Media Mentions

An article by April Xiaoyi Xu ‘21: The American legal system currently tends to excuse sleepwalking killers, particularly based on the involuntary act defense, more so than the insanity defense. By contrast, the law generally does not excuse psychopathic murderers. However, the status quo may not be the optimal or most just solution to this legal dilemma; depending on one’s philosophical beliefs regarding the tension between society’s interest and the accused’s rights, one can identify various flaws within the prevailing application of the insanity defense in cases involving sleepwalking and psychopathy. As the law is constantly evolving, there is space for growth in this area, especially with the advancement in neuroscience, which can offer more insight into sleepwalkers’ and psychopaths’ brains. In approaching the complex questions of whether and how the law should excuse sleepwalking killers and psychopaths from punishment, this article turns to relevant findings from neuroscience for support and focuses on one particular approach, that of the Model Penal Code (MPC) insanity defense. We begin with an overview of the relevant criminal law doctrine in contextualizing the MPC’s approach to insanity defense. We then apply the relevant MPC section, § 4.01, to the sleepwalking killer and psychopath contexts, bearing in mind relevant studies and findings in neuroscience and related scientific disciplines, as well as their limitations at this stage. Part of the analysis considers the U.S. Supreme Court’s latest insanity law decision, Kahler v. Kansas (2020), in relation to the subject matter of this article.

As former U.S. president Donald Trump's impeachment trial gets underway this week for his role in inciting the U.S. Capitol attack, some say the country's political institutions are at stake. To unpack the issue, Matt Galloway speaks with Ken Mack, the Lawrence D. Biele professor of law and affiliate professor of history at Harvard University, and Karen Tumulty, a political columnist for the Washington Post.

Rep. Jamie Raskin faces an immediate challenge as the top prosecutor in the second impeachment trial of former President Donald Trump: Many of the senators acting as jurors don’t think there should be one. The Maryland Democrat was picked by House Speaker Nancy Pelosi(D., Calif.) to serve as the lead impeachment manager in the Senate trial that starts Tuesday. The 58-year-old former constitutional-law professor will lead eight other Democrats in seeking to persuade the Senate to convict Mr. Trump of inciting an insurrection at the Capitol on Jan. 6...Harvard law professor Laurence Tribe, who taught Mr. Raskin, says he pointed Mrs. Pelosi toward Mr. Raskin’s legal knowledge early on after Mr. Raskin joined the House. “There are a lot of constitutional issues that come up in the House of Representatives, and she wanted to know, who did I know that she could lean on when these issues came up?” Mr. Tribe said in an interview. He named Mr. Raskin, as well as Rep. Adam Schiff (D., Calif.), the lead manager for Mr. Trump’s first trial, as lawmakers on whom it would be good for Mrs. Pelosi to rely.

An op-ed by Bruce Schneier: President Biden wants his Peloton in the White House. For those who have missed the hype, it’s an Internet-connected stationary bicycle. It has a screen, a camera, and a microphone. You can take live classes online, work out with your friends, or join the exercise social network. And all of that is a security risk, especially if you are the president of the United States. Any computer brings with it the risk of hacking. This is true of our computers and phones, and it’s also true about all of the Internet-of-Things devices that are increasingly part of our lives. These large and small appliances, cars, medical devices, toys and — yes — exercise machines are all computers at their core, and they’re all just as vulnerable. Presidents face special risks when it comes to the IoT, but Biden has the NSA to help him handle them. Not everyone is so lucky, and the rest of us need something more structural. US presidents have long tussled with their security advisers over tech. The NSA often customizes devices, but that means eliminating features. In 2010, President Barack Obama complained that his presidential BlackBerry device was “no fun” because only ten people were allowed to contact him on it. In 2013, security prevented him from getting an iPhone. When he finally got an upgrade to his BlackBerry in 2016, he complained that his new “secure” phone couldn’t take pictures, send texts, or play music. His “hardened” iPad to read daily intelligence briefings was presumably similarly handicapped. We don’t know what the NSA did to these devices, but they certainly modified the software and physically removed the cameras and microphones — and possibly the wireless Internet connection.

Along with books about Donald Trump, the biggest story in the publishing industry last year was “the racism reading list.” As millions took to the streets to protest the deaths of George Floyd, Breonna Taylor and other unarmed Black people senselessly killed by police, books about the history of race and racism in America shot to the top of bestseller lists. So voracious was this sudden hunger for education about the roots of our latest racial reckoning that a clever marketer might have thought to commission a version of CliffsNotes for the curriculum. As it turns out, two authors on that reading list were already on the case. In 2019, the award-winning authors Ibram X. Kendi (“How to Be an Anti-Racist”) and Keisha N. Blain (“Set the World on Fire”) began approaching other prominent Black writers to collaborate on a group history of the African American experience. Two years later, the co-editors have produced a volume of 80 short essays that is highly readable and far more compelling than a mere historical digest would have been. The book’s title, “Four Hundred Souls: A Community History of African America, 1619-2019,” refers to the 400 years since the first African slave ship, the White Lion, arrived in the colony of Virginia in 1619 — as well as to the collective spiritual journey traveled in that time span. The structure is both chronological and thematic, with each author covering a different topic over a five-year period, usually in 2,000 words or less. The contributors include renowned scholars (Annette Gordon-Reed, Molefi Kete Asante), Pulitzer Prize-winning journalists (Isabel Wilkerson, Nikole Hannah-Jones), nationally known activists (the Rev. William J. Barber II, Sherrilyn Ifill of the NAACP Legal Defense Fund) and living legends of the Black struggle (Angela Y. Davis).

President Joe Biden, the second Catholic in history to hold the office, has made religion a prominent element of his public role. He attended Mass on the morning of his inauguration, quoted the theologian and philosopher St. Augustine in his inaugural speech and placed a photograph of Pope Francis, whom he has praised as a personal inspiration, behind his desk in the Oval Office...Perhaps inevitably, the start of the Biden administration has kicked off a debate over how Catholic his policies actually are... “In a society with very few strong moral paradigms left, Catholic social thought is a well-organized tradition that has something for both left and right,” said Adrian Vermeule, a conservative professor of constitutional law at Harvard University. “Catholicism, despite or because of our polarized age, is becoming something like an organizing common language for a great deal of American public life.”

President Biden has signed more executive orders in his first weeks than any president since Franklin Roosevelt in the 1930s, and many of those orders focus on protecting the environment and fighting against climate change. Jody Freeman, professor at Harvard Law School and former Counselor for Energy and Climate Change in the Obama White House, joins Host Bobby Bascomb to dive deeper into how these actions lay the groundwork for strong climate policy and green investment.

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.