Media Mentions

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.

The Senate vote showing 45 Republican senators willing to brush off the impeachment trial makes it more imperative than ever to have a criminal trial on the merits in a setting where evidence can be taken seriously and spurious objections dismissed. Adding to the urgency of a criminal proceeding is former president Donald Trump’s decision to sack most of his legal team, headed by Karl S. “Butch” Bowers, with just a little more than a week before his Senate trial...A criminal trial could provide a severe deterrent for future presidents who attempt to retain power through violence. It is not enough to mouth the empty platitude that the ex-president’s behavior was “unacceptable” if there are no adverse consequences. Without punishment, his failed coup would remain an open invitation to future presidents to try the same sort of power grab. Constitutional scholar Laurence Tribe observes, “Impeachment is about getting rid of officeholders who endanger the republic by abusing their powers, not about punishing them for their crimes. Punishment still must be meted out if the rule of law is to be respected and wrongdoers are to be held accountable.”

Former President Donald Trump’s last-minute remake of his impeachment defense team leaves little time to prepare for arguments that are scheduled to start next week in the Senate trial over whether he incited the Jan. 6 insurrection at the U.S. Capitol. Trump announced on Sunday night that attorneys David Schoen and Bruce L. Castor Jr. will head his defense, after his previous lawyers led by Butch Bowers of South Carolina withdrew, with Trump’s initial response to the impeachment charge due Tuesday and the trial set to start Feb. 9...Jonathan Turley, a George Washington University professor who spoke on a Republican caucus call last week right before most senators voted that trying a president out of office is unconstitutional, said it’s reasonable for Trump to seek a trial delay to give new attorneys time to prepare if he wants it. But it’s not clear that Democrats would agree to such a request. Senate Democrats already pushed the start of the trial back two weeks to allow President Joe Biden some time to install his cabinet. Harvard University law professor Laurence Tribe said such a move would essentially allow Trump to “run out the clock” by retaining new lawyers. “No competent judge would let a defendant play this kind of endless game and essentially give the defendant control over the timing of the proceeding,” said Tribe, a frequent Trump critic.

Former President Trump left office as numerous lawsuits against him and his administration still hung in the balance, a result that legal experts say was part of a calculated strategy to run out the clock and avoid accountability while in the White House. By dragging his feet in court, Trump evaded subpoenas for his tax returns and dodged a final ruling on whether his continued business dealings violated the Constitution’s ban on profiting off the presidency. His administration also upended the legal process, experts say, by treating emergency requests to the Supreme Court as a standard litigation move, often with success...Some legal actions focused on Trump, like efforts to obtain his tax returns, are expected to continue post-presidency. But experts say that while he was in office, Trump's drain-the-clock strategy allowed him to avoid accountability and carry out policies before their lawfulness was ultimately resolved, leaving key questions about executive power unanswered as President Biden took office Jan. 20...Mark Tushnet, a Harvard Law professor, said Trump’s approach worked in part due to some of the legal vulnerabilities in these cases. Embedded in the emoluments disputes, for instance, were thorny questions about who had a legal right to sue. “Sometimes the claims about Trump's actions had some weak spots,” Tushnet said. “Maybe not enough to lead to an inevitable defeat for Trump, but enough to take up time in litigating.”

It is a curious fact about the human race, which often lays claim to rationality, that some of the most important issues in life are undiscussable. It is less well known that major corporations face a similar issue concerning their most important question, namely what is their goal? In 1997, big business declared through the Business Round Table (BRT) that their goal was to maximize shareholder value. But 22 years later, in August 2019, in the face of increasingly severe critiques, more than 200 CEOs from major corporations signed a new BRT declaration renouncing the goal of shareholder value and embracing stakeholder capitalism. According to the new declaration, these firms plan to be pursuing the interests of all the stakeholders. Yet, according to studies made by Harvard Law Professor Lucian Bebchuk and his colleagues, there is no evidence that the firms in question have made any change in their actions since the 2019 declaration. Bebchuk concludes that the 2019 BRT declaration was “only for show.” In effect, we are dealing with a smokescreen: the goal of a major corporation has become undiscussable.

Social media services including Facebook Inc and Reddit restrict discussions about weapons, drugs and other illegal activity, but their rules do not specifically mention another lucrative regulated good: stocks. Some people think they should. Users of a Reddit group, in which 5 million members exchange investment ideas, generated significant profits by gorging on shares of GameStop Corp and other out-of-favor companies that had been shorted by big hedge funds...Social media companies are generally not liable for user activity under a statute commonly known as Section 230. Still, their rules bar illegal behavior like facilitating gun and drug transactions or distributing offensive content that could rile advertisers or generate calls for tighter regulation. Section 230 also has some carve-outs that in theory could lead to a tech company being penalized for user-generated content, including violations of federal criminal law, said Jeff Kosseff, a cybersecurity law scholar who wrote a book on the law...Harvard Law School professor Jesse Fried said the stock trading forums appear to be “purely legal behavior: irrationally exuberant buying by amateur investors.”

An op-ed by Cass Sunstein: It is already clear that President Joe Biden will be implementing a large number of his policies through executive action. The reason is equally obvious: Democrats control both houses of Congress, but with a 50-50 split in the Senate and thin majority in the House of Representatives, it will be challenging to enact ambitious legislation. Whether the issue involves climate change, Covid-19, occupational safety or civil rights, executive action might be the only game in town. Regulations are a primary vehicle for executive action, and they are often challenged in court. The federal judiciary now includes more than 200 judges chosen by former President Donald Trump. Won’t they be eager to strike down a lot of Biden’s regulations? It’s a fair question, but for the Biden administration, it’s less constructive to ask it than to take account of identifiable judge-made principles that regulators must respect. In recent years, the Supreme Court has issued two rulings that loom particularly large, and that could turn out to impose serious obstacles. The first of those rulings — a big setback for President Barack Obama — emphasizes the importance of cost-benefit analysis. The second — a big setback for Trump — underlines the need for agencies to give careful consideration to how disruptive a regulatory change might be to people who relied on the previous rules and requirements.

An op-ed by Jesse M. Fried and Charles C.Y. Wang: The European Commission recently released a sustainable corporate governance report claiming to find a problem of investor-driven short-termism, and proposing as a solution that power be shifted in EU-listed firms to other stakeholders. But the report’s findings are deeply flawed. And its proposed policies would, perversely, reduce business sustainability in the EU. As supposed proof of short-termism, the report points to rising levels of gross shareholder payouts — dividends and repurchases — and declining levels of investment. The claim: firms are increasingly showering cash on shareholders, stripping them of assets that could be used for long-term value creation. But the report mischaracterizes capital flows, mismeasures investment, and fails to consider firms’ cash balances. The actual data paint a very different picture. Start with capital flows. Oddly, the Commission’s report fails to account for equity issuances in measuring capital flows between firms and shareholders, focusing exclusively on flows in the other direction — dividends and repurchases. But as we have shown in a recent paper, stock issuances in the EU are substantial, far exceeding repurchases. During 2010-2019, for example, gross shareholder payouts represented 63% of net income. But equity issuances were almost half as large: 27% of net income. Thus, the ratio of net shareholder payouts to net income was 36%, a figure very similar to U.S. public firms.