Media Mentions

Harvard constitutional law professor Laurence Tribe rejects former President Donald Trump’s arguments against the release of documents relating to the U.S. Capitol riot as “truly laughable.” Trump this week filed a lawsuit seeking to block or at least delay the release of records to the House select committee investigating the Jan. 6 violence, which he was impeached for inciting. The ex-president called it an “illegal fishing expedition” and cited executive privilege, even though he’s no longer in office. On Wednesday’s broadcast of CNN’s “OutFront,” Tribe said Trump’s claim “that he is not trying to hide the truth, but just preserve the Constitution, is really quite laughable.” Tribe also dismissed Trump’s view that it would be “unconstitutional” for President Joe Biden’s view of executive privilege to override his own. That was “mistaken,” said Tribe. “And his argument that there is no legitimate legislative purpose is truly laughable,” Tribe added.

Sen. Elizabeth Warren (D., Mass.) has proposed a new measure that would empower creditors in chapter 11 cases to pursue allegations of self-dealing by private-equity owners, rights that currently lie with corporate directors selected by those investment firms. ... Under Sen. Warren’s bill, independent directors “won’t be able to just tidy-up claims against insiders,” said an author of that study, Jared Ellias, a professor at the University of California Hastings College of Law [and visiting professor of law at Harvard Law School].

An op-ed by Terri Gerstein: How much should someone be paid for cleaning a 1,700 square-foot bank? A janitor in Washington State was paid an average of $6.59 per job doing this work — not $6.59 per hour, but $6.59 for the entire cleaning job. According to a lawsuit filed earlier this year by the state’s attorney general, the janitor and other immigrant workers with limited English skills were lured into this grueling, grossly underpaid work through a scheme common in the industry: A janitorial company sold the workers franchises that were pretty much bound to fail. In these situations, the price is steep, the cleaning jobs are inherently unprofitable and the franchise purchases are financed through loans from the company, to be paid off with deductions from pay. In the end, workers toil for next to nothing, lack the autonomy of a true independent business and face what is essentially a crippling payday loan keeping them indentured to their employer.

An op-ed by Noah Feldman: It should be no surprise to anyone that the Biden administration’s commission on Supreme Court reform seems poised to offer recommendations that will not endorse packing the court. After all, the commission was born of Joe Biden’s desire during the presidential campaign not to commit himself to adding new justices. It was populated with distinguished legal scholars and members of the bar, most of whom share a meaningful commitment to the preservation of our legal institutions. But it doesn’t follow that court packing is permanently off the table. That’s because of the wild card introduced by the Mississippi antiabortion law that the Supreme Court will consider this fall and decide next spring.Put bluntly, if the court overturns Roe v. Wade, all bets are off.

New rules affecting the electric power system issued by the Federal Energy Regulatory Commission should apply everywhere, including in parts of the country that lack organized power markets, FERC Chair Richard Glick said yesterday. ... The Midcontinent Independent System Operator has also urged FERC to apply future transmission planning reforms to both RTOs and non-RTOs, since leaving non-RTOs out of certain requirements could give utilities a reason to leave the organizations, said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. "Glick is clearly addressing a broader point, not just about transmission development," Peskoe said. "In general, FERC has to more actively regulate the utilities that are not in RTOs, in part to ensure that utilities not in RTOs will not stay out to avoid FERC rules and those already in RTOs won’t leave in order to avoid FERC rules."

A book review by Lael Weinberger, Olin-Searle-Smith Fellow in Law at Harvard Law School: War is hell. This aphorism is often ascribed to William Tecumseh Sherman, the Civil War general whose vision of total war was the most unflinchingly ruthless of any of the major leaders of that brutal conflict. Yet today the aphorism doesn’t quite fit. The modern American way of war is much neater, cleaner, and more precise. Law circumscribes war, and remote-control drones often carry it out. It tolerates fewer collateral casualties than anything seen in the bulk of American history. Modern American war is, or at least aspires to be, humane. Yet in Humane: How the United States Abandoned Peace and Reinvented War, a characteristically provocative work of historical scholarship, Samuel Moyn forces readers to ask whether this shift in the character of war has a dark side.

Price rises—they keep on coming. Even before the recent surge in energy prices, companies had been warning about inflationary pressures in their supply chains.  ... Government climate policies, such as biofuel mandates, help drive up the cost of energy and food. So do non-commercial decisions made by business and Wall Street. In his 1970 essay on the social responsibility of business, Milton Friedman wrote that when a corporate executive makes expenditures on pollution reduction beyond what’s in the best interests of the corporation or required by law, that executive is, in effect, imposing taxes and deciding how the tax proceeds should be spent. In their critique of the doctrine of stakeholderism as propounded by the Business Roundtable in its August 2019 statement of corporate purpose, Harvard Law School’s Lucian Bebchuk and Roberto Tallarita note the Roundtable’s denial of the reality that the interests of shareholders and stakeholders can clash. Freeing directors from shareholder accountability puts directors in the position of adjudicating these trade-offs and elevates them to the role of social planner—“the ideal benevolent entity conjured up by economists to model socially optimal outcomes.”

For over a century, U.S. Presidents have fought zealously to defend the executive branch’s right to withhold certain information from Congress and the public. President Joe Biden, facing extreme political pressure in the fraught probe of Donald Trump’s role in the Jan. 6 attack on the Capitol, may soon defy that norm. ... Neil Eggleston, a Harvard Law lecturer who served as White House Counsel to President Barack Obama, says that “the facts are just so extreme that no dangerous precedent would be set” if Biden waives executive privilege over Trump’s documents. Based on his knowledge of the White House review process, Eggleston thinks it is unlikely that Biden will withhold any information that could help uncover how the mob was able to infiltrate the Capitol and disrupt the certification of Biden’s presidential victory, given the “compelling need” for answers.

Former president Donald Trump is suing to block the House committee investigating the Jan. 6 attack on the U.S. Capitol from receiving records for its inquiry into the events of that day as well as Trump’s efforts to overturn the 2020 election results. Trump and his attorneys argue that the records requests are overly broad and have no legislative purpose, and they criticize President Biden for not asserting executive privilege to block the handover of those documents. ... Laurence H. Tribe, a constitutional law professor at Harvard, called the suit a “very weak complaint” and scoffed at a key argument in the lawsuit. “The idea that Congress has no legitimate purpose in making this request is almost insane. In fact, no purpose could be higher on the totem pole than protecting the Republic from a coup,” he said. Tribe said that there was one part of the lawsuit that did not seem frivolous: The complaint about overbroad requests for documents. He predicted that a judge might agree to narrow the scope of requested documents.

“When we issue an opinion, we are aware that every word that we write can have consequences, sometimes enormous consequences,” Justice Samuel A. Alito Jr. said last month. “So we have to be careful about every single thing that we say.” A fascinating new study of the extraordinary impact of a tiny typographical error in a Supreme Court opinion almost a century ago illustrates the point. The mistake appeared in a slip opinion issued in 1928, soon after the court announced a decision in a zoning dispute. It contained what seemed like a sweeping statement about the constitutional stature of property rights: “The right of the trustee to devote its land to any legitimate use is property within the protection of the Constitution.” But the author of the opinion, Justice Pierce Butler, had not meant to write “property.” He meant to say “properly.” ... These days, the Supreme Court is much better about publicizing its errors. That is a consequence of changes instituted by the court in response to a 2014 article by Richard J. Lazarus, a law professor at Harvard, who disclosed that the justices had long been revising their opinions without public notice, sometimes amending or withdrawing legal conclusions.

State judges bedeviled by weirdly shaped and obviously partisan congressional district maps can now get expert help from an unusual source: math nerds. Using sophisticated techniques drawn from statistics and geometry, mathematicians have developed tools that could play a huge role in a gerrymandering lawsuit filed in Ohio and during court fights expected in Georgia, Texas and Oregon. The algorithms can determine whether a map benefits one party or another, with the aim of providing courts and citizens with an objective gauge rather than relying on partisan arguments. While both mapmakers and their critics have long used software to draw the lines, this year will be the first redistricting cycle in which opponents will have the mathematical measures to objectively show that a map is gerrymandered as the maps are being approved for the next decade. That could potentially alter a process that may determine control of the U.S. House in next year’s midterms..In 2014, Harvard law professor Nicholas Stephanopoulos and political scientist Eric McGhee developed the efficiency gap, which measures how many votes each party wasted, either by losing a race or winning by an unnecessarily high margin.

For more than 100 years, a 7-foot-tall statue of Thomas Jefferson has towered over members of the New York City Council in their chamber at City Hall. The statue has stood by for generations of policy debates, thousands of bills passed and a city budget that has soared to roughly $100 billion. It has also withstood another test of time: Two decades ago, a call to banish the statue gained attention, but went nowhere. But as the country continues the slow and painful process of determining who deserves to be memorialized in shared public spaces, the removal of the Jefferson statue is receiving far more serious consideration. ... Annette Gordon-Reed, a Harvard Law School professor and a Jefferson expert, objected to the idea of taking down the Jefferson statue, but described its likely move to the New-York Historical Society, where she serves as a trustee, as the best-case scenario. “This represents a lumping together of the Confederates and a member of the founding generation in a way which I think minimizes the crimes and the problems with the Confederacy,” Ms. Gordon-Reed said.

An op-ed by Laurence H Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis Aftergut: Sadly, predictably and appallingly, on October 14, a three judge panel of the US court of appeals for the fifth circuit has allowed Texas’s “Bounty-Hunter” anti-abortion law to go back into effect while the court considers the case on the merits. Every day that the fifth circuit panel’s unlawful order keeps the statute in operation brings irreversible injury to women in Texas. US Attorney General Merrick Garland has properly decided to seek emergency relief from the US supreme court. The justice department is right to accuse the State of Texas of seeking to destroy not only abortion rights but also the foundation of our constitutional Republic. In a nation whose history is fraught with battles between states’ rights and national sovereignty, the case of United States v Texas raises issues basic to our national compact.

According to Emily Broad Leib, founder and director of Harvard Law School’s Food Law and Policy Clinic (FLPC), inconsistent labeling is just one of many ways the United States spurns simple rules that can greatly reduce food waste.

Harvard Law School’s new Institute to End Mass Incarceration (IEMI) proposes a new role for lawyers in the push to “decarcerate” America.

BlackRock’s co-founder and CEO has created a business with unprecedented power. So what, exactly, did it take for him to get this far? A new book explains all. ... Lucian Bebchuk of Harvard Law School and Scott Hirst of Boston University estimated in a 2019 paper titled The Spectre of the Giant Three that the trio’s combined average stakes in the 500 biggest listed US companies had vaulted from about 5 per cent in 1998 to over 20 per cent. Their real power is even greater – and growing. Given that many shareholders don’t actually bother to vote at annual meetings, BlackRock, Vanguard and State Street now account for about a quarter of all votes cast on average, which will rise to 41 per cent over the next two decades, the academics estimated. John Coates, a Harvard Law professor, has called this rising concentration of economic power “a legitimacy and accountability issue of the first order”.

IATSE isn’t working alone when it comes to pressing for better labor conditions. As Hollywood waits to see whether the union that represents thousands of technicians and craftspeople will go on strike as part of an effort to improve on-set working conditions, the rest of the country has already seen similar maneuvers from workers in a broad range of industries. ... “We are seeing what may be the biggest part of a new strike wave, in which workers are expressing their unwillingness to put up with intolerable conditions. That’s happening in health care. It’s happening in coal mines. It’s happening at Kellogg. It’s happening at Nabisco,” says Benjamin Sachs, a professor at Harvard Law School who studies labor law and labor relations. “It’s really cutting across sectors.”

The fate of convicted Boston Marathon bomber Dzokhar Tsarnaev is now in the hands of the Supreme Court, which must decide whether his death sentence will be reinstated. Jim Braude was joined on Greater Boston by Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School, to discuss. Gertner commented on the tricky spot that the Biden administration and the Department of Justice are in, given that Biden is personally opposed to the death penalty. “You see this a lot in the Merrick Garland administration of the Attorney General’s office — they see themselves as not the final word. They’ve only put a moratorium on the death penalty,” she said.

For one of the world's leading experts on food waste, visiting a grocery store can be frustrating. Stepping into her local Whole Foods, clinical professor of law Emily Broad Leib notices something awry in the store’s first produce display. The unbagged heads of broccoli lack date labels, but the bagged broccoli bears a “best by” date of August 12. “But that’s sort of picked out of thin air,” she points out. “There’s nothing going on with broccoli with no other ingredients. It doesn’t make any sense.” She reaches for a bag of grapefruits across the aisle—they don’t have a “best by” date. “That makes it even crazier,” she says. “Why would you put it on broccoli that’s no different than these things?” It’s a simple example, but for Broad Leib, founder and director of Harvard Law School’s Food Law and Policy Clinic (FLPC), this inconsistent labeling is just one of many ways the United States spurns simple rules that can greatly reduce food waste. It’s finding and fixing these inefficiencies that has driven her and her team not just to research and recommend new ways to promote effective food policies, but also to create the rapidly emerging field of law.

As she assumes her new role as organizing fellow for Harvard Law School’s new Institute to End Mass Incarceration (IEMI), community organizer Brittany White finds herself thinking of Bianca.  ... The institute proposes a new role for lawyers in the push to “decarcerate” America. “Lawyers think that power comes from law and permits, that the way liberal lawyers can make a difference is by going in and bringing power to clients. That’s not the way we think about it,” says faculty director and Wasserstein public interest professor of law Andrew Manuel Crespo. “We take our inspiration and our cues from movement work,” such as the civil-rights movement or labor organizing, because such things “have had the biggest impact on changing deep structural injustices in America.” The Institute, Crespo says, proposes that “power comes from the ground up,” and lawyers, in particular public defenders, should use their legal expertise to “help communities activate their power.” They want to teach the next generation of lawyers to be active partners with community organizers like White in the fight to end mass incarceration.

A book review by Primal Dharia:Early in “Redeeming Justice,” Jarrett Adams reflects on the power of storytelling and its role in criminal courtrooms across our country: “Who wins? In prison, I learned it’s not the lawyer who has amassed the most or the ‘best’ evidence. . . . The one who wins, I learned, is the one who tells the best story.” ... Adams’s story is a devastating one regardless of how it’s told. But the pages of this book deliver a gut punch, making every step along the way a visceral experience that readers are invited into. Wrongfully convicted by an all-White jury at the age of 17, Adams, a Black teenager charged with sexually assaulting a White teenager, served nearly 10 years of a 28-year prison sentence before being exonerated with the help of the Wisconsin Innocence Project. Known as “Li’l Johnnie Cochran with the glasses” in prison, he delved into the law and fought for years to have his case reviewed while also helping countless others navigate their court cases from behind bars.