Media Mentions

The COVID-19 crisis has intensified discussions about corporate purpose and corporate duties to stakeholders. Against this backdrop, the European Corporate Governance Institute and the London Business School Centre for Corporate Governance hosted a virtual debate on stakeholder capitalism between Harvard Law School Professor Lucian Bebchuk LL.M. ’80 S.J.D. ’84 and London Business School Professor Alex Edmans. Held earlier this month, the debate, titled “Stakeholder Capitalism: The Case For and Against,” was moderated by Gillian Tett, chair of the editorial board and editor-at-large of the Financial Times. Stakeholder capitalism is the idea that companies should look to serve all stakeholders, not just shareholders but also customers, employees, suppliers, and local communities. Shareholder capitalism, on the other hand, is the view that companies should focus exclusively on serving in the interest of shareholders, the owners of the stock of the company...Bebchuk, the James Barr Ames Professor of Law, Economics, and finance and director of the Program on Corporate Governance at Harvard Law School, argued that relying on corporate leaders to serve goals other than shareholder value should not be expected to provide material benefits to stakeholders and should be rejected, including by those who deeply care about stakeholder interests, as a way to ensure that capitalism works for stakeholders.

President-elect Joe Biden has picked superstars to advance his global warming agenda. The expected appointment this week of former EPA Administrator Gina McCarthy to oversee Biden's domestic climate policy comes after he tapped former Democratic presidential nominee and Secretary of State John Kerry to represent his climate priorities abroad. McCarthy, who comes fresh from leading the influential Natural Resources Defense Council, can claim a leading role in every EPA rule promulgated under President Obama to combat climate change — first as the agency's air chief and then its leader. Kerry led the U.S. effort to land the Paris Agreement... "I see the McCarthy pick, in particular, as a recognition that the playbook is a regulatory playbook," said Jody Freeman, an Obama administration adviser who now directs the Environment and Energy Law Program at Harvard Law School. "I think there's going to be a lot of emphasis on regulation, especially early on right out of the gate," she said. "EPA has a bunch of rules it has to put back in place, and she knows exactly what that's like." But Freeman and others say that far from overshadowing an EPA administrator, McCarthy would likely use her expertise to be EPA's top advocate in the White House, smoothing the way for regulations written by agency experts. Freeman envisioned McCarthy as a kind of climate change quarterback at the White House who could overcome challenges that might complicate rulemakings or water down their results.

An op-ed by John Coates and Robert Pozen: While the commissioners agreed unanimously on many technical and enforcement issues, policy votes divided on party lines. In 2020, more than half of final rule-makings were partisan affairs with dissents from Democratic commissioners. Partisan politics is part of Washington, D.C. Yet now a window is open for a restart if Joe Biden appoints a diplomatically minded SEC chair who can build a strong consensus among the four other commissioners. Balanced rulemaking can deepen the SEC’s legitimacy, improve staff morale and enhance its ability to resolve difficult problems. Here are five issues for a consensus agenda set by the new Chair: 1. Open private securities markets intelligently: The SEC has long allowed only sophisticated investors to buy private securities, because these securities have minimal liquidity and private issuers provide investors with little information about the risks involved. In the past few years, the Commission seems to have bought the argument that the average Joe should be able to invest in the next Google before it went public. But most startups fail, and successes go through multiple rounds of complicated funding that are difficult to evaluate. The main guards against the dangers of alluring speculation in private securities have been quantitative requirements for “accredited” investors — $200,000 in annual income or $1 million in net worth.

An op-ed by Jack Goldsmith: David Sanger, building on a Reuters story, reports in the New York Times that some country, probably Russia, “broke into a range of key government networks, including in the Treasury and Commerce Departments, and had free access to their email systems.” The breach appears to be much broader. “[N]ational security-related agencies were also targeted, though it was not clear whether the systems contained highly classified material.” The Department of Homeland Security appears to be one of those agencies. Sanger says that the “intrusions have been underway for months” and that “the hackers have had free rein for much of the year.” The original Reuters story on Dec. 13 noted that people familiar with the hacks “feared the hacks uncovered so far may be the tip of the iceberg.” On the evening of Dec. 13, the Cybersecurity and Infrastructure Security Agency issued an Emergency Directive to all federal civilian agencies to review their networks for indicators of compromise. This attack is the latest in a long string of other serious breaches of government networks by insiders and outsiders in the past decade—for example, the Office of Personnel Management (OPM) in 2014-2015; the White House, State Department, and Joint Chiefs email breach during those same years; the 2016 theft of CIA hacking tools; the Shadow Brokers theft of National Security Agency tools in 2017; and Edward Snowden’s mammoth disclosures in 2013 and beyond. These events constitute a stunning display of the U.S. government’s porous defenses of sensitive government networks and databases.

Harvard President Larry Bacow has urged President-elect Joseph R. Biden Jr. to reverse a series of immigration restrictions imposed by the Trump administration over the past four years, arguing that the steady flow of talented immigrants to the United States — many coming to study at a college or university — historically has been a key ingredient of the nation’s innovation economy. In a letter sent Monday congratulating Biden on his election victory, Bacow wrote in support of the incoming administration’s plans to rescind the ban on travel from certain Muslim-majority countries, reinstate Deferred Action for Childhood Arrivals, otherwise known as DACA, and reissue Temporary Protected Status for people from countries experiencing war or natural disasters...Sabrineh Ardalan, who directs the Immigration and Refugee Clinic at Harvard Law School, also welcomed Bacow’s letter. “The University’s continued advocacy on behalf of people with DACA and TPS is incredibly important,” said Ardalan. “It is critical that the Biden administration fully reinstate DACA and TPS and work with Congress to create a path to permanent residency and citizenship for DACA recipients and TPS holders.”

On Monday, speaking to Fox News, senior White House adviser Stephen Miller said that the GOP plans to hold votes for their own set of “electors” in multiple key states that voted for President-elect Joe Biden — something that has no basis in law, since the states have already been certified. Speaking to CNN’s Erin Burnett, Harvard Law professor Laurence Tribe slammed the stunt — who said it was not only meritless, it was bringing the nation closer to political violence. “I mean, this is completely made up,” said Burnett. “They may be doing it, right? But it’s a completely made up thing. They’re getting broadcast to millions of people who are hearing this sort of thing. Put it to rest.” “Erin, many of them are armed and dangerous,” said Tribe. “What these people are doing — Stephen Miller prime among them — is stirring up violence, the kind of violence that required special protection for the electors in the state of Michigan. They are inciting violence. They are engaged in, essentially, sabotage.” “Yes, January 20th is the date in the Constitution, but well beyond the 20th these people are going to be out there, whether it’s Mar-a-Lago or somewhere else, encouraging the sort of armed rebellion to kill people,” continued Tribe. “And I think that’s a scary thing, not just for democracy but for the people who want to go on with their lives. We’ve got a terrible pandemic. We have an economy in shambles as a result of this president’s failure to deal with the pandemic. We have a new president, a new sheriff in town … and in the meantime these sore losers are out there trying to stir up violence. It’s really a sad day for America. And yet a happy day because democracy has prevailed.”

An op-ed by Charles Fried: Partisan rulings in election cases by federal judges who were appointed by Republicans in the Fifth Circuit, Eighth Circuit, and Eleventh Circuit, with the notable exception of the striking decision by Judge Stephanos Bibas in the Third Circuit, have raised the fear that the ideal of judicial independence and legitimacy of the federal courts are in peril. Most threatening, of course, was the hurried confirmation of Supreme Court Justice Amy Coney Barrett, so she could be in place to rule on any election cases. That has led to some suggestions that the administration of Joe Biden should consider adding justices to recreate the “ideological balance” on the bench, in a move reminiscent of the notorious proposal by Franklin Roosevelt to pack the Supreme Court with justices. In addition to three justices, President Trump has succeeded with over 200 judges in the lower federal courts. Countervailing expansion of the federal courts of appeals would not raise similar alarms. Federal appeals courts usually work in panels of three judges. So if this less dramatic but perhaps more effective move were made, how should it be done? If the ideal of judicial independence is to be preserved rather than eroded, it must not be done in the partisan fashion of the last four years.

An op-ed by Noah Feldman: John Le Carré, who died this week, was one of those rare writers who transcends his genre. His books were about spies, especially British ones. But his best novels were full-blown masterworks that explored enduring themes like betrayal, illusion and (his favorite) late middle age. Since hitting middle age myself, I’ve re-read his three greatest novels in every year. The appeal of Le Carré’s writing can be hard to state simply, because in some sense it is really an anti-appeal. His characters might be spies, but they aren’t dashing or handsome. They don’t take heroic action or engage in leaps of faith. Le Carré’s characters plod. Yet for all their superficial ordinariness, Le Carré’s characters are memorable for the richness and complexity of their inner lives. George Smiley, Le Carré’s greatest creation, is short and “podgy.” He wears clothes that are too big for him and polishes his glasses on the silk lining of his tie. His wife, Ann, is chronically unfaithful. In his mind, however, Smiley bestrides the world like a colossus. He sees all — or at least, all that he is able to see in the light of his limitations. Warning: spoilers ahead. In the first of Le Carré’s great trilogy, “Tinker, Tailor, Soldier, Spy,” Smiley manages to uncover a mole (a word he popularized and possibly invented) in the heart of the British Secret Service. But it takes him longer, much longer than it should — because the mole had an affair with Ann.

A podcast by Noah Feldman: Michael Alexander, a professor of religious studies at the University of California, Riverside and the author of the new book “Making Peace with the Universe,” discusses how different spiritual masters helped guide him through a moment of crisis.

An essay by Jeannie Suk Gersen: After the Electoral College cast its votes and affirmed his victory, on Monday, Joe Biden declared that “democracy prevailed” and “faith in our institutions held.” And Senate Majority Leader Mitch McConnell finally congratulated Biden as President-elect and Kamala Harris as Vice-President-elect. On January 6th, a joint session of Congress will officially count the votes. The result should be more than assured. But last week brought the shock of seeing seventeen Republican state attorneys general and more than half of House Republicans sign amicus briefs supporting Texas’s unsuccessful bid to have the Supreme Court prevent four states’ electoral votes from being cast. That astounding show of loyalty to Trump made it imaginable that Republican lawmakers, having failed to convince the Court to overturn the election result, would use Congress to attempt it. On December 13th, Representative Mo Brooks, Republican of Alabama, announced his intent to dispute Biden’s victory by challenging the votes of five swing states in the January congressional session. The group he will lead in the effort so far includes Representatives-elect Barry Moore, from Alabama, and Marjorie Taylor Greene, from Georgia. This year’s election and post-election period have felt unprecedented in so many ways, but there are long-standing rules for challenging electoral votes for President on the floor of Congress.

In a recent Q&A with the Harvard Gazette, experts and co-authors John Palfrey ’01 and Urs Gasser LL.M. ’03 offer advice on how to become…

President-elect Joseph R. Biden Jr.’s ability to reshape the economy through legislation hinges in large part on the outcome of the two Georgia runoffs in January that will decide control of the Senate. But even without a cooperative Congress, his administration will be able to act on its agenda of raising workers’ standard of living and creating good jobs by taking a series of unilateral actions under existing law...Under Mr. Biden, the National Labor Relations Board is likely to be far more aggressive in punishing employers that appear to break the law while fighting union campaigns. It can issue a regulationmaking it easier for the employees of contractors and franchises to hold parent companies accountable for violations of their labor rights, such as firing workers who try to unionize. According to Benjamin I. Sachs, a Harvard Law School professor, the board could also seize on a legal provision that allows the federal government to cede jurisdiction to the states for regulating labor in certain industries. That could enable a state like California or Washington to create an arrangement in which gig workers, with the help of a union, negotiate with companies over wages and benefits on an industrywide basis in that state, a process known as sectoral bargaining. Under such a system, a union would have to show support from a fraction of workers in the industry, such as 15 or 20 percent, to be able to negotiate with multiple gig companies on behalf of all workers. By contrast, under federal law, the union would typically have to win majority support among the workers it sought to represent, a daunting challenge in a high-turnover industry like gig work.

It’s been a little over a year since the Business Roundtable (BRT) issued its much-ballyhooed statement on corporate purpose. Many of the commentators who welcomed it rapturously predicted the statement would usher in a new era of corporate social responsibility (CSR), with corporations tackling a range of social problems such as climate change and racism. After a year in which society and business have faced unprecedented problems, it seems fair to ask whether corporations have really embraced the BRT’s vision of corporate purpose...Further evidence that the BRT statement was mostly greenwashing comes from surveys by legal scholars Lucian Bebchuk and Roberto Tallarita. They found that most CEOs who signed the statement had not gotten approval to do so from their companies’ board of directors, which one would expect in the event of a major shift in corporate policy and purpose. They also found that the corporate governance guidelines of a sample of signatory firms had not been modified to reflect the statement’s emphasis on social responsibility and stakeholders. To the contrary, as they pointed out, “explicit endorsements of shareholder primacy can be found in the corporate governance guidelines of the two companies whose CEOs played a key leadership role in the BRT’s adoption of its statement.” ... In an open letter to the CEOs of the signatory firms, management academic Bob Eccles pointed out that the logical next step would have been for their boards to “publish a statement explaining the specific purpose of your company,” but “not a single one of your boards has published such a statement.” Bebchukand Tallarita’s argument that boards are not even talking the talk, let alone walking the walk, remains valid.

An article by Lawrence Lessig: As reported by Rick Hasen at the Election Law Blog, Stephen Miller has now announced that alternative slates of electors are in fact voting in each of the swing states. Rick discounts the significance of this. I think he moves too quickly in reaching that happy conclusion. The precedent is Hawaii, 1960. As Van Jones and I had written on CNN.comon November 4, “In 1960, Hawaii’s vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes. On November 28, the acting governorcertified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon. But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii’s voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then-Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to ‘open all the certificates’ as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.” As with what Miller imagines with the swing states in 2020, Hawaii had two certifications. The question for Nixon was whether he would count that second certification, given after the electors were to have voted (especially since they were electoral votes for Kennedy, not for Nixon).

Teenagers spend an average of nine hours a day online, and many parents worry about the impact of screen time on their children. There is no need to worry, said digital experts Urs Gasser and John Palfrey, authors of the newly released book “The Connected Parent: An Expert Guide to Parenting in a Digital World.” The Gazette spoke with Gasser, professor of practice at Harvard Law School and executive director of the Berkman Klein Center for Internet and Society, and Palfrey, president of the MacArthur Foundation and former faculty director of the center, on ways parents can embrace the philosophy of “connected parenting” and help children be safe online and make the most of new media and technology.

An op-ed by Noah Feldman: Attorney General William Barr has resigned with a little more than a month left in President Donald Trump’s administration. This seems to suggest that Barr thinks what happens in the next five weeks could irretrievably tarnish his legacy. If so, that’s pretty stunning, considering how much Barr has already diminished his reputation and that of the Justice Department with his pro-Trump shenanigans. What’s the January surprise Barr wants no part of? One possibility is that Barr wants to create bureaucratic distance between himself and the president so that he can say he resigned rather than serving out his term. But this seems implausible, even for a canny bureaucratic operator like Barr, given how close he has been to the presidency. And it certainly seems at odds with the fawning tone of his resignation letter. Another option is that Barr realizes that Trump plans to continue challenging the election outcome. Barr has been willing to tolerate Trump’s arguments thus far, even if he himself has refused to say that Justice has evidence of meaningful fraud. Yet the prospect of increasingly wild claims of conspiracy and an inauguration without Trump in attendance might perhaps be enough for Barr to prefer to be out of town — and out of the administration — for the next few weeks. The most likely possibility, however, involves presidential pardons, and perhaps legally questionable executive orders designed to make more permanent some of Trump’s policies.

An op-ed by Cass Sunstein: Donald Trump’s administration is doing an extraordinary amount of “midnight rule-making” — issuing regulations at the very end of the president’s four-year term. This will cause real trouble for the Joe Biden administration, which will have to try to unwind a lot of it. As of now, Trump’s Office of Information and Regulatory Affairs has a whopping 136 regulations under review, suggesting that there might well be a last-minute tsunami. Some of the last-minute regulations are genuinely terrible, such as new restrictions on granting asylum to people threatened with gang or gender violence. But others are more complicated, in the sense that they are likely to produce disparate reactions among Biden’s supporters — and potentially reveal significant fissures among progressives. A recent example comes from Trump’s Environmental Protection Agency, which has finalized a seemingly technical regulation directing how the agency does cost-benefit analysis. The changes have provoked outrage among those who see it a clear effort to make it harder for the EPA to protect public health and the environment. But if you read the rule carefully, you might hate it less, or like it more, than you expected. The rule is called “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” Ignore the boring name and consider its three principal elements.

Laurence Tribe, a constitutional law professor at Harvard, debunks Stephen Miller's false claim that "alternate" electors could be sent to Congress to overturn Biden's win.

Thirty years ago, East and West Germany reunited after the fall of the Soviet Union. It was 1990, the same year The World Wide Web debuted, plus singer Mariah Carey’s blockbuster hit, "Vision of Love," kicked off her career. And President George H.W. Bush signed into law the Americans with Disabilities Act (ADA) banning discrimination against millions of Americans in education, transportation, and public accommodations. Three decades later, the 1 in 4 adult Americans with disabilities have benefitted from the ADA’s protections. But the benefits are being threatened by the wide-ranging impact of COVID-19, and by the ever-widening inequities in health care and employment. In this 30th anniversary year of the passage of the ADA, the disability rights movement looks back to the bill’s legacy and ahead to new challenges. Guests: Kristen McCosh, commissioner of the Disabilities Commission for the City of Boston. Michael Stein, executive director of the Harvard Law School Project on Disability and visiting professor at Harvard Law School. Jeffrey Yasuo Mansfield, design director at MASS Design Group and a Disability Futures Fellow. Plus, American Sign Language (ASL) interpreter, Aaron Wegehaupt, joined to facilitate communication between everyone.

An article by Curtis Bradley, Jack Goldsmith, and Oona Hathaway: In late October, the United States and Sudan reportedly signed a bilateral agreement “to resolve claims arising from the 1998 East Africa embassy bombings in Tanzania and Kenya.” This agreement apparently requires Sudan to pay hundreds of millions of dollars and commits the United States to enact legislation that would restore Sudan’s immunity under the Foreign Sovereign Immunities Act, which it lost when it was deemed a state sponsor of terrorism. A side agreement apparently even included specific legislative text and gave Sudan a veto over any changes to it. The Sudan agreement was not concluded as an Article II treaty, which must be submitted to the Senate for the advice and consent of two-thirds of the senators present. (The Article II process, as we have previously discussed, is now practically dead.) Instead, like hundreds of other agreements concluded in recent years—and thousands concluded in recent decades—the agreement appears to have been concluded through what is known as an “executive agreement”—a binding international agreement made by the president based on his own constitutional authority or authority granted in advance by Congress. Despite its importance, the public currently has no access to this agreement. The executive branch is not required to publish executive agreements until 180 days after they have entered into force. Nor is this agreement subject to review or approval by Congress. In fact, the executive branch is not even legally obligated to disclose such agreements to Congress until after the agreements are already binding on the United States.

In the drawn-out aftermath of the US election, Amelia’s* dad was losing faith in Fox News. Why wasn’t it covering more allegations of voter fraud, he asked. The network was “a joke”. And so he turned to alternative sources of information: podcasts like Bannon’s War Room, hosted by alt-right figure Steve Bannon, which regularly broadcasts baseless claims about ballot dumps and illegal voters. And an old favourite of his, the rightwing Catholic podcast The Taylor Marshall Show. In the US, Australia and across the Anglosphere, people regularly spend hours with strangers talking directly into their ears. Around one third of Australian news consumers are reported to be podcast listeners, and indications are that numbers have grown during the pandemic. Yet the role of podcasts in the information ecosystem has gone largely unexamined...Apps such as Apple and Google Podcasts “are significant gatekeepers” of what kind of audio content reaches our ears, says Evelyn Douek, a lecturer at Harvard Law School, although they function more as directories for organising and discovering shows than as social networking platforms, and have varying degrees of oversight and control. A Google spokesperson said Google Podcasts indexes audio available on the web much like Google Search. “This can include topics and ideas that may be controversial,” she said. “Google Podcasts ... only removes podcasts from its index in very rare circumstances, largely guided by local law.”