Media Mentions

Every corporation is unique. It follows that governance arrangements should be tailored to suit. Yet many shareholders, especially indexers, roundly condemn certain governance practices as if one size fits all. Three corporate practices illustrate this: combining the roles of chairman and chief executive; staggered director terms, and classes of stock with different voting rights. Each is derided for valid abstract reasons, but all persist because they can be suitable at particular companies...Why might indexers and other critics universally condemn corporate practices that quality shareholders accept and that may enhance a company’s performance? Different business models may explain: indexers address the market as a whole while quality shareholders focus on specific companies. Indexers prescribe policies expected to benefit the overall market, on average, not particular businesses. The size and reach of indexers — commanding around one-third of public equity — give them outsized influence, and a wide critical following. But they have small stewardship staffs and minuscule budgets to address particular companies, according to research led by Harvard Law School’s Lucian Bebchuk — no more than 45 people covering  well more than 3,000 U.S. companies.

If you’ve been on Twitter lately you may have heard that there’s a possibility that President-elect Joe Biden would cancel some student debt — and you likely saw a lot of back and forth about the idea. Following a speech on the economy Monday, Biden told reporters that student-debt cancellation “does figure in my plan,” after being asked about it. Indeed, on the campaign trail, Biden proposed cancelling $10,000 in student debt as a coronavirus relief measure. Still, he stopped short Monday of saying he would cancel the debt without the help of Congress...Democratic Senators Chuck Schumer and Elizabeth Warren have said that cancelling up to $50,000 in student debt is something Biden can and should do immediately. Their urging is based in part on a legal memo written by lawyers at Harvard Law School’s Project on Predatory Student Lending, which notes: “The Higher Education Act gives the Secretary of Education the authority to cancel student-loan debt,” said Toby Merrill, the director of the Project and one of the memo’s authors. But even among those who support broad-based student-debt cancellation, there is some concern about doing it through executive action.

Thousands of traumatized veterans kicked out of the Army achieved a legal victory Wednesday after the Army agreed to review punitive discharges linked to mental health and sexual assault trauma, potentially unlocking care for those struggling in their post-military lives. In a lawsuit filed against Army Secretary Ryan McCarthy, a class of veterans argued that the Army should overhaul its process of reviewing discharge upgrade requests and review past denials under more generous guidelines. The Army agreed to a settlement that would achieve that, the Veterans Legal Services Clinic at Yale Law School said, with an approval pending by a federal judge...A study released in March found that the Department of Veterans Affairs has improperly turned away many thousands of veterans who may have qualified for medical care at their facilities. Bad paper discharges make it less likely that veterans can receive VA care, but the agency is required to look for mitigating circumstances, such as behavioral issues tied to trauma, when it decides to accept those veterans. Some veterans have gone decades without trying to receive care at VA, the Veterans Law and Disability Benefits Clinic at Harvard Law School concluded, after misconceptions about qualification and extenuating circumstances brewed within the agency itself.

President Trump fired the nation’s top election security official, Chris Krebs, Tuesday over his agency's recent statement that called the 2020 election "the most secure in American history" — a statement that undermined Trump’s political attempts to falsely spin his election loss into a story about election fraud. To discuss this and other attempts by the Trump administration to undermine the legitimate results of the election, Jim Braude was joined by Harvard Law Professor Emeritus Laurence Tribe.

Climate activists have set a high bar for President-elect Joe Biden's staff picks, asking that he exclude anyone with ties to fossil fuel industries. They've already been disappointed. Biden faced backlash this week after naming Louisiana Rep. Cedric Richmond to lead the Office of Public Engagement. Varshini Prakash, executive director of the Sunrise Movement, said it "feels like a betrayal" because Richmond "has taken more donations from the fossil fuel industry during his Congressional career than nearly any other Democrat." The oil and gas industry has been among Richmond's top campaign contributors over his career in Congress, according to Center for Responsive Politics...Among the names on the Biden transition's agency review teams a few have limited ties to fossil fuel, but more are from environmental groups. "When I look at that list I think the clear message is the Biden team wants good people in place, right from the start, who have experience in these agencies and are not wasting any time," says Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. She was a former counselor on energy and climate change in the Obama White House. Freeman is a good example of those who could be excluded if a Biden administration rejected people connected to fossil fuel companies. She sits on the board of oil company Conoco-Phillips, but she also led Obama's effort to double car fuel-efficiency standards. Freeman is also an expert on using presidential powers to address climate change, knowledge that likely will be necessary if both parties can't agree on new climate legislation when Biden is sworn in next year.

An op-ed by Noah Feldman: This week’s Michigan election theft scare lasted just about three hours — unless you were checking your screen in real time, it may have passed you by. Yet, brief as the episode was, when historians look back on this strange interregnum in which President Donald Trump has not acknowledged President-elect Joe Biden’s victory, they could do worse than to dig deep into the sorry affair. It carries important lessons about how delicate our system of electoral transitions is, and also about the social forces that preserve the system despite its sometimes precarious-seeming character. The historians will have to start with the weird institution at the heart of the events: the Wayne County Board of Canvassers. On Tuesday, two Republican election officials announced they would not agree to certify the county’s results before reversing themselves after a national outcry. The board has four members, two Democrats and two Republicans. They are technically appointed by the County Board of Commissioners to serve four-year terms. But in effect, they are political patronage appointees chosen by the state political parties. The two-and-two structure is a matter of courtesy. Wayne County, which includes Detroit, is overwhelmingly Democratic. All 83 boards of canvassers in Michigan have the same two-and-two structure. The board’s most important job is to certify the county’s election results. Ordinarily, this is a simple matter; so simple, in fact, that it wouldn’t be unfair to refer to the members of the canvassing board as functionaries. They are part of the vast apparatus of overwhelmingly reliable and conscientious election officials all across the U.S. — the same officials who presided over a remarkably clean electoral process in 2020.

An op-ed by Cass Sunstein: President-elect Joe Biden just got an excellent suggestion about how to approach regulation of food safety, clean air, clean water, highway accidents and occupational health. It comes from a brief but illuminating passage in “The Promised Land,” the new memoir by his former boss, President Barack Obama: “Those of us who believed in the government’s ability to solve big problems had an obligation to pay attention to the real-world impact of our decisions and not just trust in the goodness of our intentions. If a proposed agency rule to preserve wetlands was going to lop acreage off a family farm, that agency should have to take the farmer’s losses into account before moving forward.” For that reason, Obama believed in cost-benefit analysis — not as a numerical straightjacket, but as a way to apply science and economics to measurement of the real-world impact of decisions by government agencies. Suppose, for example, that a proposed regulation from the Department of Transportation, requiring vehicles to be equipped with a new technology to reduce crashes, would cost $900 million. What would we get in return for that expenditure? How many lives would be saved? Would it be worthwhile? In 2009, Obama appointed me as administrator of the White House Office of Information and Regulatory Affairs, and he directed me to focus intensely on those questions. During my four years in government, Obama asked me to try to quantify both benefits and costs — and to make sure that for every regulation that I approved, the former would be higher than the latter.

Samantha Power, the former U.S. Ambassador to the UN, joins Lawrence O’Donnell to explain how foreign actors like Vladimir Putin were unable to “delegitimate the democratic process” through foreign interference in the 2020 election and why fired Trump admin. official Christopher Krebs “did such important work keeping the election straight.”

An article by David Sanchez ‘22: As the plane touches down, the tires give off a screeching sound, the force of the braking sends loose items rolling, and the pilot welcomes the crowd to its destination. Most passengers feel a sense of excitement, relief, and maybe some lingering nausea. I always feel a bit of melancholy that the flight has come to an end. It means we’re back to Earth, where time resumes its steady march and the to-do list war reboots. If I’m lucky, this is just a layover. Then it’s back up to thirty thousand feet. The sky is a place, I've found, where I can do the type of deep thinking that the daily grind doesn’t allow. It’s where I go to reason through important decisions, consider radical solutions to messy problems, and reflect on life’s biggest questions. I made the call to move across the country for a new job in seat 5F on my way to San Francisco. I wrote my marriage vows in the exit row on a bumpy flight to Chicago. I considered moving back to Wisconsin to run for mayor of my hometown in a middle seat en route to the Dominican Republic. I find clarity in the clouds... Without flying in my life, I have been searching to replicate the time and space for serious reflection that long flights had wedged into a busy calendar. I’ve tried long morning walks, daily meditation, and stargazing. Once, I sat in the back seat of my parked car for an hour with no phone before a neighbor knocked on the window to see if I was locked in. Others are turning to rural Airbnbs, which have experienced 25% growth this summer, or are becoming first-time boat owners to escape the lockdowns. None of these come close to producing the same sense of controlled freedom I felt sitting on a lightly padded aluminum frame with thirty inches of legroom.

In the face of enormous obstacles, democracy looks likely to survive 2020. A record number of Americans went to the polls this year, despite spiking COVID-19 rates, rampant misinformation, and an ongoing campaign by the Trump administration to weaken America’s faith in the electoral process. In the end, the result was clear: Joe Biden won about 80 million votes nationally, more than any other candidate in history, defeating Trump by more than five million votes... “There was a real risk in this election of the country degenerating into a soft totalitarianism,” says Nicholas Stephanopoulos, a professor at Harvard Law School. “So getting rid of this president is very important. But we still have a long way to go towards perfecting our democracy.” ... Stephanopoulos argues that since there is no evidence of voter fraud, it is far more useful to focus attention on real, documented problems with our democracy. “I don’t worry about voter fraud because it isn’t true,” Stephanopoulos says. “Voter suppression and gerrymandering are not a figment of imagination: We can trace them.” ... Stephanopoulos notes that the main obstacle to any electoral reform is that it requires new legislation, which Republicans will likely block. “The American system is not designed to work well under conditions of polarization,” he says. “When you combine polarization with our checks and balances, it is almost impossible to get things done. Democrats will have to wait for landslide victories to enact sweeping changes that will make the political playing field fair.”

President Trump’s abrupt firing Tuesday of the country’s top election security official who publicly said Trump lost to president-elect Joe Biden in an election drew outrage from Massachusetts political science scholars and officials. Christopher Krebs, director of the Cybersecurity and Infrastructure Security Agency, had also said the Nov. 3 election was reliable and free of interference. Trump announced his firing on Twitter Tuesday night...Though other presidents have fired those they considered disloyal, and previous election results have been disputed, there are few parallels to Trump’s firing of Krebs simply for telling the truth, academics said...Daphna Renan, a professor at Harvard Law School, said the firing was “appalling — but, unfortunately, no longer surprising.” “Constitutional democracy depends on the integrity and leadership of officials like Christopher Krebs,” Renan said in an e-mail. “Regretfully, at the moment, it depends on their heroism as well in response to a reckless president intent on undermining our democracy.”

Everything in our lives this past month has existed at the intersection of the coronavirus, or the election. In the past two weeks, there's been a slew of legal questions around both. President Donald Trump refuses to acknowledge his defeat by President-Elect Joe Biden. And his team and other Republicans have turned to the courts, citing unverified and unproven claims of voter fraud in key battleground states. Plus, as the coronavirus surges nationwide and here in Massachusetts, there are renewed legal questions about the balance between individual freedom and actions state and federal government can take to curb infections and hospitalizations. We take listener calls with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's Legal Analyst. And with John Fabian Witt, a professor of law and history at Yale University, is author of the new book "American Contagions: Epidemics and the Law from Smallpox to COVID-19."

A podcast by Noah Feldman: Dr. Paul Offit, a professor of vaccinology at the University of Pennsylvania and member of the F.D.A.’s vaccine advisory panel, discusses how the Pfizer and Moderna vaccines work and how they could be distributed.

An op-ed by Evelyn Douek: There are many important questions that could be asked at the Senate Judiciary Committee hearing with tech CEOs today regarding their handling of the US 2020 election. Foremost among them should be “Where is Susan Wojcicki, YouTube’s CEO?” The election was billed as a major test for social media platforms, but it’s one that YouTube failed weeks before election day. The platform is playing host to, and is an important vector for, spreading false claims of election victory and attempts to delegitimize Biden’s win. YouTube had to have seen it all coming, and it shrugged. That’s YouTube’s fault—but it’s also a result of the success of its broader strategy to keep its head down and let other platforms be the face of the content moderation wars. In general, the media, researchers, and lawmakers have let this strategy work. YouTube is one of the biggest social media platforms in the country—indeed, a Pew Research Center survey last year found it was themost widely used. Over a quarter of Americans get news from the platform. There have been millions of views of videos with false claims of election results or voter fraud on YouTube since election day, with nothing more than a small, uniform label about election results attached beneath them. And yet, the platform often escapes scrutiny. Judging by much of the press coverage and public outrage about the role that social media platforms play in the modern information ecosystem, one could be forgiven for thinking that Facebook and Twitter were the only major sources of online information. This disproportionate focus goes beyond public narratives: While Facebook and Twitter CEOs Mark Zuckerberg and Jack Dorsey have been repeatedly hauled before Congress in the past few years, YouTube CEO Susan Wojcicki has escaped summons.

An article by Ashley Nunes:  The longest grounding of a commercial jet is set to end. Sometime this week, the Federal Aviation Administration is expected to certify the Boeing 737 MAX fit to fly. The aeroplane was grounded in 2019 following two crashes. The first involved a Lion Air jet which killed all 189 people on board. Months later, a second MAX jet, operated by Ethiopian Airlines, crashed. It also left no survivors. The crashes triggered lawsuits and government investigations. The purported culprit in both crashes was technology — more specifically, a new flight-control feature dubbed MCAS (short for Maneuvering Characteristics Augmentation System). The feature was designed to prevent the aeroplane’s nose from getting dangerously high by automatically lowering it. However, under certain conditions, the MCAS lowered the nose so strongly that pilots struggled to maintain control. In the aftermath, Boeing drew fire on several fronts. Firstly for charging extra for certain safety features. Where the MAX is concerned, the company wanted airlines to pony up more cash — at least $80,000 by one estimate — for add-ons that would alert pilots if the aircraft’s systems were malfunctioning. But Boeing was more broadly criticised for not properly vetting its technology before selling it. That was then, this is now. Moving forward, not only is the company making all safety features free, Boeing has also dedicated tens of thousands of staff hours towards fixing the MAX.

Children’s book author Cynthia Levinson and her husband Sandy Levinson, a constitutional scholar and a Visiting Professor of Law at Harvard Law School, have recently published “Fault Lines in the Constitution: The Graphic Novel,” based on their 2017 constitutional law primer for young readers.

Securities and Exchange Commission Chairman Jay Clayton will step down at the end of the year, opening the door for Democrats to push for a more aggressive approach to regulation of Wall Street. His departure, made public on Monday, is the latest in a wave of expected exits at federal regulators as power changes hands in Washington. Mr. Clayton, 54 years old, said he intends to remain active on the commission until the end of the year. Mr. Clayton, a longtime corporate deals lawyer at Sullivan + Cromwell LLC and a political independent, was nominated by President Trump in 2017. He pursued an active enforcement agenda that included cases against Silicon Valley biotech startup Theranos Inc. and auto makerTesla Inc. As a regulator, he focused on making it easier for companies to raise capital—even if that meant bypassing the public markets that the commission polices. “The guy is a moderate by nature, and that’s the way I think he has conducted himself at the SEC,” said Hal Scott, a professor at Harvard Law School. “The overall system of securities regulation has to do with disclosures, and enforcement, and making sure we don’t have insider trading, and those issues. I don’t think he’s really relaxed much around that.”

Harvard Law School professor Nicholas Stephanopoulos joins CBSN to discuss the Trump campaign and Republican Party lawsuits over the 2020 election and whether their allegations are likely to stand up in court.

An op-ed by Cass Sunstein:  Here are three popular myths about executive orders: They are a way to bypass Congress; They are an insult to the Constitution; They are new and a product of the imperial presidency. Even among serious and experienced observers, there is widespread belief in these falsehoods. That’s a big problem because President-elect Joe Biden is about to issue a bunch of executive orders. Citizens need to understand what they are and what they do. Executive orders often take the form of directives from the president to his subordinates. For example, Biden might tell the secretary of homeland security to adopt new immigration policies. Or he might direct his secretary of education to reverse President Donald Trump’s civil rights policies. Executive orders do not bypass Congress. Typically, they rely on statutes that Congress has already enacted. If Biden directs the Environmental Protection Agency to issue new regulations to reduce greenhouse-gas emissions, he will be relying on the Clean Air Act, which is already the law. In domains including education, occupational safety, Covid-19, clean water and civil rights, Congress has given plenty of power to executive agencies. Executive orders from the Biden administration would rely on the power that agencies already have. For that reason, they are hardly an insult to the Constitution. So long as what they order is within the bounds set by congressional enactments, they are a perfectly legitimate exercise of executive power — which is, after all, the power to execute the law.

In August, following a Facebook event at which two protesters were shot and killed in Kenosha, Wisconsin, Mark Zuckerberg called the company’s failure to take down the event page asking militant attendees to bring weapons “an operational mistake.” There had been a new policy established earlier that month “to restrict” the ability of right-wing militants to post or organize in groups, Facebook’s CEO said, and under that rule, the event page should have been removed. BuzzFeed News has learned, however, that Facebook also failed to enforce a separate year-old call to arms policy that specifically prohibited event pages from encouraging people to bring weapons to intimidate and harass vulnerable individuals...Harvard lecturer and content moderation researcher Evelyn Douek commended the senators’ letter for attempting to highlight the gap between Facebook’s policy announcements and its applications of those policies. “We've gotten to a place where for many of the major platforms, their policies on paper are mostly fine and good,” she said. “But the question is always, always ‘Can and will they enforce them effectively?’”

Robert Fleming has a claim to be a pioneer of active asset management. His First Scottish investment trust pledged to invest mostly in American securities, with choices informed by on-the-ground research. Fleming saw that shareholders needed to act as stewards in the governance of the businesses that they part-owned. So once the fund was launched, in 1873, he sailed directly to America. It was the first of many fact-finding trips across the Atlantic over the next 50 years, according to Nigel Edward Morecroft’s book, “The Origins of Asset Management”. The art of asset management is capital allocation. It is easy to miss this amid confusing talk of alpha and beta, active and passive, private and public markets...A paper in 2017 by Lucian Bebchuk, Alma Cohen and Scott Hirst, a trio of law professors, found that asset managers mostly avoid making shareholder proposals, nominating directors or conducting proxy contests to vote out managers. Index funds are especially at fault. Their business model is to avoid the costs of company research and deep engagement. The law professors reckoned that the big three asset managers devoted less than one person-workday a year to stewardship.