commission, discussed Monday the state's redistricting process. They were joined by a speaker from Harvard Law [Ruth Greenwood, visiting assistant professor of law and director of the Election Law Clinic].

On the Daily Climate Show, we investigate who's behind industrial-scale deforestation in the Brazilian Amazon and why. Plus, the latest from the pre-COP26 youth event and our guests [including Dr. Xi (Sisi) Hu, program fellow at the Labor and Worklife Program at 13:00] debate how Greta Thunberg has had such an impact on the world.

This month, Randall Kennedy, Michael R. Klein Professor of Law at Harvard Law School, published a collection of essays titled “Say It Loud! On Race, Law, History, and Culture.” The Civil Rights Act and antiracist activism are among Kennedy’s topics, and the book includes provocative essays about Nat Turner, Frederick Douglass, and Thurgood Marshall. In a conversation with the Gazette, the legal scholar answered critics of his work, described his politics, and explained why his hopes for racial equality in the U.S. have dimmed. The interview was edited for clarity and length.

Massachusetts’ state bird, the black-capped chickadee, is among scores of birds expected to disappear from parts or all of the state by 2050. The North Atlantic right whale, which appears on some of the state’s license plates, has seen its population decline by a quarter over the past decade. And the dwindling number of bog turtles, a squat reptile the size of a cellphone, means only about 65 adults are left in the state. All of them are threatened by climate change. ... Carney Anne Nasser, a research fellow at Harvard Law School’s animal law and policy program, noted that some state lawmakers have become so fed up with the lack of federal action in recent years that they have introduced bills to extend protections to species in their state, regardless of what federal regulators decide. “After an administration that had an all-out war on wildlife, we have to take meaningful action to right the ship, so we can prevent future species from being removed from the list because of extinction,” she said. “We should have full confidence that these decisions are being made with the best available scientific evidence, and that economics and politics aren’t interfering.”