Media Mentions

An op-ed by Carmel Shachar and I. Glenn Cohen: “There are three quarters of a million new [COVID] cases yesterday. . . [t]hat is 10 times as many as when OSHA put in this ruling. The hospitals are today, yesterday, full. . . . Can you ask us—is that what you are doing now—to stop this vaccination rule with nearly one million people, nearly three quarters of a million people, new cases every day?” This was the dramatic question asked on Friday by Supreme Court Justice Stephen Breyer of Scott Keller, one of the attorneys seeking a stay of an Emergency Temporary Standard (ETS) promulgated by Occupational Safety and Health Administration (OHSA) in the case of National Federation of Independent Business v. Department of Labor. This so called “Test-or-Vaccinate” mandate requires employers across the country with more than 100 employees to implement either vaccination or testing and masking policies for their employees. A majority of the Justices seem poised to endorse not only a temporary stay of the standard, but a permanent injunction against OSHA’s power to act, and the country will be worse for it.

...Last week, Democrats announced they would bring voting rights to the fore once again. Seemingly energized by the first anniversary of the Jan. 6 insurrection on the U.S. Capitol, when supporters of then-President Donald Trump tried to prevent the certification of the results of the 2020 presidential election, Senate Majority Leader Chuck Schumer said his chamber would soon vote on easing filibuster rules so that voting rights legislation could possibly — finally — make it across the finish line. ... But even if Democrats aren’t able to pass voting rights legislation, they can at least establish themselves as the party in favor of democracy and voting rights. The question is, will this be enough for their base? At least one expert told me that the party risks looking feckless, if not useless, if they cannot deliver. “You don’t get points for trying; you get points for succeeding,” said Nicholas Stephanopoulos, a professor of law at Harvard Law School. “So the party base who cares about voting rights as an issue are not going to care that Democrats tried and failed. If anything, they’ll be irritated and disappointed if the bill has a lot of salience and still doesn’t pass.”

Lani Guinier’s critics misjudged her if they hoped she would silently leave the public stage after her 1993 nomination to lead the US Justice Department’s Civil Rights Division crumbled amid rising conservative criticism and fading liberal backing. Nearly a year to the day after President Bill Clinton withdrew Ms. Guinier’s nomination, she spoke at a college graduation where she chastised conservatives for misrepresenting her work and supporters for saying she should have muffled her views. “These people suggest that if I had been more quiet about what I was about, that I would have gotten the job, and then I could have gone on and done the job,” she told graduates of Hunter College in New York City in June 1994. “But I believe that if silence is the price of admission, it is also the cost of doing the job.”

President Joe Biden’s ambitious social spending and climate-change package of legislation, the Build Back Better Act, appears unlikely to pass as originally written after the moderate West Virginia Democrat Sen. Joe Manchin declared his opposition in the days before Christmas and reiterated this week that there are no ongoing discussions over the bill. ... But there are few other policies that could motivate Biden’s base more than student loan forgiveness, given that voters with college degrees support Biden as president in much greater numbers than voters without degrees. ... “Everybody agrees that the Secretary of Education is empowered to make adjustments on federal student loans,” wrote Howell Jackson, a Harvard University law professor in an April article in the Regulatory Review. “The debate turns on the precise meaning of provisions of the Higher Education Act of 1965 which confer upon the Secretary the power to ‘consent to modification’ of, and to ‘compromise, waive, or release,’ amounts due on certain student loans.”

For the most part, public companies are controlled by the votes of common shareholders and the corporate directors they elect. But asset managers have significant sway. Harvard Law School’s John C. Coates extrapolates this concentration of ownership to “The Problem of Twelve.” In a working paper, he argued that “in the near future roughly twelve individuals will have practical power over the majority of U.S. public companies.” He meant that asset managers like BlackRock Inc., BLK -2.64% Vanguard Group and Fidelity Investments—primarily investing on behalf of retirement investors and savers—would essentially serve as a 12-headed corporate board, lording over all public companies.

Lani Guinier, a lawyer whose innovative and provocative writings on racial justice and voting rights were used to undermine her nomination to lead the Justice Department’s Civil Rights Division early in the presidency of Bill Clinton, died Jan. 7 at an assisted-living facility in Cambridge, Mass. She was 71.

Democrats, activists and historians have urged the president for months to take the fight to Republicans who continue to spread lies about the 2020 election and to shield democracy from ongoing threats. On Thursday, Joe Biden answered in his most direct and cogent speech on the matter to date. Biden not only addressed the violent acts of that day carried out by pro-Donald Trump rioters who sought to overturn the election, but detailed the sustained effort by Trump and his allies to subvert the nation’s electoral system in the future. ... Historian Laurence Tribe, who has known Biden since the 1980s and has at times advised the president, spoke to Klain after Biden’s address, relaying his belief that the speech was Biden at his best. “Equal to anything that JFK did or anything that Obama did,” Tribe recalled telling Klain. “There were no rose-colored glasses, the president was not covering the difficulty of challenges that we face,” Tribe added. Tribe, like others, has long wanted Biden to make such explicit remarks. “I've certainly been waiting, and I'm so glad that he finally did this.”

An article by Eli Y. Adashi and Glenn Cohen: On September 2, 2021, the White House released its long-awaited pandemic preparedness proposal titled American Pandemic Preparedness: Transforming Our Capabilities.1 Called for by presidential executive order 13987 and National Security Memorandum 1, the proposal, 8 months in the making, comprises a whole-of-government review and update of US national biopreparedness policies.2,3 The pandemic preparedness proposal is ambitious and all-encompassing and acknowledges that the transformation of “our medical defenses” will require “extensive scientific and technological efforts.”1 In this Viewpoint, we review the leading objectives of the pandemic preparedness proposal, discuss the outcome of comparable past federal efforts, and emphasize the imperative of intragovernmental coordination.

Another supreme battle at the U.S. Supreme Court Friday: In a special session, the justices are hearing expedited arguments in cases challenging two major Biden administration regulations aimed at increasing the number of vaccinated workers. The cases are in a preliminary posture, but how the court rules will very likely signal how these issues are ultimately resolved. ... "I think this is a case that's a test of how truly radical or conservative this court is or is not," says Harvard Law professor Richard Lazarus. "The question is whether the Supreme Court is going to try to totally upend the ability of our national government to safeguard the nation's health and safety amidst a global pandemic sweeping the country."

From 2021: Rep. Jamie Raskin (D-Maryland) became nationally known earlier this year as the lead House impeachment manager seeking President Donald Trump’s conviction in the Senate for his role in the Capitol insurrection of January 6. “Senators, this cannot be our future,” he said during the trial. “This cannot be the future of America. We cannot have presidents inciting and mobilizing mob violence against our government and our institutions because they refuse to accept the will of the people under the Constitution of the United States.” While he pled the case, he was in mourning for his son, Tommy, a Harvard Law student who died on December 31. Raskin, who prior to being elected to Congress was a constitutional law professor at American University’s Washington College of Law, spoke to Harvard Law Today on Friday, March 12, from his home in Maryland about Tommy, the day the Capitol was breached, the progressive politics that, he said, “run in my blood,” and how a fellow HLS student’s dream changed the course of his life.

Attorney General Merrick Garland has promised more charges to come against people who were part of the 2021 attack on the Capitol, while many continue to call for former President Donald Trump to be charged in the insurrection. Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School, and former U.S. Attorney Michael Sullivan joined Jim Braude on Greater Boston to discuss.

An article by Roberto Tallarita, lecturer on law and an associate director of the Program on Corporate Governance at Harvard Law School: Index funds own a large fraction of the US stock market. According to some estimates, the so-called “Big Three”—BlackRock, Vanguard, and State Street, the largest index fund managers in the world—are together the largest shareholders in 40 percent of the publicly listed companies in the United States and in 88 percent of the companies in the S&P 500. By 2039, they are projected to vote 41 percent of the shares in S&P 500 companies. Many experts are worried about such a massive concentration of ownership and voting power. Others, by contrast, believe that index fund managers will use their growing influence to persuade companies to reduce their carbon emissions and therefore mitigate the risk of climate change for society.

In the year since the Jan. 6 attack on the Capitol, a handful of Democrats, constitutional scholars and pro-democracy advocates have been quietly exploring how a post-Civil War amendment to the Constitution might be used to disqualify former President Trump from holding office again. ... “If anything, the idea has waxed and waned,” said Laurence Tribe, a constitutional expert at Harvard Law School. “I hear it being raised with considerable frequency these days both by media commentators and by members of Congress and their staffs, some of whom have sought my advice on how to implement Section 3.”

For over three decades, Randall Kennedy, the Michael R. Klein Professor at Harvard Law School, has made one bold intervention after another in the most pressing social issues of the day. Not only has he written at length on such subjects as interracial marriage, affirmative action, and crime and policing, but his work has touched off controversies regarding his nuanced defense of the “politics of Black respectability,” his thinking on racial nomenclature and the variety of ways for describing the collective identity of Black Americans, and his critiques of “anti-racism gone awry” on college campuses.

Video: Constitutional Scholar Laurence Tribe joins MSNBC’s Lawrence O’Donnell to react to Attorney General Merrick Garland’s investigation into the January 6th insurrection. Tribe says the DOJ is focusing too much on January 6th and not enough on the larger plot to overturn the election by coercing state officials to manipulate the results. “The scary thing,” Tribe says, “is there is simply no indication that the department of justice is investigating that broader plot. I hope to heaven that it is, but there’s no indication of it.”

Only one president, before the current one, won a national election only to see a large proportion of the country outright refuse to participate in our democracy rather than accept the result. That president was, of course, Abraham Lincoln. He concluded that those who conspired in an illegal plan to undo the American experiment in democracy had to be permanently banished from politics. It is a lesson Lincoln's successors forgot, and arguably one that should be studied carefully today. ... With Lincoln's approval, Congress addressed this question directly. "The laws enacted by Congress to prevent former Confederate leaders from acquiring power after the Civil War provide an object lesson for our time," Harvard law professor Laurence Tribe wrote Salon by email. They have been enshrined in law as precedent for stopping those who would commit violence against a democratic government. Of the resulting statutes, Tribe identified this one as the "most pertinent."

A year on from the Capitol riots, is the US system of government in peril? Stephen Sackur speaks to Laurence Tribe, Professor of Constitutional Law at Harvard University.

Former White House trade advisor Peter Navarro says he would prove that ex-President Donald Trump "is innocent" in the January 6 Capitol riot if he were to be criminally referred by the House Select Committee over his "Green Bay Sweep" strategy. ... Laurence H. Tribe, an American legal scholar and a University Professor Emeritus at Harvard University, told Newsweek that Navarro's strategy "wouldn't have been within the spirit, and probably not even the letter, of the U.S. Constitution." "Navarro's plans took the bare form of legal and constitutional vessels and poured the equivalent of poisonous fluid into them," Tribe said.

Defense attorneys and civil rights advocates say a Supreme Judicial Court decision upholding the patfrisk of a passenger who was ordered to exit a vehicle during a routine stop is a betrayal of the SJC’s stated commitment to confront racial bias in policing and the courts. ... Katharine Naples-Mitchell, a staff attorney with the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, another amici in the case, said the ruling poses “serious ramifications” for people in communities of color, to which “lip service” was paid by the justices in the majority. She also said the SJC’s opinion betrayed a cognitive bias in its reasoning backward from the fact that the defendant admitted to being a gang member and that police happened to find a gun. “These judgments should not weigh into the question as to whether, at the time the officers were engaged in the stop, they had reasonable suspicion the defendant was armed and dangerous,” Naples-Mitchell said. She further asserted that, in the vast majority of stops, including those involving a patfrisk, police do not find contraband. “The court only sees a small pool of cases and naturally a bias is built in because they’re reviewing criminal appeals where something is found and charges are brought,” Naples-Mitchell said. “They don’t see the vast array of instances where police make a stop and a frisk and no criminal charges ever result. Particularly for communities of color, this is a regular experience.”

An article by Mark Roe and Michael Troege: Debates on the corporate tax are mostly about “how much"—not about “how.” The debate over recent corporate tax plans is no exception. Congress moves tax rates up or down, but the structural imbalances that have built up in the U.S. tax code because of the “how” are ignored. When Sen. Kyrsten Sinema (D-Ariz.) opposed any rise in the corporate tax rate, talk turned to other tax possibilities. With the budget scoring indicating that better enforcement and auditing will not produce the predicted bonanza, corporate tax reform may well come back into focus.

In his nine-page 2021 year-end Report on the Federal Judiciary, Supreme Court Chief Justice John Roberts has tried to meet head-on current criticism in Congress and the media that the Court finds itself, as Court analyst Linda Greenhouse succinctly puts it, “in a danger zone as a willing – and willful – participant in a war for the soul of the country.” ... Many see Roberts as an institutionalist and a moderate, but other Court watchers have a different take. Harvard law professor emeritus Laurence Tribe writes: “I wouldn’t call Chief Justice Roberts a ‘sly extremist,’ but he’s anything but a moderate. He’s very far right on voting rights, equal protection, money in politics, religious establishment, reproductive liberty, labor relations, corporate power, regulatory authority, you name it.”