Media Mentions

Over the last few years, Section 230 of the 1996 US Communications Decency Act has metamorphosed from a little-known subset of regulations about the internet into a major rallying point for both the right and left. So when Democrats unveiled their attempt to overhaul the law on Friday, the technology world took notice. There have been other suggestions for how to change Section 230, and many threats from President Trump while he was still in office—but the bill, announced on Friday by Senators Mark Warner, Mazie Hirono, and Amy Klobuchar, appears to be the most significant step yet toward genuinely reforming it...The problem of online abuse and misinformation became impossible to ignore over the last year, with harmful online conspiracy theories fueling the pandemic, and political lies threatening the election. That culminated in January, when the violent assault on the US Capitolwas fanned by online groups and by Trump himself...The proposals are a “recipe for a bit of a mess” agrees Jonathan Zittrain, a professor of international law at Harvard Law School. He suggests that it may be more important to come up with common standards “to establish what is or isn’t actionable” to make sure that frivolous cases from ill-intentioned complainants do not get turned into vast, expensive lawsuits.

An op-ed by Cass Sunstein: The U.S. Supreme Court is strongly committed to the “marketplace of ideas.” It tends to believe, in the words of Justice Louis Brandeis, that the remedy for falsehoods and fallacies is “more speech, not enforced silence.” If you believe that, you might also believe that if people lie about Covid-19, the 2020 presidential election, a politician, a journalist, a neighbor — or you or me — nothing can be done. Sure, you can answer with “counterspeech”: the truth. And that’s it. The problem is in many cases, counterspeech is ineffective. Lies lodge in the human mind. They are like cockroaches: You can’t quite get rid of them. This psychological reality raises serious questions about current constitutional understandings and also about the current practices of social media platforms, including Facebook, YouTube and Twitter, in trying to stop falsehoods. Ironically, those understandings, and those practices, may themselves be based on a mistake of fact — something like misinformation. In United States v. Alvarez, decided in 2012, the Supreme Court appeared to rule that lies and lying are protected by the First Amendment. The court struck down a provision of the Stolen Valor Act, which makes it a federal crime if you claim, falsely, that you won the Congressional Medal of Honor. According to the court, that provision is unconstitutional; the government cannot punish that lie.

Taking aim at a key plank of the former president’s impeachment defense, the lawyers argued that the constitutional protections do not apply to an impeachment proceeding...Signed by Charles Fried, Martha Minow, Gerald Neuman, and Laurence Tribe.

The common ownership hypothesis suggests that when large investors own shares in more than one firm within the same industry, those firms may have reduced incentives to compete. Firms can soften competition by raising prices, reducing investment, innovating less, or limiting entry into new markets. Empirical contributions document the growing importance of common ownership and provide evidence to support the theory...Our analysis clarifies widespread misconceptions about the mechanism of common ownership. For example, in a series of award-winning papers, Lucian A. Bebchuk, Alma Cohen, and Scott Hirst have argued that because common owners such as index fund managers have “incentives, which would lead them to limit intervention with their portfolio companies […] it is implausible to expect that index fund managers would seek to facilitate significant anticompetitive behavior.” Our framework explains why common owners have an incentive to remain passive and not to intervene with portfolio companies, so we agree with the first part of that statement. However, it does not follow that this passivity makes the anticompetitive effects of common ownership implausible. In fact, it is precisely the lack of intervention when setting high-powered incentives for top managers or “excessively deferential treatment of managers,” as Bebchuk and Hirst call it that leads to less competitive product market behavior.

An essay by Jeannie Suk Gersen: Donald Trump is no longer the President of the United States. That is a tremendous relief. It is also the centerpiece of his defense in his upcoming impeachment trial, his second in thirteen months. Scarcely five weeks after the insurrection on the Capitol, the same Senate chamber that was desecrated by Trump’s followers (with one rioter even declaring at the dais that Trump won the election) will be the court of impeachment, to try Trump for “inciting violence against the Government of the United States.” Last week, Senate Republicans tried unsuccessfully to prevent the trial from going forward, by claiming that it is unconstitutional for the body to try a President who is no longer in office. Forty-five Republicans voted to quash the trial on that basis—including Mitch McConnell, who, as Majority Leader, made clear that a Senate trial could not begin before Trump left office. Their ability to rally around that uncertain constitutional argument—and to avert their eyes from the question of Trump’s guilt—appears likely to keep him from becoming the first impeached President to be convicted in the Senate. The Constitution’s Article I, which gives the Senate the “Power to try all Impeachments,” says that the remedy for a conviction “shall not extend further than to removal from Office, and disqualification to hold” federal office. A separate provision, in Article II, says, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

An op-ed by Ben Waldman ‘23: President Biden’s first foreign policy address at the State Department Thursday ended with a novel message: He will pursue a “foreign policy for the middle class.” While his speech included its fair share of important policy announcements, the most critical portion was rhetorical. He provided vivid examples of how his approach to the world—and U.S. global engagement generally—will benefit working American families. While talk of acting in the “national interest” isn’t new, the president began today what could be a renaissance of presidential communication on America’s role around the globe. Biden could be the first president since the end of the Cold War to communicate clear foreign policy goals to domestic audiences. Thursday’s speech should be the beginning of an enduring domestic messaging campaign, aimed at reinvigorating a healthy and realistic national awareness of American global engagement. As previous presidents have done, Biden used the occasion of his speech to communicate American policy to those aboard, who were no doubt listening intently. After telling the world that “America is back” and “Diplomacy is back,” he honed in on rising authoritarianism. He forcefully condemned the recent military coup in Myanmar, which was justified with baseless claims of a fraudulent election. Without directly addressing the capitol riot, the president decried any attempt to subvert the results of a democratic election with violence.

The “intellectual sword” Bruce A. Kimball and Daniel R. Coquillette ’71 recount in their excellent history about much of Harvard Law School's second century, defined the institution: its hyper-competitive student culture, its confrontational pedagogy, and its extraordinary influence on education.

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.”