Media Mentions

An op-ed by Noah Feldman: The impeachment defense brief of former president Donald Trump mostly consists of three elements, each of which I’ve addressed (and rejected) in previous columns: the purported unconstitutionality of trying the president once he is out of office; his supposed First Amendment rights; and his denial that he incited the attack on the Capitol. But there is something new in the brief: the astonishing assertion that if the Senate tries Trump, it will have violated the constitutional rule against bills of attainder. What’s a bill of attainder? Funny you should ask! A bill of attainder, prohibited explicitly by the Constitution in Article 1, section 9, is a law adopted by the legislature that singles out a particular individual or class of people for punishment without trial. The category has been analyzed and defined by the Supreme Court over the years, starting in the aftermath of the Civil War and most recently in a 1977 case involving Richard Nixon’s papers. It’s got nothing to do with the situation faced by Trump in his Senate trial. To start with, a bill of attainder is, as its name suggests, a bill — the kind of legislative act that only has effect when it is adopted by both houses of Congress and signed into law by the president. Impeachment and removal, by contrast, can be accomplished by Congress alone. So it’s legally wrong for Trump’s lawyers to say that conviction by the Senate counts as a bill of attainder. The Senate isn’t voting on any such bill; it’s trying Trump. And President Joe Biden has no role whatsoever in the process.

A podcast by Noah Feldman: Alexis Goldstein, a former Wall Street trader and senior policy analyst at Americans for Financial Reform, discusses why GameStop’s wild ride is not actually a David vs. Goliath story. She discusses the underlying conditions revealed by the GameStop saga, and imagines alternative ways to regulate the markets.

An op-ed by Ashley Nunes: Big oil is in the hot seat. Again. Two weeks ago, the US Supreme Court heard arguments on whether a lawsuit brought by Baltimore city officials against oil companies belongs in state courts, which favours the plaintiffs, or in federal courts, where oil companies stand a better chance of winning. A ruling on the case — expected later this year — could cost (or save) the industry billions. The impetus for this and many other fossil-fuel related lawsuits is climate change. Plaintiffs want oil companies to pony up cash because company executives knew — and didn’t tell us — that fossil fuels harm the environment. Court filings by some plaintiffs describe, “cascading social and economic impacts,” like rising sea levels and deadly heat waves, all of which are tied to the burning of fossil fuels. Had oil execs admitted the truth sooner, so the reasoning goes, we’d all be saved.  To be sure, the link between fossil fuel use and climate change is irrefutable and the oil companies have long known about it. In 1954, geochemists from the California Institute of Technology warned industry leaders that burning fossil fuels was responsible for rising global temperatures. Noted physicist Edward Teller voiced similar sentiments in 1959, as did researchers from Stanford in 1968. By 1988, even the oil industry’s own scientists were concerned that burning fossil fuels could produce “significant changes in sea level, ocean currents, precipitation patterns, regional temperature and weather”.

Harvard constitutional law professor Laurence Tribe has poured cold water on the free speech defense being put forward by former President Donald Trump’s legal team ahead of his Senate impeachment trial for inciting the deadly U.S. Capitol riot. Trump impeachment counsel David Schoen argued in an interview with The New York Times on Tuesday that the former president’s provocative comments to his supporters before they ransacked the Capitol on Jan. 6, for which the House impeached Trump for a second time last month, was actually protected by the First Amendment. “We can’t control the reaction of the audience,” Schoen was quoted as saying. CNN’s Erin Burnett on Tuesday asked Tribe if the defense would work. “I don’t think so. It’s a very serious point, but it’s wrong,” Tribe replied. Tribe said he recognized “there is a difference between the right of an ordinary citizen to express herself passionately and the right of someone to run for president, take the oath as president and then stand by the presidential seal in front of the White House and urge an angry mob to burn it down.” The “usual trope about yelling ‘fire’ in a crowded theater, which isn’t within your rights of free speech, doesn’t quite capture” the severity of Trump’s rhetoric that whipped his supporters into a frenzy ahead of the riot, he added.

The new Administration’s commitment to Environmental, Social, and Governance (”ESG”) issues begs the question of a business’s end goals. We deserve an open and honest debate. Will we get one? What should be a business’s end goal? Over the last 50 years, two competing approaches have duked it out...In August 2019, a Business Roundtable press release proudly announced that the “Business Roundtable Redefines the Purpose of a Corporation to Promote ‘An Economy That Serves All Americans.’” Delaware law notwithstanding, was this game, set, and match for High Idealism? Not exactly. In a Wall Street Journal Op/Ed, Harvard Law School professor Lucian Bebchuk challenged the sincerity of Roundtable statements. He noted that of the approximately 184 global companies whose CEOs had signed or endorsed this statement, only one company had had the statement approved by the Board of Directors, a corporation’s highest policy-making body. The Roundtable’s announcement was even inconsistent on its face. Roundtable CEOs run global companies: if they really wanted to move from serving shareholders to serving stakeholders, why limit the benefits to “All Americans”?

What if Tesla founder and CEO Elon Musk had taken the company private in 2018, as he threatened to do? This question about Tesla TSLA, -1.18% is of more than just historical interest. It goes to the heart of the debate over whether Wall Street’s obsession with short-term results is harmful to long-term performance...At the time, Musk suggested that Tesla’s private valuation would be about $70 billion. While we’ll never know how Tesla would have fared had Musk followed through, it’s difficult to imagine that it would have done better than it has as a public company...Also consider the argument made in the current issue of Harvard Business Review, by Lucian Bebchuk, professor of law, economics, and finance at Harvard Law School and director of its Program on Corporate Governance. He writes: “Over the past two decades, as dire warnings regarding short-termism have proliferated, growth companies — whose value largely reflects expectations about their payoff in the long term —have enjoyed substantial appreciation in value… [They are] trading at high price/earnings ratios, reflecting the willingness of the markets to attach great value to companies on the basis of their future prospects rather than their current earnings.” It would be just the opposite, of course, “if investors were systematically underestimating long-term prospects.”

The Depository Trust + Clearing Corp. is unpopular with the trading bros on r/WallStreetBets for its role in short-circuiting the short squeeze in GameStop Corp. shares. But you don’t have to care about the raucous GameStop gamers and their “diamond hands” to be concerned about the DTCC’s intervention in the episode. Clearinghouses are intermediaries that make sure sellers of securities get paid, and buyers of securities get what they paid for. Here’s the problem in a nutshell, according to several market experts: The DTCC and its three clearing subsidiaries are focused exclusively—and understandably—on protecting the markets they serve. When risk increases, the clearinghouses demand more collateral from their customers as a safety buffer. But that collateral has to come from somewhere. So making the DTCC clearinghouse safer could leave other parts of the financial system with thinner safety buffers...This is not a new concern. In a 2013 article for the California Law Review, Harvard Law School professor Mark Roe wrote that clearinghouses “are efficient financial platforms in ordinary times” but “do little to reduce systemic risk in crisis times.” That’s because, he wrote, “The major reduction in risk among the inside-the-clearinghouse traders is largely achieved by pushing that risk elsewhere, often to a systemically dangerous spot.” The risk, in other words, is like a balloon that expands in one place when squeezed in another.

After years of deregulation by the Trump administration, for-profit colleges are bracing for a major reckoning as consumer advocates and lawmakers pressure the Biden administration to take action. “For four years under President Trump and Secretary DeVos, the for-profit college industry had an outsized voice and influence at the Department of Education,” Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School, told Yahoo Finance. “The Trump administration repeatedly sided with this predatory industry and against the very students our government is supposed to serve. That must end.” Former Education Secretary Betsy DeVos loosened several Obama-era regulations intended to hold for-profit schools accountable, including rules based on whether their graduates were able to repay their student loans and how information about colleges was presented on department’s website.

An op-ed by Noah Feldman: Legislatures across the U.S. are considering more than 100bills aimed at restricting voter access, according to a report by the Brennan Center for Justice. The bills represent a direct, partisan reaction to the Democrats’ success in the 2020 election, when high turnout and mail-in voting powered blue victories in closely divided states like Georgia, Arizona and Pennsylvania. How likely are these bills to pass, and how likely are the ones that become law to survive legal challenges? Unfortunately, I don’t have good news for liberals on either of these questions. Where partisan gerrymandering favors Republicans in state legislatures, there is little to stop these bills from passing, or voters from punishing legislators for enacting them. In states where Republican legislators have used sophisticated computer technology to draw districts that systematically favor Republicans, Republicans can expect to keep control of many state legislatures even where the state’s overall voting is trending Democratic. Democrats’ only failsafe is veto by state governors, who are elected statewide. But in closely divided states, governors are as likely to be Republican as Democratic. In Arizona and Georgia, both the legislature and governor are Republican.

An op-ed by Cass Sunstein: In the impressively detailed memorandum on “scientific integrity” that President Joe Biden recently released, one provision could easily escape notice. It’s an explicit endorsement of behavioral science — and it calls for much more of it. The provision requires the director of the Office of Management and Budget to produce, within 120 days, “guidance to improve agencies’ evidence-building plans and annual evaluation plans.” It calls out President Barack Obama’s Executive Order 13707, issued in 2015, which has guided the use of behavioral science by government officials. Biden’s memorandum instructs the OMB director to build on that order and to work toward better practices. According to the memorandum, those practices “might include use of pilot projects, randomized control trials, quantitative-survey research, and statistical analysis.” In general, the goal is to build on “approaches that may be informed by the social and behavioral sciences and data science.” There’s a strong signal here. Obama’s agencies, including his Social and Behavioral Sciences Team, used behavioral sciences to produce creative solutions to policy problems.

Welcome to Business School Briefing. We offer you insights from Andrew Hill and Jonathan Moules, and the pick of top stories being read in business schools...Last week I asked what questions you'd pose to board directors as part of an evaluation. Sandra Pickering, inspired by Gerry Brown, author of Making a Difference, about being an independent director, suggests asking "What is the most toxic belief in your boardroom?" as a way of working out whether the board is even able to speak out about dangerous issues.In further reading, the always provocative Lucian Bebchuk's Harvard Business Review essay about what he says are the overstated perils of short-termism: "Those who are concerned about short-termism should focus on reforming [executive] pay arrangements before considering the adoption of measures that would insulate managers and bring about such costs," he argues.

TRUMP IMPEACHMENT: ‘His coup failed. But the next one might succeed’ — Legal scholar Laurence Tribe said not removing and disqualifying ‘someone who is a deadly threat’ would present an ‘existential danger’ to the country.

Harvard constitution law professor Laurence Tribe shot down the Trump impeachment counsel’s signaled First Amendment defense of Donald Trump in next week’s Senate trial for inciting an insurrection. Spinning off the “Can’t yell ‘Fire!’ in a crowded theater” trope about the limits of free speech, Tribe compared the former president’s incendiary, false claims to “being the fire chief and urging a mob to burn the theater down.” Speaking with CNN’s Erin Burnett on Tuesday night, Tribe, who has assisted the House Democrats’ impeachment team, spoke in response to a brief, New York Times interview with Trump impeachment counsel David Schoen. The lawyer cited the former president’s right to speak his mind and shifted the blame for the Capitol riot fully on those allegedly misinterpreted Trump’s comments: “We can’t control the reaction of the audience.” “It’s a First Amendment defense. Will it hold up?” Burnett asked. “I don’t think so. It’s a very serious point, but it’s wrong,” Tribe said. “I don’t know anybody who is a stronger First Amendment advocate than I am, but I fully recognize that there is a difference between the right of an ordinary citizen to express herself passionately and the right of someone to run for president, take the oath as president and then stand by the presidential seal in front of the white house and urge an angry mob to burn it down. To go to the Capitol and basically take it over.”

A group of House Democrats overseeing the impeachment case against former President Donald Trump laid out their argumentTuesday morning on the constitutionality of impeaching Trump for allegedly inciting the deadly Capitol riot during the counting of Electoral College votes on Jan. 6. Trump was impeached by the House on Jan. 13 on an incitement charge for his role in the attack that left at least five people dead and led to federal criminal charges against more than 90 individuals. He’s now set to stand trial in the Senate on Feb. 9... “The House memo dispatches that ‘protected speech’ argument neatly,” Harvard Law professor and constitutional scholar Laurence Tribe, whose work is cited in the memo, told Yahoo News via email, “explaining why the protections for speech by private citizens have no place in the context of impeaching a former president and why the standards of Brandenburg v. Ohio, even if applicable, would be easily met by the way Trump actively aimed an angry mob at the Capitol, incited their attack on lawmakers and police, and then sat by and watched the havoc the mob wrought without lifting a finger to stop the devastation, something a private citizen would’ve been powerless to do but that a sitting president could easily have done.”

Even as the Biden administration has moved aggressively to undo Donald J. Trump’s policies and dislodge his loyalists from positions on boards and civil-service jobs, it has hesitated on a related choice: whether to remove two inspectors general appointed by Mr. Trump under a storm of partisan controversy. At issue is whether the new administration will keep Eric Soskin, who was confirmed as the Transportation Department’s inspector general in December, and Brian D. Miller, a former Trump White House lawyer who was named earlier in 2020 to hunt for abuses in pandemic spending. Both were confirmed over intense Democratic opposition after Mr. Trump fired or demoted a number of inspectors general last year,saying he had been treated “very unfairly” by them...Still, Jack Goldsmith, a Harvard Law School professor who co-wrote a book proposing post-Trump reforms to government, said that no matter how well Mr. Biden might couch a justification to remove such an inspector general, it would further damage the notion that presidents ought not remove them without cause. “If Biden refrains from firing Senate-confirmed but disfavored inspectors general, that will buck up the norm of independence,” Mr. Goldsmith said. “The ostensible norm is not an actual norm if it doesn’t constrain the president in painful ways.”

Despite “defund the police” slogans, progressives actually have a robust policing agenda. We want the EPA to crack down on polluters who kill an estimated 100,000 Americans each year. We want to prevent financial firms from repeating the mass fraud that crashed the economy in 2008. We want to stop employers from killing their employees through unsafe work conditions. We want wealthy individuals and corporations prosecuted for the estimated half-trillion dollars in tax evasion each year. And we want victims of wage theft to get justice for the estimated $50 billion in wages stolen from them by employers annually...The Biden administration, states, and local governments need to develop a more comprehensive message and strategy on combating corporate crime—and need to ramp up indictments and prosecutions, which would make it easier for the public to realize that these are criminal acts. Most people reflexively see corporate crime as a civil, not a criminal, matter. It’s precisely that which needs to change. “Everyone understands very clearly that if an employee embezzles from an employer, that is criminal,” argues Terri Gerstein at Harvard Law’s Labor and Worklife Program. “When the employer doesn’t pay their workers, that is a crime as well.”

President Biden has vowed to reverse many of the immigration policies put in place by his predecessor. It’s a process that could take months or even years, but he’s starting with a number of executive orders expected today. Plus, is it constitutional to impeach a former president? And, the ominous sign when a country cuts its people off from the Internet. Guests: Axios' Stef Kight and Dave Lawler, and Noah Feldman, Harvard Law professor and host of Deep Background.

An op-ed by Vivek Wadhwa and Alex Selkever: History is likely to repeat itself with President Joe Biden’s immigration proposal. Yes, the plan is laudable for its twin goals of providing a path to citizenship for the roughly 11 million undocumented immigrants and reinstating visas for highly skilled workers. But as the idiom goes, this dog won’t hunt. That’s because both sides of the aisle in the U.S. Congress will find aspects of the legislation objectionable. Even if the Democrats eliminate the filibuster so they can pass legislation with their ever-so-slim control of the Senate, Democratic lawmakers themselves are unlikely to reach a consensus, as experience shows. This is a repeat of the political battles of the Obama years, when the Republicans staunchly supported skilled immigration while the Democrats held U.S. companies and their would-be workers hostage to demands to provide citizenship to the undocumented. The Democrats have also battled each other, as when Sen. Dick Durbin held up bipartisan legislation to remove discriminatory per-country limits on visas, which led immigration-advocacy groups to call him a racist. Sadly, the results of the Biden plan will be the same: warfare between and within the parties; no immigration reform; and a further demolition of U.S. competitiveness. There is a simple solution: Separate skilled and unskilled immigration into separate bills—and let each piece of legislation stand on its own merits.

An op-ed by Ashley Nunes: Canadian airlines are set for a windfall. Sort of. Ottawa is teeing up a bailout package – one that could see carriers receive millions in taxpayer cash. They could certainly use it. The coronavirus pandemic has hit airline revenues hard with some carriers edging close to bankruptcy. Lawmakers need these companies to thrive, not fail. Air travel is after all, to our generation what horses and buggies were to previous ones. But taxpayers want something too: refunds. As the pandemic cripples economies worldwide, thousands of Canadians remain stuck with tickets in hand and no place to go. I’m one of them. Air Canada promptly cancelled my flight last April citing coronavirus concerns. But rather than refunding my money, the carrier offered a travel voucher – one that could be used towards future travel. The move doesn’t irk me. Airlines are cash-intensive businesses where expenses often exceed earnings. I would know. I spent years in the industry looking over balance sheets. I concur with the industrywide sentiment that “running an airline is like having a baby: fun to conceive, but hell to deliver.” That explains why I’m probably more willing than most to give airlines some leeway. A travel voucher is – I would argue - a reasonable alternative to a full refund. That sentiment has since fizzled. Anticipating travel later this fall, I tried redeeming my voucher on Air Canada’s website. The airline’s response? “Please allow up to six weeks for processing.”

An op-ed by Jody Freeman: General Motors’ announcement last week that it will stop making gas-powered cars, trucks and sport utility vehicles by 2035 and become carbon neutral by 2040 is even bolder than it sounds: The repercussions will ripple broadly across the economy, accelerating the transition to a broader electric future powered by renewable energy. The pledge by the nation’s largest automaker to phase out internal combustion engines puts pressure on other auto companies, like Ford and Toyota, to make equally ambitious public commitments. It follows an earlier announcement by G.M. that it would invest $27 billion in electric vehicles over the next five years. While every major auto company is investing in zero- and low-emission vehicles, amounting to $257 billion worldwide through 2030, until now none had been willing to say when they would end production of gas-powered cars. Wall Street rewarded G.M.’s clarity by bumping its stock. Now investors will expect the rest of the industry to explain how their electric vehicle strategies measure up. G.M.’s decision is a sea change. For decades, the company and other automakers resisted pollution rules. As recently as last year, G.M. supported the Trump administration’s relaxation of fuel efficiency standards, only to make an about-face after the November election. When one of the most recalcitrant and iconic American companies so markedly changes its tune and embraces the clean-energy transition, something big is happening. Pressure will undoubtedly mount on oil and gas companies, among others, to produce credible energy transition plans of their own.

A virtual gathering titled “The Events of January 6 and the Future of American Democracy” featured HLS Professor Richard Fallon and other Harvard experts assessing the damage done by the Jan. 6 riots at the U.S. Capitol.