Media Mentions

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.”

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.