Media Mentions

A new Supreme Court appointment at the twilight of President Trump's first term could shift how justices respond to regulatory challenges and dull Chief Justice John Roberts' swing vote in cases with important energy and environmental consequences. And if Trump loses in November, it could complicate Biden administration efforts to address climate change and make it tougher to roll back Trump's deregulatory agenda. Court watchers expect Trump's nominee to replace Justice Ruth Bader Ginsburg, who died Friday at age 87, to fall ideologically to Roberts' right. That could alter how the court handles administrative law, which governs federal agency actions and can be a key component of regulatory cases...The White House Council on Environmental Quality's new implementing regulations for a foundational environmental law may also find their way to the Supreme Court. The rules are being challenged in part for allegedly diverging too far from the bedrock National Environmental Policy Act. Conservatives have long challenged how much courts should defer to agency interpretations of NEPA. While Roberts has shown an interest in limiting the scope of that deference — known as Chevron deference — a more conservative justice may want to do away with it entirely, said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. She noted that there has been a "certain instability" in recent major administrative law cases where a single vote could have tilted the outcome. "In many of these big cases, [Roberts] is like a surgeon, wielding the scalpel carefully to achieve his desired outcome, but also doing so carefully to limit collateral damage. He is not looking for upheaval," said Freeman in an email. "A new conservative justice may not be as cautious or as concerned about ripple effects." For example, the high court earlier this year also took aim at independent agencies when it struck down the structure of the Consumer Financial Protection Bureau. With an additional conservative vote, the court might have been persuaded to go further and find that all independent agencies are unconstitutional, said Freeman.

She entered Harvard Law School in 1956 as just one of a few women enrolled in a class of 500. A few years later, the woman who would one day sit on the US Supreme Court was famously rejected by dozens of New York City law firms because of her gender. But over the decades that followed, Ruth Bader Ginsburg built a remarkable career as a legal and cultural icon who used her intelligence and courage to fight fearlessly for social justice. And after her death was announced on Friday, entire generations of lawyers — women and men alike — grieved for a jurist whose legacy somehow transcended even the highest court in the nation. “Justice Ginsburg personified the best of what it meant to be a judge,” Harvard Law School Dean John F. Manning said in a statement. “She brought a deep intellectual and personal integrity to everything she did. Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court.” Martha Minow, a former dean of Harvard Law School, recalled Ginsburg’s impact on her own legal career. “I am one of countless people she directly encouraged and deeply inspired to use reason and argument in service of justice and humanity. Justice Ginsburg also showed that it is possible to build deep and meaningful friendships with people despite severe disagreements. At this time of deep social and political divisions, there is much to learn from her life and her commitments,” Minow said in a statement...Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said Ginsburg had inspired generations of women and wound up a reluctant pop culture icon while approaching the law as “a craftsperson who cared about the court’s precedents and was going to work within them.” “Ruth Ginsburg was more than just a brilliant scholar, and a liberal, which is what the press reduced her to,” Gertner said by phone. “She essentially created the law of gender and race discrimination. From the time she was a lawyer, a litigator, she was raising issues about the nuance of discrimination.”

President Donald Trump's administration announced on Friday that it is going to restrict access to TikTok and WeChat, two Chinese-owned mobile apps, starting on Sunday — a move that, experts say, raises serious questions about the administration's acceptance of free speech rights. "The only real change as of Sunday night will be [TikTok users] won't have access to improved apps, updated apps, upgraded apps or maintenance," Commerce Secretary Wilbur Ross claimed when speaking to the Fox Business Network. The new policy will ban both of the apps from American app stores and makes it illegal for American companies to process transactions for WeChat or host its internet traffic. The government will impose similar restrictions on TikTok as of Nov. 12 unless the company convinces the administration that its software does not present a national security risk...Trump has previously waged war against social media platforms that were politically threatening to himself. After Twitter attached a fact-check label to two of his tweets in May, Trump retaliated against the company by signing an executive order that could open the company up to litigation based on content posted by its users. Trump made it clear in the days before signing the executive order that he was doing this to social media platforms that supposedly "totally silence conservatives' voices" and said that "we will strongly regulate, or close them down, before we can ever allow this to happen." At the time he made those comments, Harvard Law professor Laurence Tribe told Salon by email that "the threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment. That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

An article by Noah Feldman: Attorney General William Barr can’t seem to get out of the headlines. Maybe he doesn’t want to. Just this week, the Wall Street Journal reported that Barr suggested to federal prosecutors that they consider charging protesters with sedition — an archaic criminal charge that hasn’t been regularly used by federal authorities since the McCarthy era. Barr also reportedly mused about finding a way to prosecute Seattle Mayor Jenny Durkan for establishing a police-free protest zone in her city. Then, in a speech at Hillsdale College, Barr defended his penchant for overruling prosecutors, comparing them to children in a Montessori school. For any normal attorney general, this week’s controversies would have marked a crisis accompanied by demands that he resign and serious speculation that he would be forced to do so. Not so for Barr, who clearly enjoys President Donald Trump’s support. Barr, more than any attorney general in memory, is inserting himself into the business of criminal prosecution by proposing unorthodox strategies that serve the president’s political ends. Start with the sedition prosecution proposal. To my mind, it’s the most shocking of Barr’s statements. Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so. It’s the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is. Sedition prosecutions in the U.S. have a particularly shameful history. The 1798 Sedition Act was used in a nakedly partisan manner by John Adams’s Federalist administration to prosecute Republican newspaper editors. Dozens were jailed and fined. Although the law was never formally struck down by the courts, it has come to be a model of the kind of law that violates free speech.

An article by Cass Sunstein: It was 1985, I think. The Federalist Society was hosting a conference in Washington on equality. I was a young professor, the token liberal on a panel, and its least distinguished member. The experience was brutal. Professor Paul Bator, a famous scholar who had been my teacher not long before, was on the panel, and at one point he whispered in my ear. “Just stop talking,” he said. “No one in the room wants to hear you.” Humiliated, I retreated to my hotel room. At about 9 p.m., the phone rang. The voice on the other line said: “Hi Cass, it’s Ruth Ginsburg. We haven’t met, but I wanted to say that you did a wonderful job. It was a tough panel and such a tough crowd — you were great!” We talked for a long time, about equality, the Constitution, rationality and respectful disagreement. I hadn’t done a wonderful job, not close, but she sensed my vulnerability and she wanted to help. That defined much of her life, as a person and as a justice. She was kind; she was also steely. She was serious; she also had a twinkle in her eye, and she was full of mischief. Two opinions help explain what she was all about. The first, decided in 1996, was United States v. Virginia, in which she wrote the Court’s historic opinion striking down the refusal of the Virginia Military Institute to admit women. She declared that the Constitution does not allow federal or state governments to deny women the “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” In defending its discriminatory practice, Virginia pointed to the differences between men and women. Ginsburg responded that those differences are “cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.” They may not be invoked, she wrote, “to create or perpetuate the legal, social, and economic inferiority of women.”

An article by Randall Kennedy and Ilya Somin: This presidential election season joins the last several in being attended by accusations that certain candidates are ineligible because of the requirement in Article II of the Constitution that the president be not only a citizen, but a “natural born” citizen. This time around, some have claimed that Sen. Kamala Harris is ineligible for the presidency because, though born in the United States, her parents were immigrants who had not become citizens by the time of her birth. We believe this claim is untenable. But the need to address the matter at all highlights why eligibility distinctions that turn on place of birth or status of parent ought to be abolished. That eligibility for our highest political office is conditioned by an invidious discrimination buried in the Constitution itself should be highly disturbing. In 2016, the targets were Republican candidates Ted Cruz (born in Canada to U.S.-citizen parents who had immigrated from Cuba) and Marco Rubio (also the son of Cuban immigrants). In 2008 and 2012, Barack Obama, was assailed by “birthers”who falsely claimed he was born outside the United States. Obama's 2008 GOP opponent, John McCain, came under attack because he was born in what was then the Panama Canal Zone. Such episodes are all too likely to recur. In an increasingly diverse society, it will often be possible to claim tendentiously that some candidate or other is ineligible.

A growing collection of flowers, posters, hand-written notes and low-burning candles have accumulated on the steps of the Harvard Law School library, a makeshift memorial assembled by Harvard students and admirers of the late alumnus and Supreme Court Justice Ruth Bader Ginsburg, who died Friday at the age of 87. Leaning in to read the notes, second-year Harvard Law student Jin Lee ‘22 took stock of the vigil Sunday, after two days of reflecting on Ginsburg’s legacy. “I'm just really grateful for what she has done for women in this country and for women at this school,” Lee said. “She has definitely influenced my decision to become a lawyer. She has shown me that as long as you keep pushing on the limits, they will expand. And that's what I hope to do.” Ginsburg enrolled at the law school in 1956, entering into a class of 552 men and only eight other women. The dean at the time famously asked the nine women, at a dinner party, why they deserved to take a place at the university that could be taken by a man. A plaque in Harvard’s Austin Hall now commemorates another discrimination those women faced: the building contained the only women’s restroom on campus, which meant female students had to run across campus to do their business and run back to make it in time for class... Notes at the memorial nodded to Ginsburg’s trailblazing legacy and the difficulties she faced leading up to her appointment as the second woman on the bench of the nation’s highest court. “Thank you for inspiring generations of women,” one note reads, scrawled on a post-it. “Lawyers and all else. We lost a hero today.”

... Ginsburg's life and work have continued to inspire generations behind her, including many students who walk in her footsteps at Harvard Law School. Maura Smyles, "My year was I believe the second year in HLS history to have more women than men in our class, so in that sense she's a trailblazer." ... Current students created this memorial outside of Harvard Law School Library. Catherine Walker-Jacks said, "I just wanted to create a place for people to mourn her and to share the impact that she's had on our lives."

The time Justice Ruth Bader Ginsburg spent at Harvard Law School during the 1950s presented challenges in and out of the classroom. ...On Saturday, mourners gathered at the site where the young Ginsburg endured those pivotal trials and grieved the jurist, who persevered her way to the US Supreme Court, opening doors of opportunity for women and others at stops along the way. “She’s the reason we’re here,” said Carolina Rabinowicz, 24, a first-year Harvard Law School student from New York, who visited a makeshift memorial outside Langdell Hall, a tear staining her blue face mask. Catherine Walker-Jacks, 25, another first-year student, said her class was reading a 2011 dissent authored by Ginsburg only hours before her death was announced Friday. ... Annie Whitney, 24, a first-year Harvard law student from North Carolina, said Ginsburg’s contributions are deeply felt. “RBG’s legacy," she said, "is one that so many carry forward.”

Ruth Bader Ginsburg was remembered Friday night by Harvard Law School's dean as an "inspiring and courageous human being" who was among the great Supreme Court justices. The justice, who died Friday at the age of 87, attended Harvard Law, where she was famously one of only nine women in her class of hundreds. She was also among the first women to serve on its esteemed journal, the Harvard Law Review. ...On Friday night, current Harvard Law School Dean John Manning released his statement honoring Ginsburg's memory. "Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court. She was also one of the most impactful lawyers of the twentieth-century," he said.

Supreme Court Justice Ruth Bader Ginsburg is known as a trailblazer for gender equality and equal rights, and her death has reverberated around the nation. Former Boston federal judge and WBUR legal analyst Nancy Gertner knew Justice Ginsburg personally, and spoke with WBUR's Sharon Brody to share her thoughts and memories of a woman she calls "the model of what we wanted to be."

An op-ed by Nancy Gertner: I was in my late 20s, attending a conference for women lawyers in the 1970s. I sat in the front row of a large auditorium for the keynote address. The speaker was Ruth Bader Ginsburg, the founder of the American Civil Liberties Union Women’s Rights Project. I was mesmerized. She was all that I wanted to be. To devote one’s life to the fight for civil rights, to use legal skills to effect justice, better yet to make a difference — I could think of nothing greater. And I was not alone; generations of civil rights lawyers looked to emulate her. Ginsburg’s vision of gender equality was decades ahead of her time. It went beyond just empowering women to compete for “men’s” roles. While stereotypes distorted women’s view of what was possible, they also impeded men, no less trapped in gender-based assumptions. Equality meant that both sexes should be free to assume all of society’s roles without preconceptions. My son can be a caregiver; my daughter can be an executive. When the school administrators wanted Ginsburg to come to school to discuss her son’s misconduct, she famously said, “This child has two parents.”

An op-ed by Michael Klarman: Ruth Bader Ginsburg was appointed to the US Court of Appeals for the District of Columbia Circuit by President Jimmy Carter in 1980, and to the Supreme Court by President Bill Clinton in 1993. I had the good fortune to clerk for her when she was on the DC Circuit. ... I have two favorite stories about Ginsburg from my clerkship that I like to share with my students. I'll recount the first of them up here. Both have to do with sports -- an obsession of mine that the Justice did not share. Soon after her appointment to the DC Circuit, the Washington football team won the Super Bowl, and there was a celebratory parade down Constitution Avenue, which runs right beside the courthouse. Ginsburg asked her secretary what the noise was about. "Why, judge, that's the Super Bowl parade," her secretary replied. To which Ginsburg responded, "What's the Super Bowl?"

She entered Harvard Law School in 1956 as just one of a few women enrolled in a class of 500. A few years later, the woman who would one day sit on the US Supreme Court was famously rejected by dozens of New York City law firms because of her gender. ...“Justice Ginsburg personified the best of what it meant to be a judge,” Harvard Law School Dean John F. Manning said in a statement. “She brought a deep intellectual and personal integrity to everything she did. Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court.” ... Martha Minow, a former dean of Harvard Law School, recalled Ginsburg’s impact on her own legal career.“I am one of countless people she directly encouraged and deeply inspired to use reason and argument in service of justice and humanity. .. At this time of deep social and political divisions, there is much to learn from her life and her commitments.” ... Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said Ginsburg had inspired generations of women and wound up a reluctant pop culture icon while approaching the law as “a craftsperson who cared about the court’s precedents and was going to work within them.”

U.S. Supreme Court Justice Ruth Bader Ginsburg ’56-58, whose lifelong fight for equal rights helped pave the way for women to take on high-profile roles in business, government, the military, and the Supreme Court, died on Sept. 18. She was 87. “Justice Ginsburg personified the best of what it meant to be a judge. She brought a deep intellectual and personal integrity to everything she did,” said John F. Manning ’85, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “... We have lost a giant.” ... “Very few individuals in history come close to the extraordinary and significant role played by Justice Ginsburg in the pursuit of justice before she joined the bench,” said former Harvard Law School Dean Martha Minow, the 300th Anniversary University Professor at Harvard. ... “The Constitution’s heart aches at Ruth Bader Ginsburg’s passing,” Laurence Tribe ’66, the Carl M. Loeb University Professor, Emeritus, at Harvard Law School. ... Harvard Law School Professor Daphna Renan, who served as a law clerk for Justice Ginsburg during the 2006-2007 term, said: “RBG was tenacious, unflappable, and deeply wise.

An article by Noah Feldman: Even before Attorney General William Barr’s reportedsuggestion that protesters be prosecuted for sedition, and that the mayor of Seattle could be targeted with a criminal investigation, the AG was up to his usual stunts. His repeated comments on ballots and voting demonstrate his distinctive way of distorting the truth. Call it lying by legalism. Unlike President Donald Trump, Barr rarely makes a statement that blatantly contradicts reality. Instead, he says deeply misleading things that rely on some contorted, technical explanation. The upshot is that he must be able to tell his conscience that he isn’t lying all — while achieving the Trumpian goal of communicating a state of affairs that is contrary to the truth. There’s something distinctively lawyerly about this method. And it’s a big part of why people hate lawyers. Case in point: At a press conference in Arizona, Barr said“there’s no secret vote” when you mail in your ballot as part of absentee or mail-in voting. “The government and the people involved can find out and know how you voted,” he insisted, “and it opens the door up to coercion.” Fact-checkers hastened to point out that Barr was ignoring laws and procedures that are created specifically to ensure that no one can associate your vote on your mail-in ballot with your particular name and identifying information. Some states have you put your ballot inside a sealed envelope that is itself inside another envelope that has your information on it. In other states, laws prohibit revealing the vote on the ballot while the identity of the voter is being verified. Put simply, Barr distorted the truth. Yet Barr could nevertheless defend himself by saying that, strictly speaking, election officials who choose to break the law and ignore their own procedures could conceivably connect a mail-in ballot with the identity of the voter. In this extremely narrow sense, Barr can claim that he wasn’t “lying”: The possibility that he describes does logically exist.

Bolivia has descended into a nightmare of political repression and racist state violence since the democratically elected government of Evo Morales was overthrown by the military on 10 November last year. That month was the second-deadliest in terms of civilian deaths caused by state forces since Bolivia became a democracy nearly 40 years ago, according to a study by Harvard Law School’s (HLS) International Human Rights Clinic and the University Network for Human Rights (UNHR) released a month ago. Morales was the first indigenous president of Bolivia, which has the largest percentage of indigenous population of any country in the Americas. His government was able to reduce poverty by 42% and extreme poverty by 60%, which disproportionately benefited indigenous Bolivians. The November coup was led by a white and mestizo elite with a history of racism, seeking to revert state power to the people who had monopolised it before Morales’ election in 2005. The racist nature of the state violence is emphasised in the HLS/UNHR report, including eyewitness accounts of security forces using “racist and anti-indigenous language” as they attacked protesters; it is also clear from the fact that all of the victims of the two biggest massacres committed by state forces after the coup were indigenous. What has received even less attention is the role of the Organization of American States in the destruction of Bolivia’s democracy last November. As the New York Times reported on 7 June, the organisation’s “flawed” analysis immediately following the 20 October election fuelled “a chain of events that changed the South American nation’s history”.

The Supreme Judicial Court on Thursday issued a ruling that will make it easier for defendants to prove they are the victim of illegal racial profiling when pulled over during a traffic stop. The decision, hailed as a major victory for advocates for racial justice, came on the same day the court released an opinion building on a landmark 2016 decision in which the SJC held that flight is not evidence of guilt when a black man flees police because he may have reason to believe he is being racially profiled...Under legal precedent until now, a defendant trying to prove that he was subject to an illegal racially-motivated traffic stop had to rely on statistical evidence showing racial bias by that officer or in that jurisdiction. But that evidence is hard to come by, and the justices concluded, in a decision written by Justice Frank Gaziano, that it was too high a burden to meet. Under the new precedent set by the SJC in Thursday’s case, a defendant must establish “a reasonable inference” that the officer’s decision to initiate the stop was motivated by race, based on specific facts from the circumstances surrounding the stop. This could include the officer’s past patterns of enforcement, whether the officer was a traffic cop, whether the officer followed the car for an extended period of time, how the officer behaved during the stop, how serious the offense was, and whether the officer adhered to departmental policies...In the precedent-setting parts of the unanimous, 34-page ruling, written by Gaziano, it found that age – although not race – can be considered in deciding when the police are considered to have “seized” or stopped a person. The court found that a young person is more likely to feel coerced by the police early on in their interaction, but the justices did not reach a conclusion on whether race should be considered...Katharine Naples-Mitchell, an attorney with the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, who wrote a brief in the case, said she is disappointed that the court did not allow for the use of race in determining when a seizure occurred. But she said it is a new development that the court recognized that evasive behavior by a black person may be justified because “black people may be more likely to feel uncomfortable around police because of a history of racism and racial profiling.”

“When did Walmart grow a conscience?” The question, asked approvingly in a Boston Globe headline last year, would have made Milton Friedman turn in his grave. In a landmark New York Times Magazineessay, whose 50th anniversary fell on September 13th, the Nobel-prizewinning economist sought from the first paragraph to tear to shreds any notion that businesses should have social responsibilities. Employment? Discrimination? Pollution? Mere “catchwords”, he declared. Only businessmen could have responsibilities. And their sole one as managers, as he saw it, was to a firm’s owners, whose desires “generally will be to make as much money as possible while conforming to the basic rules of the society”. It is hard to find a punchier opening set of paragraphs anywhere in the annals of business...Some bosses claim they can do this, keen to win public praise and placate politicians. But they are insincere stewards, according to Lucian Bebchuk, Kobi Kastiel and Roberto Tallarita, of Harvard Law School. Their analysis of so-called constituency statutes in more than 30 states, which give bosses the right to consider stakeholder interests when considering the sale of their company, is sobering. It found that between 2000 and 2019 bosses did not negotiate for any restrictions on the freedom of the buyer to fire employees in 95% of sales of public firms to private-equity groups. Executives feathered the nests of shareholders—and themselves. Such hypocrisy is rife. Aneesh Raghunandan of the London School of Economics and Shiva Rajgopal of Columbia Business School argued earlier this year that many of the 183 firms that signed the Business Roundtable statement on corporate purpose had failed to “walk the talk” in the preceding four years. They had higher environmental and labour compliance violations than peers and spent more on lobbying, for instance. Mr Bebchuk and others argue that the “illusory hope” of stakeholderism could make things worse for stakeholders by impeding policies, such as tax reform, antitrust regulation and carbon taxes, if it encourages the government blithely to give executives freedom to regulate their own activities.

An asthmatic employee may work from home due to the Covid-19 pandemic, and their Massachusetts employer can’t force them to return to the office, a federal judge ruled, barring the worker’s termination for at least 60 days. In a rare instance of a worker seeking a preliminary injunction in a disability bias case, social worker Gabriel Peeples showed that they’re likely to prevail on the merits of their claims under federal and state law, the U.S. District Court for the District of Massachusetts ruled Wednesday, using the non-gender specific pronoun to refer to Peeples. The decision provides early evidence about how the pandemic can alter Americans with Disabilities Act cases, during both the current phase of the pandemic and a future when the virus is under control. “Employers who previously and staunchly maintained that the essential job functions simply could not be performed away from the office will now face months of evidence of telecommuting that worked well,” said Michael Stein, law professor and executive director of Harvard Law School’s Project on Disability Courts will also have to reconsider the scope of what respiratory-related impairments rise to a level of being classified as a disability under the ADA, Stein said. The ruling also highlights the impact of the pandemic on the legal test for winning an emergency order. Beyond showing that they’d be likely to win on the merits, the court found that Peeples could suffer irreparable harm by losing their job in the middle of a pandemic. The court also said public health concerns weighed in Peeples’ favor, because the mental health counseling the plaintiff provides. Stein and two other legal scholars told Bloomberg Law that they’d never seen another request for preliminary injunction in an ADA employment case.

To mark a week-long series of articles looking at food and climate change, Carbon Brief hosted its latest webinar on Thursday...The topic for discussion was: “Do we need to stop eating meat and dairy to tackle climate change?” It comes after an interactive Carbon Brief explainer exploring the climate impact of meat and dairy, and an in-depth Q&A examining dietary trends around the world. Other articles in the series include guest posts on emissions from coronavirus-related food waste and future diets in low- and middle-income countries, as well as a piececompiling expert views on how diets will need to change to achieve international climate targets...The webinar featured four panelists, whose collective expertise covers a range of topics relating to food and climate change...Dr. Helen Harwatt is senior research fellow at Chatham House and food and climate policy fellow at Harvard Law School. At the end of last year she wrote a letter to Lancet Planetary Health calling for countries to set timeframes for “peak livestock” in order to meet the Paris Agreement targets. She talked about the carbon sequestration benefits that can come from restoring native vegetation on agricultural land, following dietary shifts away from animal products. This was based on her recent study published in Nature Sustainability.