Media Mentions

Donald Trump’s recent pardons of several key aides have ignited a crucial debate: Should President-elect Joe Biden’s Department of Justice investigate his predecessor’s apparent obstruction of a potentially damning inquiry into his entanglement with Vladimir Putin’s Russia? Opponents muster numerous arguments. A probe would sharpen our bitter divide. It would smack of reprisal. It would spotlight Trump’s grievances. It would be too complex and time-consuming. It would undermine Biden’s effort to advance a positive agenda that speaks to the future. Restoring our comity, they conclude, precludes launching the unprecedented prosecution of an ex-president...First, the pardons. As Harvard law professor Laurence Tribe points out, they “belong to a distinct and far more dangerous category” than mere political favoritism. Tribe elaborates: “If Mr. Trump has used his pardon power to commit crimes, he must be prosecuted; failing to do so would set a perilous precedent for future administrations. In future investigations of presidential misconduct, essential witnesses might routinely protect the boss in hopes of (or in exchange for) immunity. Worse yet, future presidents could treat their terms in office as four-year licenses to commit heinous crimes with impunity.”

President Trump doled out clemency to a new group of loyalists on Wednesday, wiping away convictions and sentences as he aggressively employed his power to override courts, juries and prosecutors to apply his own standard of justice for his allies. One recipient of a pardon was a family member, Charles Kushner, the father of his son-in-law, Jared Kushner. Two others who were pardoned declined to cooperate with prosecutors in connection with the special counsel’s Russia investigation: Paul Manafort, his 2016 campaign chairman, and Roger J. Stone Jr., his longtime informal adviser and friend...Of the 65 pardons and commutations that Mr. Trump had granted before Wednesday, 60 have gone to petitioners who had a personal tie to Mr. Trump or who helped his political aims, according to a tabulation by the Harvard Law School professor Jack Goldsmith. Although similar figures do not exist for previous presidents, legal experts say that those presidents granted a far lower percentage to those who could help them personally and politically.

Wednesday, Dec. 30, at 12pm EST, Jack Goldsmith, co-founder of Lawfare and Learned Hand Professor of Law at Harvard Law School, and Benjamin Wittes, co-founder and editor-in-chief of Lawfare, will join David Priess, Lawfare’s chief operating officer, to answer questions about the president’s recent slew of pardons and commutations.

The US government must do more to demand China release a Uighur man who was jailed for 15 years after participating in a state department exchange program, a coalition of Harvard University schools and student groups has said. Ekpar Asat, a young entrepreneur from Xinjiang, disappeared in 2016 after returning from the US where he had been on the exchange program and visited his sister Rayhan, a Harvard law student. He had promised to come back to the US in a few months with their parents to watch her become Harvard’s first ever Uighur graduate...This week more than 70 student organisations from six Harvard schools signed an open letter urging the US state department to take stronger actionin advocating for an alumnus of its prestigious International Visitors Leadership Program (IVLP). Sondra Anton ‘22, director of activism at Harvard Law School’s Advocates for Human Rights, and a key organiser of the campaign, said while there was some initial pushback, support “snowballed” and came from dozens of groups, including associations for students from multiple ethnic and religious backgrounds. “It started a lot of conversations internally,” said Anton. “Are we going to be on the right side of history? Are we going to use our unique platforms to not just promote ourselves and our careers, but also others?” Professor William Alford, Director of East Asian Legal Studies at Harvard Law, said he found Asat’s case “disturbing … I think it laudable that students express themselves on matters of conscience.”

A podcast by Noah Feldman: Michelle Mello, a professor of law at Stanford Law School and a professor of medicine at Stanford University School of Medicine, discusses the practical and ethical questions surrounding the distribution of the COVID-19 vaccines.

An op-ed by Cass Sunstein: Suppose we could adopt, soon or right now, a strategy that would substantially reduce greenhouse gas emissions while costing people very little, or possibly even nothing? Not only that, it would not require bans or mandates, new regulations or carbon taxes. Consumers would retain freedom of choice. The very idea sounds fanciful, even nuts. Yet a number of municipalities in California have adopted such an approach, and it’s in widespread use in Germany, where it is having a major impact. It’s called “green by default.” The basic concept is that consumers should be automatically enrolled in renewable energy, with the right to opt out if that’s what they want to do. If the approach were adopted all over the U.S., it could potentially play a larger role in reducing emissions than seemingly more aggressive steps, such as energy efficiency requirements for household appliances. In the municipalities in California, hundreds of thousands of people are now receiving 100% renewable energy, and that means dramatic cuts in greenhouse gas emissions. All over Germany, automatic enrollment in renewable energy is also working, in the sense that most people are staying with cleaner energy sources.

An op-ed by Amre Metwally ‘22: When Facebook, Twitter, and YouTube discuss the fraught work of content moderation, they often come back to one word: context. “For our reviewers, there is another hurdle: understanding context,” Monika Bickert, Facebook’s head of global policy management, once wrote in an op-ed. That context can include, say, whether a user has uploaded an alarming video to glorify violence or to criticize it. Lack of context can be the difference between whether a post follows or violates the rules—and it can frustrate content moderators and company employees already under pressure to make the “right” enforcement decision. Missing context, however, is not only an issue when it comes to evaluating users’ posts. The companies themselves often fail to provide necessary context to the broader public about how they approach content moderation. Users who feel their tweets, posts, or videos were erroneously removed don’t get adequate explanations from the platforms about how, exactly, they violated these rules. It can be even more consequential when the documentation of human rights abuses is at stake. Context is, indeed, everything.

The legal principle that corporate boards must focus exclusively on maximizing value for shareholders wasn’t always taken for granted. It was enshrined in a 1919 court decision involving Henry Ford and two of his car company’s shareholders, the Dodge brothers. As chairman and majority owner of Ford Motor Co., he had repeatedly raised his workers’ pay, cut the price of the Model T, and reinvested profits in expansion. If Ford were around today his stance might be applauded by the environmental, social, and governance (ESG) movement on Wall Street...For a century there’s been a struggle between advocates of shareholder primacy and those who say corporations should take into account other priorities, particularly environmental, social, and governance issues. As ESG has gained prominence it’s generated a quiet backlash...But the power of big holders and the proxy advisory firms that help them decide how to vote their shares rubs some people the wrong way. “A small number of unelected agents, operating largely behind closed doors, are increasingly important to the lives of millions who barely know of the existence much less the identity or inclinations of those agents,” Harvard Law School professor John Coates wrote in a 2018 paper.

For years, the asset-management industry has braced itself for shocks. In 2018, $369 billion poured out of long-term mutual funds in favor of exchange-traded funds, a record at the time. In 2019, the case for traditional actively managed mutual funds became even harder to make when Charles Schwab Corp. jump-started a race to the bottom among online brokerages by eliminating commissions for ETFs along with U.S. stocks and options. If those were tremors, 2020 will go down in history as an earthquake. Even before Covid-19 roiled global markets and brought the Robinhood crowd and Dave Portnoy of Barstool Sports into the Wall Street zeitgeist, there were already signs of seismic change...If the same dozen people control every public company — Harvard professor John Coates calls it “The Problem of Twelve” — what does it mean? Should someone do something? Should those people be required to … explain their votes? Not vote their shares? Vote in a specific way? Ask their ultimate investors how to vote? Have some other formalized rules for how they vote? They have accrued all this power, sort of by accident; should there be rules for how they exercise it? Or is this just how the market works and everything is fine? There aren’t any clear answers.

Outgoing US President Donald Trump has signed a bill calling for the delisting of foreign companies that don't adhere to the same accounting transparency standards that securities regulators impose on US public companies. The US Congress passed the Holding Foreign Corporation Accountability Act on Dec 2, which prohibits foreign companies, despite being listed in the US, from trading in the country if they do not comply with the accounting requirements of the US Securities and Exchange Commission for three consecutive years...If delisted, Chinese companies can remove American investors as their shareholders at a depressed buyout price, and then re-list on Chinese stock exchanges at a much loftier valuation. Jesse Fried, a law professor at Harvard University, argues that the HFCA Act aims to delist Chinese companies from the US exchanges at the expense of Americans holding shares in these companies－a cure likely worse than the disease. And the losses will be suffered by not only big institutional investors but also retail investors, who either directly own the Chinese companies' shares, or have retirement portfolios which include exchange-traded funds that cover these companies.

From a rundown office tower in downtown Shanghai, wedding dresses are sold to the US, wristwatches are shipped to France and cheap trainers are sent to customers in the UK. Dozens of websites and apps operate from the 23-floor Greenland business building, where employees sit in offices that are completely unmarked, apart from the words “Self Confidence” pasted to their glass doors. One man is behind all these ventures, 40-year-old Colin Zheng Huang, the billionaire founder, chairman and controlling shareholder of one of this year’s biggest sensations, the online shopping app Pinduoduo, whose shares have risen by 261 per cent since January...Mr Huang has only occasionally held shares in his own name in China. Even at Pinduoduo, he signed over all his shares in its Chinese business ahead of the company’s 2018 initial public offering to Chen Lei, Pinduoduo’s chief executive, who he studied with at the University of Wisconsin-Madison...Other Chinese tech executives, such as Pony Ma of Tencent or Robin Li of Baidu, have kept tight control of their onshore companies, which run their businesses and hold crucial licences. But Mr Huang holds no shares in Pinduoduo’s VIE. “Colin must really trust Chen Lei or it’s a scary situation, for both Colin and US investors,” said Jesse Fried, a corporate governance expert at Harvard Law School.

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 short-termism in EU listed firms, and proposing to solve the problem by shifting power from investors to other stakeholders. But the report’s findings are deeply flawed and its proposals would, perversely, reduce business sustainability in the EU. To try to demonstrate short-termism, the report points to rising levels of gross shareholder payouts—dividends and repurchases—and declining levels of investment. But the report mismeasures both. 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. But as we have shown, stock issuances in the EU are substantial, far exceeding repurchases. During 2010-2019, for example, gross shareholder payouts represented 65% of net income.  But equity issuances amounted to 27% of net income, so the ratio of net shareholder payouts to net income was only 38%. The findings about investment are also deeply flawed, as they rely on an incomplete sample. Our analysis of all EU-listed firms reveals that both capital expenditures (CAPEX) and research and development (R+D) actually increased during the period covered by the report, both in absolute terms and relative to revenues.  Moreover, cash balances grew by nearly 40% over the last decade, from €703 to €960 billion. Investment is clearly not limited by a lack of cash. Here’s the irony: while the report fails to show EU businesses are misgoverned, adopting the report’s proposals would actually put these businesses at risk.

Harvard scholars — including Annette Gordon-Reed ’84 and I. Glenn Cohen ’03 — tell of muddling through, insights gained, small wins, and a rescue pup named RBG.

Now that the Electoral College has voted, President Donald Trump’s last stand is anticipated to take place on January 6, 2021, when Congress convenes to officially count the votes of the electors. This final step in the election process is given apparent gravity by a provision of an ancient statute called the Electoral Count Act of 1887 (the “ECA”). The ECA authorizes members of Congress to object to a state’s results and creates a process for resolving any such objections by votes in both the House and the Senate. If majorities of both houses affirm the objection, the ECA provides that the state’s electoral votes will be rejected. If enough electoral votes are rejected to prevent any candidate from getting to 270 votes, the Twelfth Amendmentthrows the election to the House for a state-by-state vote. Since the Republican party controls more state delegations than Democrats do, Trump presumably would be the winner. For a host of reasons, it is almost unthinkable that Trump’s supporters will be able to get an objection through Congress on January 6...Because I haven’t found any scholarly or judicial writing on this specific issue, I checked in with Laurence Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. Professor Tribe was kind enough to offer this unqualified, definitive response: “[T]he 1887 Electoral Count Act cannot be regarded as an even arguably constitutional path along which the special Joint Session of Congress called for in the Twelfth Amendment might opt to engage in substantive second-guessing of how any given State chose to conduct its Article II function of appointing Electors.” This sounds like case closed.

Several members of the community, including Andrea Saenz ’08, who appeared on the game show share the questions that haunt them and memories of the late host Alex Trebek.

One in every five state and federal prisoners in the United States has tested positive for the coronavirus, a rate more than four times as high as the general population. In some states, more than half of prisoners have been infected, according to data collected by The Marshall Project and The Associated Press. As the pandemic enters its tenth month—and as the first Americans begin to receive a long-awaited COVID-19 vaccine—at least 275,000 prisoners have been infected, more than 1,700 have died and the spread of the virus behind bars shows no sign of slowing. New cases in prisons this week reached their highest level since testing began in the spring, far outstripping previous peaks in April and August...Racial disparities in the nation’s criminal justice system compound the disproportionate toll the pandemic has taken on communities of color. Black Americans are incarcerated at five times the rate of whites. They are also disproportionately likely to be infected and hospitalized with COVID-19 and are more likely than other races to have a family member or close friend who has died of the virus. The pandemic “increases risk for those who are already at risk,” said David J. Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

An op-ed by Noah Feldman: It’s hard to believe, but exactly year ago, the big news story was President Donald Trump’s impeachment. Twelve months later, a viral pandemic is killing thousands of Americans every day and Republicans are still so loyal to Trump that it took until this week for Senate Majority Leader Mitch McConnell to acknowledge that he’d lost the November election. So it seems worth asking: Did impeachment matter? And what, if anything, was it worth? For one thing, it looks unlikely that the investigation, the impeachment itself or the Senate trial meaningfully affected the outcome of the 2020 vote. Trump emerged with his support from his base roughly intact. And in fact, despite mismanaging the government response to Covid-19 and presiding over an economic meltdown, Trump came nail-bitingly close to winning reelection. It’s easy to conclude that, without the pandemic, Trump would have won. And if that’s correct, it would seem that the impeachment would not have made any difference. As for the congressional races, Democrats lost ground in the House, which could be interpreted as voters’ disapproval of impeachment — although that was not the explanation preferred by the losers. Nor were the handful Republican losses in the Senate read as disapproval of the absurd show trial led by McConnell. But electoral results are not the only measure of the impeachment’s significance. There is also the verdict of history.

In late November, while most of the GOP was refusing to call Joe Biden “president-elect,” General Motors CEO Mary Barra effectively called the race: she withdrew from a lawsuit about California’s ability to set strict fuel economy and vehicle emissions standards, and challenged the CEOs of other automakers to do the same. “We are immediately withdrawing from the pre-emption litigation and inviting other automakers to join us,” Barra wrote in a letter to the heads of 11 environmental organizations. The withdrawal was an acknowledgement—from one of the U.S. automakers that embraced the Trump administration the hardest—that with a new administration, change is coming, whether the world’s automakers like it or not. But even if all the automakers drop their challenge to California it doesn’t mean the incoming Biden administration can just flip a switch and immediately undo Trump’s rollbacks of auto emissions to the planned reductions of four years ago. The process will be slower and more unwieldy than the urgency of addressing climate change demands. And without legislation from Congress, any progress Biden makes could be undone by a future administration. “That’s why it’s so important to move fast on this,” Caitlin McCoy, a staff attorney with the Harvard Law School Environmental and Energy Law Program, told VICE News. “Every time a car that consumes gasoline is sold, that just pushes out our timeline.” ... The first step Biden could take would be to direct the Environmental Protection Agency to restore California’s waiver. “This would restore the state’s legal authority to set stricter emissions standards,” said McCoy.

An op-ed by Bob Bauer and Jack Goldsmith: Now that Donald Trump’s time in the White House is ending, an urgent task is the reform of the presidency that for four years he sought to shape in his image and to run in his personal and political self-interest. What the those years have shown is that the array of laws and norms that arose after Watergate and Vietnam requires an overhaul. Any program for reform of the presidency must give precedence to our health and economic crises. It must also acknowledge political realities. Some reforms can be carried out by the executive branch, but others require legislation. Those must attract at least modest bipartisan support in the Senate. With these constraints in mind, an agenda for reform of the presidency could realistically reflect the following priorities: Executive Branch Reforms. These reforms should focus on restoring the integrity of the rule of law, especially to check presidential interventions in law enforcement for self-protection or to harm political enemies. The Constitution vests executive law enforcement power in the president, so the executive branch must institute most of these reforms. Internal branch reforms lack legal enforceability but can establish or reinforce guardrails that constrain even norm-breaking presidencies, especially by influencing presidential subordinates. Because President Trump defied them regularly, and sometimes his Justice Department did, too, there’s a lot of skepticism about norms. But actually norms succeeded more in checking him than has been appreciated — for example, in ensuring that Robert Mueller, despite Mr. Trump’s opposition, could complete his inquiry; in protecting federal prosecutors in New York in any investigation of matters related to Mr. Trump; and in preventing the Justice Department from carrying out the president’s desire to prosecute his enemies.

President-elect Joseph R. Biden Jr. has selected Michael S. Regan, North Carolina’s top environmental regulator, to lead the Environmental Protection Agency, Mr. Biden’s transition team announced Thursday. The decision elevates for the first time a Black man to lead the powerful department, which is central to achieving the new administration’s climate change agenda. Mr. Regan was not the president-elect’s first choice, and he lacks some of the political star power of Mr. Biden’s other cabinet picks. But he will be on the front lines of the incoming administration’s effort to undo one of President Trump’s most sprawling transformations of the federal government: the unraveling of a half-century of pollution and climate regulations, and the diminishment of the science that underpinned them. “He faces a massive reconstruction and rebuilding operation,” said Jody Freeman, a Harvard University law professor who served as White House counselor for energy and climate change in the Obama administration. Mr. Regan “has to go in and restore the morale of the career staff,” she said. “He has to make it clear that science and integrity are back. He’s got a raft of rules that he’s got to rescind and replace and strengthen.” And, Ms. Freeman added, “He’s got to do this under some time pressure.”

Environmentalists and climate change activists are expressing a feeling this week that's been hard for them to come by in the past four years: optimism. The names of President-elect Joe Biden's key cabinet members who will deal with the issue he's called an "existential threat" emerged this week, and while the behind-the-scenes lobbying for the positions may have been fierce, the prospective team is being hailed as a group of climate all-stars...Many greens were skeptical that Biden was devoted to the climate cause when he emerged as the nominee from the Democratic primary. His climate plan at the time got lukewarm reviews from them, but a mid-year melding of the minds with Sen. Bernie Sanders team and other activists such as Sunrise Movement and alumni of Washington Gov. Jay Inslee's brief presidential bid produced the most aggressive-ever blueprint ever from a party's nominee: $2 trillion in climate spending in four years to set the power grid on a path to clean energy by 2035 and net-zero emissions for the whole country by 2050. Those goals, scientists say, are crucial to reach to stave off catastrophic climate change in the coming decades. But even with the promise, many experts were nervous that Biden's team may not live up to expectations. Now, those fears have disappeared. “It’s hard not to be impressed and even inspired,” said Jody Freeman, director of Harvard Law School's Environmental and Energy Law Program and a former Obama White House adviser...Even if the Senate remains under Republican control after next month's Georgia run-off election, Biden backers are confident the team will make major strides wielding their executive branch power. "It’s the Cabinet officials who have the legal authority," Freeman said. "But what they can use is some help getting policies through a fairly bureaucratic White House. If you order this the right way, you can have a lot of success.”