Media Mentions

Book Review of Noah Feldman’s The Broken Constitution: Lincoln, Slavery, and the Refounding of America: Over the course of two days in February 1850, amid the debates in the U.S. Senate that would lead to the famous congressional compromise over slavery later that year, Jefferson Davis of Mississippi delivered a florid floor speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would take office as the president of the Confederate States of America.) A flood of antislavery fanaticism and sectional hatred, Davis declaimed, had opened a “moral crevasse” that endangered America’s very foundations. The framers, Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring “turgid waters through the broken Constitution.” Davis’s pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis’s nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was “the essence of anarchy.”

The Biden administration is calling on Congress to pass legislation that would strengthen government regulation of stablecoins, a form of cryptocurrency that has soared in popularity in the past year. In a 22-page report issued Monday, the Treasury Department and several other regulators said the legislation should require that stablecoin issuers become banks, which would potentially subject them to a wide range of rules, including those requiring that banks hold sufficient cash reserves and implement measures to prevent money laundering and other illicit activities. ... Until Congress acts, the working group said that the Financial Stability Oversight Council, a broader collection of financial regulators, could coordinate steps to protect investors and oversee stablecoin issuers’ reserves. “It would force them into the regulatory perimeter, which is the thing that most people think is appropriate,” said Howell Jackson, a financial regulatory expert at Harvard Law School.

Large companies’ awards of millions in executive bonuses on the eve of bankruptcy are drawing renewed congressional focus. Bankrupt companies need court approval to award executive bonuses. But there isn’t a similar restriction on pre-bankruptcy bonuses, a loophole that’s been increasingly used by some big-name companies, such as Hertz Global Holdings Inc. and Chesapeake Energy Corp. ... In the wake of public outcry over bonuses awarded to Enron Corp. and WorldCom senior managers, Congress in 2005 amended the bankruptcy code to require court permission before a bankrupt company could offer such compensation. “The amendment was an emotional response and never calibrated to deal with the real problem,” said Jared Ellias, a bankruptcy law professor at the University of California, Hastings and visiting professor at Harvard Law School.

Members of the Mt. Washington Commission met last week with a mediation team from Harvard to help the commission overcome disagreements that have held up a new master plan for the park. The Harvard Negotiation & Mediation Clinical Program team is made up of three third-year Harvard Law School graduate students and their supervisor, Clinical Law Professor Rachel Viscomi. The team actively engaged with Mt. Washington Commission members and others on Friday, Oct. 29, at an in-person meeting at the Peabody Lodge in Franconia Notch State Park.

Watch: The Supreme Court heard two challenges to Texas’ restrictive abortion law Monday. This was just the start to a contentious week for the justices, with arguments over New York’s gun rights law slated for Wednesday. Nancy Gertner, senior lecturer at Harvard Law and a member of President Biden's Supreme Court Commission and Renée Landers, Suffolk University constitutional law expert, joined Jim Braude on Greater Boston to discuss. ... Gertner looked ahead to the upcoming Mississippi case, a direct challenge to Roe v. Wade, which she called “dire” for abortion rights. “It’s unimaginable that their purpose was anything other than to carve up Roe v. Wade or to reverse it,” she said.

Elon Musk’s visions of the future all stem from the same place: the science-fiction he grew up on. To understand where Musk wants to take the rest of us — with his electric cars, his rockets to Mars, his meme stocks, and tunnels deep beneath the earth — Harvard professor and New Yorker writer Jill Lepore looks at those science fiction stories and helps us understand what he’s Musk missed about them. The Evening Rocket explores Musk’s strange new kind of extravagant, extreme capitalism — call it Muskism — where stock prices are driven by earnings, and also by fantasies.

Corporate America is making some gains in expanding its commitment to diversity. According to a new study from The Conference Board, 2021 marks the first time that a majority of S&P 500 companies—59%—have disclosed the racial makeup of their boards. The increased transparency is widely considered an important step in advancing equity and inclusion. ... Some have opposed the measures, including the two Republicans on the SEC. Commissioner Hester Peirce registered her opposition in a lengthy statement that, among other things, argued that the new requirements “encourage discrimination and effectively compel speech by both individuals and issues in a way that offends protected Constitutional interests.” Others, such as Harvard Professor Jesse Fried, refuted Nasdaq’s claims that diverse boards are linked to enhanced financial performance, arguing that they do not result in higher stock prices, “the outcome investors actually care about.”

An op-ed by Ashley Nunes, director for competition policy at the R Street Institute and a research fellow at the Labor and Worklife Program at Harvard Law School: If leadership is, as the author Tom Smith wrote, “the ability to facilitate movement in the needed direction and have people feel good about it,” that could spell trouble for leaders in Ontario. Apparently, the province’s workers don’t feel so good about the direction in which they’ve been moving. The reason? C-suite execs remain tone-deaf to the needs of the working class, to the wants and aspirations of average Ontarians exhausted by a pandemic that has blurred the line between work and home. And so last week, Premier Doug Ford’s government unveiled plans that would give workers the “right to disconnect.” The law that would require that executives at companies with 25 employees or more develop policies for clearly delineating work from the rest of one’s life. These policies could include “expectations about response time for e-mails and encouraging employees to turn on out-of-office notifications when they aren’t working.”

The Supreme Court may be poised to put new guardrails on the Biden administration’s climate agenda after justices agreed last week to consider the extent of EPA’s authority to regulate carbon emissions. The court sent shock waves through the legal world when it agreed Friday to consider a consolidated challenge from Republican-led states and coal companies. The challenge stemmed from a federal court ruling that struck down a Trump-era regulation gutting EPA’s climate rule for power plants (E&E News PM, Oct. 29). When the justices issue their ruling in the EPA case, which is expected by next summer, the decision could provide the first indication of how the court’s new 6-3 conservative majority will approach questions of the federal government’s role in curbing global climate change. ... “I do think it probably complicates EPA’s job and potentially disrupts the momentum that the administration is trying to build around their climate regulation and climate policy efforts,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental & Energy Law Program.

In 2006, a Harvard Law School bankruptcy professor named Elizabeth Warren went on 60 Minutes to talk about a student loan company called Sallie Mae. At the time, Sallie Mae was functioning as both a lender of student loans and a debt collector. Because of how federal loans worked at the time, this amounted to a no-lose scenario. When students paid back their loans with interest, Sallie Mae made money. But even if students defaulted on their loans, the company still made money: The government paid Sallie Mae everything the lender was owed, and then the company’s collections arm also pocketed loads of fees from borrowers when it sought to recover the government’s money. It was this double-dealing that Professor Warren had gone on TV to talk about. ... “Sen. Warren has done a tremendous amount of work to shed light on the wrongdoing by actors, like Sallie Mae, in the student loan world, who abused their power and engaged in various violations in terms of their collection activities,” says Deanne Loonin, an attorney at the Project on Predatory Student Lending at Harvard Law School. There is a lot more to be done when it comes to better regulating loan servicers, says Loonin, but Navient’s exit “is the end of an era, and it’s a huge improvement.”

Abortion rights are front and center at the U.S. Supreme Court on Monday, but not the way most people expected. The focus will not be on abortion rights, per se, but on the controversial Texas law designed to prevent court challenges. At issue is whether a state can nullify a constitutional right — in this case the right to abortion — by delegating enforcement not to state officials, but to private citizens who are authorized to sue abortion providers and anyone else who aids or abets an abortion. ... Wasserman, a law professor at Florida International University, believes the federal government has a good chance of prevailing. “I think the court is going to say that the government can bring this suit and it may be informed by the fact that this law is so blatantly invalid under existing precedent,” he said. Therein lies the rub, says Harvard law professor Stephen Sachs, who doubts that the new conservative supermajority will continue to uphold the court's key abortion precedents, Roe v. Wade and Planned Parenthood v. Casey. “It's not at all clear that the Supreme Court would agree that those cases are rightly decided,” he observes. “They might say they are so wrongly decided that they have to be overruled.”

Florida Gov. Ron DeSantis, a Republican who has emerged as one of the most conspicuous anti-science politicians during the COVID-19 pandemic, officially sued President Joe Biden's administration on Thursday in response to its vaccine mandate for federal contractors. “Because the government's unlawful vaccine requirements seek to interfere with Florida's employment policies and threaten Florida with economic harm and the loss of federal contracts, the State seeks relief from this Court,” read the 28-page lawsuit, which was filed in federal court in Tampa. The document singled out Biden's Sept. 9 address announcing vaccine mandates, implying that the administration also believes the government should not mandate vaccines but is ignoring the law because the president's “patience” has been “wearing thin" and he is angry “at those who haven't gotten vaccinated.” It also argued that complying with Biden's mandates would cause economic harm to the state. ... “I would say this DeSantis lawsuit is between manifestly groundless and utterly frivolous,” Harvard law professor Laurence Tribe told Salon by email. “The executive actions DeSantis has sought to depict as lawless are well within the president's statutorily delegated authority.”

The attorneys behind a former federal public defender’s lawsuit challenging the judiciary’s approach to handling misconduct claims want to find out which judges are considering the case’s appeal, after the entire circuit recused itself from the case. The Jane Roe lawsuit is currently before the U.S. Court of Appeals for the Fourth Circuit. The full circuit recused itself soon after the appeal was filed, presumably because the complaint names the circuit, its chief judge and judicial council. Lawyer Cooper Strickland and Jeannie Suk Gersen, a professor at Harvard Law School, on Friday filed a motion requesting that orders “resulting from this intercircuit-assignment process” be filed on the public docket for the case. “This public disclosure is required by statute, as well as constitutional principles of fairness and transparency in judicial proceedings,” the filing reads. The opposing parties in the case, represented by the Justice Department, have no position on the motion, according to the filing.

An op-ed by Martha Minow: While no task is more important to a society than educating each next generation, this task is central for a democracy. Self-government needs people equipped to govern — equipped with knowledge, motivation, and ability to pursue their own interests while also recognizing and caring about the rights and needs of others. The Supreme Court of the United States recognized this in the landmark 1954 Brown v. Board of Education decision. There, the highest court not only ended government-ordered racial segregation in schools but also enshrined education as the most important function of local and state governments and as “a right which must be made available to all on equal terms.” For too many students, that promise has not been realized and the federal courts have avoided recognition of a national, enforceable education right. That could change. Currently pending before the U.S. Court of Appeals for the First Circuit is A.C. v. McKee, a case brought by 14 Rhode Island students who seek to affirm the right to an education that includes at minimum introduction of knowledge, skills, experiences, and democratic values necessary for them to effectively exercise their constitutional rights to vote, to exercise free speech, to serve as jurors, and to participate in their democratic government.

Attorney General Merrick Garland has re-established a Justice Department office that aims to expand services for people who can’t afford lawyers, making good on a promise by President Joe Biden. The Office for Access to Justice, included in a new agency flow chart Garland signed on Thursday, is part of his broader plan to expand legal services in the federal government for low-income Americans. ... The plan is “a solid start,” Laurence Tribe, a Harvard law professor who led the office under Obama, said in a statement. “It remains to be seen how effectively those plans will be implemented, but I have every reason to be optimistic.”

Since 2013, more than a dozen states have tried to ban abortion as soon as a sonogram can pick up the thump-thump of an embryonic heartbeat. That’s about six weeks, an egregious constitutional affront under Roe vs. Wade. No court has allowed a ban so early in pregnancy to stand. The Supreme Court never even granted an appeal — until Texas concocted Senate Bill 8. ... “We may get some tea leaves from [Monday’s] argument, but I would be very surprised if there were major changes that come directly out of it,” said I. Glenn Cohen, deputy dean of Harvard Law School and an expert on medical ethics and the law. “If there is going to be a big change in abortion law itself, i.e., what the Constitution prohibits states from doing, that’s likely to come at least initially in Dobbs.”

... Across the nation, employers, government officials, health care workers and other Americans are continuing to push back against COVID-19 vaccine mandates, even as the death toll has climbed to more than 740,000 people. ... Twenty years ago, researcher Alma Cohen compiled federal and state data proving that mandatory seatbelt laws prompted more people to wear them and saved lives. She sees parallels in the language vaccine-mandate opponents use today. And, she points out, opposition to seatbelt laws has generally faded away. Cohen is a Harvard Law School professor and a faculty fellow at the National Bureau of Economic Research. "Our study identified the significant gains in lives saved that were produced by mandatory seat belt laws," Cohen added. "Mandatory vaccination requirements, I expect, would also contribute substantially to the saving of lives both directly and indirectly."

House Intelligence Committee chair Adam Schiff ’85 (D-Calif.) recently spoke to the Harvard Gazette about the work of the House Select Committee investigating the Jan. 6 attack on the Capitol, even as new information unfolds.

A Senate committee will take public comment Thursday on the Republican proposal for [Wisconsin's] next 10-year political boundaries, maps that would likely ensure another decade of GOP majorities in the state Legislature. For Republicans, the GOP proposal for the state's legislative and congressional boundaries aligns with plans to retain the core of existing districts, but for Democrats and those seeking nonpartisan maps, the offering is just more of the same. ... PlanScore, a program that predicts precinct-level votes for districts based on past election results and U.S. Census data led by the Campaign Legal Center, a national nonprofit organization that advocates for nonpartisan maps, found the GOP proposal "essentially bakes in almost the same level of partisan advantage" as current districts, said Ruth Greenwood, director of the Election Law Clinic at Harvard Law School.

Welcome to a construction labor lawyer's life during what's become known as "Striketober." ... This fall, workers in a wide range of industries have walked off the job, from Kaiser Permanente hospitals in California to John Deere factories in Illinois, Iowa and Kansas, to cereal workers at Kellogg's plants in Michigan, Nebraska, Pennsylvania and Tennessee. ... "What we're facing now gives unions leverage at the bargaining table, whether they strike or not," said Mark Erlich, a fellow in the Labor and Worklife Program at Harvard Law School, and former executive secretary-treasurer of the New England Regional Council of Carpenters. "It at least will help them get better agreements."

The nicest thing you can say about the Health Misinformation Act, proposed in July by the Democratic senators Amy Klobuchar and Ben Ray Luján, is that it means well. The internet has been a key accelerant of widespread myths, misunderstandings and lies related to Covid-19; Klobuchar and Luján’s bill would force online companies like Facebook to crack down on false information during public health emergencies, or lose immunity from lawsuits if they don’t. ... Klobuchar and Luján’s bill is one of many plans that attempt to curb the power of tech companies by altering Section 230 of the Communications Decency Act, the much-hated and much-misunderstood 1996 rule that affords websites broad immunity from liability for damage caused by their users. ... As Daphne Keller, the director of the Program on Platform Regulation at Stanford’s Cyber Policy Center, has outlined, there are at least six different ways that the Constitution limits Congress’s power to regulate online discourse. ... Not everyone agrees that the Constitution is incompatible with speech regulations for tech companies. Lawrence Lessig, a professor at Harvard Law School who has been working with Frances Haugen, the Facebook whistle-blower, told me that some content-neutral rules for online speech might survive constitutional scrutiny — for example, a rule that set an upper limit on the number of times a Facebook post could be reshared.