Media Mentions

When Republican leaders make judicial appointments, they are often looking for only one thing: whether a candidate adheres to the school of thought known as constitutional originalism. There’s a simple reason for that singular focus. To originalism proponents, it signals that judges will remain steadfast to the intended meaning of the Constitution rather than to the many ways it could be interpreted today. To its detractors, it’s a “dog whistle” to those on the right looking for judges who will consistently rule in a conservative-leaning way. ... Constitutional originalism is loosely defined as interpreting the Constitution “according to the original understanding,” says Harvard Law School professor Michael Klarman. What that means is focusing first and foremost on what the framers intended when they wrote the Constitution. “Originalism has always been around,” Klarman tells Teen Vogue. “When judges interpret the Constitution, one of the things that they do is look at what the terms in the Constitution mean to the generation that wrote them and ratified them.”

Senior White House officials privately explored as recently as this week whether the Biden administration could continue making payments even after the federal government breaches the nation’s debt ceiling, according to three people familiar with the matter. ...Laurence Tribe, a Harvard legal expert, told The Washington Post in September that while it would violate the Constitution to ignore the debt ceiling it would be an “even more serious” violation for Biden to obey it if that meant violating the 14th Amendment. Tribe on Twitter earlier this week stressed that the president’s “possible authority to spend above the debt ceiling” should not encourage anyone in Congress to take the risks of breaching the debt ceiling. “For anyone to rely on a president’s possible authority to spend above the debt ceiling on his own to avoid default as an excuse not to raise the debt ceiling would be lunacy,” Tribe wrote. “Casting doubt on the legal status of US securities would spike interest rates and crash the stock market.”

As lawmakers joust over sweeping new incentives for green electricity, EPA is quietly working on the next generation of Clean Air Act power regulations. ... Carrie Jenks, executive director of the environmental and energy law program at Harvard Law School, said she didn’t think there was any conflict between the reconciliation bill and EPA’s rulemaking process. “I do not expect anything is being held up at this time in the regulatory process or that EPA will have to go back to significantly change its analysis for the regulatory framework because of an action by Congress,” she said. Jenks said the incentives program would change the cost dynamics for clean energy development, which could have a bearing on EPA’s modeling and analysis for its rules. "In developing the regulation you’d want EPA to consider broadly where the electric sector is and where is it going," she said. "And any policies that are affecting that trajectory would likely be considered, whether that would be new tax incentives, a new CEPP or existing tax incentives.”

Marriage takes a lot of work. And part of preventing eventual heartache, says law professor Jeannie Suk Gersen, is seeing marriage and partnership through the lens of divorce. Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School, where she has taught courses on constitutional law, criminal law and procedure, family law, and sexual assault and harassment.

An op-ed by Ashley Nunes: Many Canadians hoping to visit the U.S. have been nervously eyeing incoming American travel regulations. Starting in November, the Biden administration will require that anyone flying into the U.S be fully vaccinated. Those who don’t comply will be refused entry. At first glance, the move, which is aimed at curbing the spread of COVID-19 locally, shouldn’t irk Canadians. We have a higher vaccination rate than Americans, and the Canadian government is also set to bring in rules requiring air travellers here to be vaccinated. However, the U.S. has yet to approve the mixing of COVID-19 vaccines, meaning large numbers of Canadians who had two different shots might not be considered vaccinated south of the border.

As soon as President Biden announced his plan to require large employers to mandate vaccines, Republicans vowed to block him. “I will pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration,” tweeted Gov. Brian Kemp. ...They vowed to block it, although they have to wait for the federal rule to be finalized before going to court. “This is a serious and coordinated effort,” says Jim Tierney, who directs a clinic on attorneys general at Harvard Law School. “This cannot possibly be a surprise to the Biden administration.”

In a recent conversation, Randall Kennedy, Michael R. Klein Professor of Law at Harvard Law School, answered critics of his work, described his politics, and explained why his hopes for racial equality in the U.S. have dimmed.

It only took 42 minutes for an all-male jury to convict Mary Ware Dennett. Her crime? Sending a sex education pamphlet through the mail. Charged with violating the Comstock Act of 1873—one of a series of so-called chastity laws—Dennett, a reproductive rights activist, had written and illustrated the booklet in question for her own teenage sons, as well as for parents around the country looking for a new way to teach their children about sex. ... “One of the reasons the Dennett case hasn’t gotten the attention that it deserves is simply because it was an incremental victory, but one that took the crucial first step,” says Laura Weinrib, a constitutional historian and law scholar at Harvard University. “First steps are often overlooked. We tend to look at the culmination and miss the progression that got us there.”

Federal prosecutors pursuing the biggest university admissions fraud in U.S. history had a “raging debate” over whether to target the scheme’s mastermind or use him to go after the wealthy parents accused of buying their kids’ way into college. ... Lelling has come in for some criticism of his decision to flip Singer against the parents — first-time, nonviolent offenders who couldn’t have engaged in the scheme without him. Nancy Gertner, a retired federal judge in Boston, finds it “troubling” that the government let the “ringleader” cooperate and went after the parents. The strategy, which Gertner called a waste of resources, may also mean a lesser sentence for Singer than for some of the parents, sending the wrong message to other con artists, she said. “Are you trying to deter the parents who are taking advantage of what Singer has offered to them, or are you trying to deter the guy who really worked out the scheme from beginning to end?” said Gertner, a senior lecturer at Harvard Law School. “It’s like the major drug dealer who ends up rolling on the street dealers. The question is whether the deterrent value would have been better if they had gone to the mastermind of the scheme.”

Harvard Law professor Cass Sunstein is best known as co-author, with Nobelist Richard Thaler, of the multi-million selling book Nudge. The idea that the behaviors of citizens and employees can be steered in a way that is beneficial to them have taken root worldwide. Today, there are hundreds of behavioral science teams, often called “nudge units,” in governments and corporations around 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. GAZETTE: You talk in your book about your family history. How has it informed your views on race? KENNEDY: My family history has been profoundly influential on my views on race. I was born in Columbia, South Carolina, but I grew up in Washington, D.C., because my parents were afraid for their future in South Carolina. I asked my father once why he moved. His response to me was, “Because either a white man was going to kill me or I was going to kill a white man.” That’s why I grew up in Washington, D.C. Race was a constant topic of conversation in my household.

Like many ravaging storms that came before it, Hurricane Idaexposed the fragility of Louisiana’s power grid, knocking out electricity to hundreds of thousands of people and businesses, including nearly all of New Orleans. It also laid bare growing doubts about the ability of the state’s largest energy provider to protect against the effects of climate change, including the increasingly destructive weather it causes. ... Ari Peskoe, the director of the Electricity Law Initiative at Harvard Law School, said Entergy is “an extreme example” among old-school utilities that stand to lose from the building of regional transmission lines. “There is an incentive mismatch between what’s good for the public versus what a utility might want to do, which is to protect its legacy power plants that it can still make money off of,” Peskoe said.

According to Clinical Professor Emily Broad Leib, director of the Harvard Food Law and Policy Clinic, the tendency in the U.S. to equate "food safety" with freedom from illness doesn’t account for other ways the food system can harm individuals.

The Securities and Exchange Commission voted Wednesday to propose several new rules related to institutional investment funds’ votes on proxy proposals, including whether they support companies’ compensation packages for their top executives. ...Voting behavior of large investment vehicles like index funds and exchange-traded funds has come into greater focus in recent years as passive investing has grown in popularity. Researchers Lucian Bebchuk and Scott Hirst recently estimated that by the end of 2019, the largest three index fund managers — BlackRock Inc. BLK, -0.46%, State Street Global Advisors STT, -0.31% and the Vanguard Group owned on average 21.4% of the shares of S&P 500 index corporations. “The stewardship decisions of index fund managers — how they monitor, vote and engage with their portfolio companies — are likely to have a profound impact on governance and the performance of public companies and the economy,” they wrote in a February working paper.

Historian, professor, and author Annette Gordon-Reed has been awarded the 2021 Governor’s Award in the Humanities from Mass Humanities. Gordon-Reed, the Carl M. Loeb University Professor at Harvard, won the Pulitzer Prize and the National Book Award for her 2008 book “The Hemingses of Monticello: An American Family” (Norton). She’s also been the recipient of a Guggenheim Fellowship, the National Humanities Medal, and a MacArthur Fellowship, among other prizes and awards. Mass Humanities awards the prize each year, recognizing the recipients’ “public actions, grounded in an appreciation of the humanities, to enhance civic life in the Commonwealth.” Gordon-Reed will be honored, alongside three other recipients — John Burgess, Sonia Nieto, and Heather Cox Richardson — in a virtual awards ceremony on October 24 at 5 p.m. For more information, visit masshumanities.org.

On March 11 of this year, one of the most important auctions in recent years took place at Christie’s – in complete silence. There was no heated bidding, and nothing went under a noisy hammer, but large sums were still changing hands: the artist known as Beeple sold his work “First 5000 Days” for $69.3 million. ... Before making history at Christie’s, the average value of a Beeple work hovered around $100. “Digital artists couldn’t sell their art like those working in the physical world. NFTs have ended that discrimination,” explained Primavera De Filippi, a researcher at Harvard University’s Berkman-Klein Center for Internet & Society and the French National Center for Scientific Research. De Filippi has an optimistic view of the technology, and believes that it has enhanced the work of artists such as Beeple by replicating the limitations of the physical world to drive up prices: “NFTs have artificially created a form of digital scarcity and this enhances the value of a work,” she said. NFTs have introduced new artists to the art market, she believes, and also introduced new buyers.

An article by Jeannie Suk Gersen: Earlier this year, Brandeis University’s Prevention, Advocacy, and Resource Center released a “Suggested Language List,” developed by “students who have been impacted by violence and students who have sought out advanced training for intervening in potentially violent situations.” The students’ purpose, they wrote, was “to remove language that may hurt those who have experienced violence from our everyday use.” They proposed avoiding the idioms “killing it,” “take a stab at,” and “beating a dead horse.” I was struck that one of the phrases they recommended avoiding was “trigger warning,” and that the proffered explanation was sensible: “ ‘warning’ can signify that something is imminent or guaranteed to happen, which may cause additional stress about the content to be covered. We can also never guarantee that someone will not be triggered during a conversation or training; people’s triggers vary widely.”

YouTube said on Wednesday that it was banning the accounts of several prominent anti-vaccine activists from its platform, including those of Joseph Mercola and Robert F. Kennedy Jr., as part of an effort to remove all content that falsely claims that approved vaccines are dangerous. ...“One platform’s policies affect enforcement across all the others because of the way networks work across services,” said Evelyn Douek, a lecturer at Harvard Law School who focuses on online speech and misinformation. “YouTube is one of the most highly linked domains on Facebook, for example.”

... I’ve been writing a lot recently about the price you face as a consumer and a citizen for being trapped in a Big Tech economy. Here’s one it’s not too late to stop: Letting tech giants make your smart home more dumb. Their monopolistic mind-set makes your home more complicated, leaves you less choice and less privacy, and already resulted in less-capable smart speakers. ... Asking the most powerful companies in history just to have “elbows that are less sharp” isn’t going to work, said Harvard Law Professor Jonathan Zittrain during the Senate’s June hearing. “They’re trying to compete and they owe their shareholders that duty. Let’s set up the rules so that they know how to play to the chalk, but not go beyond it.”

In the United States, “The primary way we define ‘food safety’ is, ‘If I eat this product today, will I be in the hospital in 24 to 72 hours?’” says clinical professor of law Emily Broad Leib. “But this doesn’t account for other ways that the food system produces health risks for members of the public,” including the lifelong risks of, say, developing type 2 diabetes after consuming sugary foods for decades, or the environmental effects of industrial farming, such as fertilizer runoff in waterways, which creates oxygen-free dead zones inhospitable to aquatic life. The single-minded emphasis on microbes like salmonella and E. coli, Broad Leib asserts, “means we’re under-regulating a bunch of other risks that have bigger health impacts.” As director of Harvard Law School’s Food Law and Policy Clinic, she engages law students in projects that investigate how U.S. law intersects with the broader food system, “from the first seed going into the ground, to someone’s plate or perhaps to a trashcan.” Her purview encompasses environmental impacts, worker safety, and even immigration as factors in food production.

... Legal scholars say that if Democrats don't make big changes to limit presidential authority, there's every reason to believe a future White House occupant will try to again push the boundaries of executive power. The consequences, some say, could be dire."Unless Congress soon reasserts some of its power to check the executive branch, the odds that our democracy will last more than another decade or so seem, to me, depressingly low," said Laurence Tribe, a constitutional-law professor at Harvard. The legislation from Schiff and other House Democrats, Tribe said, would "restore the system of checks and balances that has kept our republic afloat through the most turbulent times."