Media Mentions

In the wake of regulators formally rejecting a petition to improve the conditions of non-human primates used in federally funded research studies, a group of local animal rights advocates has sued the US Department of Agriculture, saying the agency refuses to raise standards for the animals. Six years ago, the New England Anti-Vivisection Society, the Animal Legal Defense Fund, and other groups called on regulators to create better conditions for some 106,000 non-human primates held in captivity. The government didn’t respond to their petition until last fall, after Harvard’s Animal Law and Policy Clinic filed a lawsuit demanding a response to their allegations, which include the government’s failure to ensure adequate living conditions for rhesus macaques, baboons, marmosets, and other primates...The lawsuit, filed in conjunction with the Animal Legal Defense Fund of California, contends that the government has a duty to improve research primates’ living conditions, saying they share many cognitive abilities and needs with humans. Like humans, the primates exhibit complex emotions, develop relationships, and require mental stimulation. “The current regulations allow research labs to make their own rules,” said Brett Richey '21, a Harvard Law student who helped draft the lawsuit. “The lives of non-human primates who think, feel, care, regret, imagine, and invent, just like us, are on the line. We cannot ignore their suffering any longer.”

"Too often, executive compensation in the us is ridiculously out of line with performance…The deck is stacked against investors.” It was with these words that in 2006 Warren Buffett, a legendary investor and red-blooded capitalist, challenged the received wisdom in corporate America about CEO pay. This maintains that bosses deserve generous rewards because these are tightly linked to their companies’ financial performance. Fourteen years’ worth of evidence later the received wisdom is still looking shaky. “Pay for performance” has been the mantra of America Inc over the past few decades. A small circle of influential pay consultants, compensation analysts and academics has argued that American firms must pay top dollar for top candidates because they compete in a global market for talent. They argue that firms have grown more complex and bosses must know how to manage new technologies and the vagaries of globalisation...Critics point to problems besides rewarding luck instead of skill. One is rent-seeking by bosses, who can take advantage of the opacity that tends to surround pay-setting. The process was long a dark art, explains David Larcker of Stanford University’s Graduate School of Business. Lucian Bebchuk of Harvard Law School, another expert in the field, has argued that American CEOs, who tend to tower over their boardrooms, have too much influence over this opaque process. Don Delves of Willis Towers Watson, a consultancy with a big pay-advisory arm, points to “lots of positive changes” in pay-setting over the last two decades, from greater independence for compensation committees to more sophisticated setting of performance targets. However, he concedes that bosses retain “more influence over their own pay than any other person”.

On Thursday, the Supreme Court released decisions in two of the most highly-anticipated cases of the term, both involving President Trump's personal financial information. We break down the rulings, and discuss the legal and political fallout with WBUR Senior News Correspondent Kimberly Atkins, and Nancy Gertner, WBUR Legal Analyst, retired federal judge and senior lecturer at Harvard Law School.

In a pair of historic rulings, the U.S. Supreme Court has rejected President Trump's claim of absolute immunity under the law. The vote was 7 to 2 in two decisions Thursday involving grand jury and congressional subpoenas for Trump's pre-presidential financial records. Chief Justice John Roberts wrote the court's two decisions, declaring, "In our system, the public has a right to every man's evidence," and "since the founding of the Republic, every man has included the President of the United States." Roberts was joined in the two cases by the court's four liberals, plus the two justices appointed by President Trump, Neil Gorsuch and Brett Kavanaugh. In the grand jury case, however, the two agreed only on the bottom line; they wrote separately to say they would have made it more difficult for the grand jury to subpoena the president's financial records...Harvard Law Professor Noah Feldman had a somewhat different take, noting that the Court, for the first time had ruled in a case that pits presidential and congressional powers against each other. "In that sense, the court has made itself more powerful relative to Congress," Feldman said. "On the other hand, before, when congress pressed, and the president absolutely refused to participate, there was nowhere to get a third party to adjudicate. Now there is."

An article by Cass Sunstein: In the last 15 years, the U.S. Supreme Court has had three swing justices, those most likely to deliver the decisive vote when the other eight are deadlocked. They are Sandra Day O’Connor, Anthony Kennedy and (now) John Roberts. They’re very different from one another, and there’s never been one quite like Roberts. A swing justice has outsized influence. Whether the issue before the court involves voting rights, free speech, presidential power or abortion, the swing justice is the person to whom lawyers most direct their attention. O’Connor, Kennedy and Roberts are hardly the only swing justices in the nation’s history. In the second half of the 20th century, other examples include Potter Stewart, Byron White, Lewis Powell Jr. and John Paul Stevens. While it is reasonable to say that swing justices are “in the middle,” it’s too simple to describe them as “moderates.” Swing justices have embraced dramatically different approaches to constitutional law. O’Connor, who joined the court in 1981, was a judicial minimalist. She attended carefully to the facts of particular disputes. She distrusted abstract theories about freedom and equality, and she liked to avoid sweeping rulings. With respect to free speech, for example, she favored narrow, case-by-case judgments, which would not reorient constitutional law in major ways. Because of her attention to detail and her openness to competing points of view, she often cast the decisive vote in important cases. She spoke quietly, but carried a big stick.

An article by Noah Feldman: The Supreme Court issued two landmark decisions today on President Donald Trump’s financial records. The first, Trump v. Vance, related only to a New York state criminal subpoena; the second, Trump v. Mazars, related to congressional subpoenas of Trump's tax returns. In Vance, the court ruled that Trump's financial records may be subpoenaed by the New York district attorney’s office as part of a criminal investigation. It’s a devastating blow for the president. But Mazars was a tactical win for Trump, insofar as it likely means the courts cannot reach a final ruling on the issue in time for the November 2020 election. The Mazars decision is the more nuanced ruling, and we’ll get to that. But let’s start with the Vance case, which elicited a rather extraordinary opinion from Chief Justice John Roberts. Trump v. Vance: Roberts, joined by the court’s four liberals, wrote the majority opinion, which relied on precedent to conclude that the president has no special protection against turning over his papers to a state prosecutor. This is yet another decision this term that consolidates Roberts as the only really important power on the court — and as a justice who has decided to be sure that rule of law extends to Donald Trump. The ruling started with the founding father we love to hate, Aaron Burr. Yes, the same man who was the nemesis of Alexander Hamilton, killed him in a duel, and went on to organize a conspiracy to create a new country carved out of the western part of the United States.

Robin Roberts chats with creator Lin-Manuel Miranda, director Thomas Kail, Professor Annette Gordon-Reed, and members of the cast for "Hamilton: History Has Its Eyes on You," which will premiere on Disney+.

An article by Adrian Vermeule: The end of a Supreme Court term almost always sees one or more conservative justices vote to hand the liberal justices a narrow but important victory. In case after case, conservative swing justices appear irresistibly drawn to join the liberals. So it went this year. Chief Justice John G. Roberts Jr. defected to strike down admitting-privileges regulations for abortion providers and keep in place protection for immigrants brought to this country as children. The chief justice and Justice Neil M. Gorsuch joined their liberal colleagues to create new anti-discrimination prohibitions for sexual orientation and gender identity. This is a familiar pattern. Last term, the chief justice dealt the administration a significant loss by frustrating its plans to add a citizenship question to the census. In the longer run, a string of 10 GOP appointments of new justices since 1973, compared to a mere four Democratic appointees, has produced little progress toward the central conservative goal of overturning Roe v. Wade, thanks in part to a series of dramatic defections from supposedly solid conservatives. Why do these defections occur? One theory is that there is nothing to explain; justices simply follow their best understanding of the Constitution, and let the chips fall where they may. No doubt that is that is what the justices themselves think: that they are earnestly seeking to get the law right. But this explanation fails to account for a basic asymmetry: While conservative justices often break ranks to give liberals a 5-to-4 majority, liberal justices rarely do the same in reverse. If the legal merits cut across political divides, there should be no such persistent imbalance. Some conservatives then claim that liberal justices are, despite their protestations, systematically less principled — a suspiciously partisan view that credits the reported experience of only some justices and discounts that of others.

An article by Christopher Fonzone, Joshua Geltzer and Laurence Tribe: With November fast approaching, here’s a recurring question that can’t easily be dismissed as alarmist fretting or grim humor: What if President Trump loses his bid for reelection but refuses to concede and instead clings to power? House Speaker Nancy Pelosi expressed this concern last year, saying “we have to inoculate against that.” So did Trump’s prison-bound former lawyer Michael Cohen. Testifying before Congress, Cohen said, “I fear that if he loses the election in 2020, that there will never be a peaceful transition of power.” Even Joe Biden, Trump’s Democratic rival, doesn’t discount the possibility that Trump would make himself difficult to dislodge, but he suggested that others in government would get the job done: “I promise you, I’m absolutely convinced that they will escort him from the White House with great dispatch.” If Trump does try to hang on to a presidency he’s lost, however, he can’t actually do very much all by himself. Running the executive branch requires help. Thankfully, there are laws that stop others from using the authorities of the executive branch on behalf of anyone other than the legitimate president. If William P. Barr, for example, tried to exercise the powers of the attorney general after a Trump loss, he could be subject to criminal prosecution. The circumstances matter. If Trump legitimately wins on Election Day, he wins — so be it. And if he loses, well, American tradition calls for a peaceful transfer of power to one’s successor. But given Trump’s rampant tradition-busting, there’s more than a little reason to worry that he’ll continue to reassert baseless claims that there was election fraud via mail-in ballots or foreign election interference favoring the Democrats, even after he has failed to persuade lawfully constituted authorities of such fantasies.

An article by Nicholas Stephanopoulos: Until recently, litigation about voting during the COVID-19 crisis followed a predictable pattern. Voters would complain about states’ restrictive regulations, conservatives would rush to the laws’ defense, and courts would referee the disputes. Powerhouse right-wing lawyers, however, have now opened a troubling new front in the voting wars. They now claim that it’s unconstitutional for states to make it easier to vote while the pandemic rages. Relaxations of voting rules supposedly give rise to fraudulent votes that impermissibly dilute the ballots cast by law-abiding citizens. This novel argument should—but probably won’t—be laughed out of court. As it spreads across the country, it threatens to put states in an impossible position: exposed to liability not just if they ignore, but also if they try to alleviate, the pandemic’s effects on the electoral process. Before this new breed of cases began appearing, most suits about voting during the pandemic had the same setup. Some existing electoral regulation—an eligibility limit for voting absentee, say, or a requirement that mail-in ballots be notarized—would prevent certain people from voting. So they would go to court alleging an excessive burden on their constitutionally protected right to vote. In response, some state official would argue that the policy served an important interest, most often the prevention of fraud. In April, the Supreme Court decided one of the many such cases, involving the rules for absentee voting in Wisconsin’s primary election.

An article by Ashley Nunes: The pandemic isn’t even over, but the fight for more space is already on. As of July 1, both Air Canada and WestJet have stopped blocking access to adjacent seats on their planes. Previously, these carriers had embraced “seat distancing” policies, allowing passengers to sit farther away from one other because of potential COVID-19 transmission. Not any more. Instead, Canadians can now expect the usual tight squeeze onboard. Predictably, the move isn’t going over well. One couple, expecting an empty adjacent seat, likened the new policy to having “the rug pulled out from underneath” them. “I just thought that (the airlines) would want to take our safety more seriously,” the couple lamented to the CBC. Manitoba MP Niki Ashton shared their sentiment, calling for Ottawa to apply the same physical distancing rules that apply on land, in the air. According to Ms. Ashton, that airlines want to revert to the old ways of doing business “really speaks to (their) profit-driven agenda.” All of this criticism misses the mark. Let’s start with an airline’s “contract of carriage.” This document defines the rights of passengers and the responsibilities of the airline. It lays out in painstaking detail what happens if your flight is cancelled, your luggage is misplaced or you are denied boarding. What the contract of carriage doesn’t address are passenger rights when it comes to adjacent seats. The reason? You have none. In what should surprise few flyers, paying for one seat on a plane entitles you to, well, just one seat. To limit the spread of COVID-19, carriers like Air Canada offered passengers more space by limiting seating in adjacent seats. But the move only ever applied to cases “whenever possible.” In other words, it’s courtesy, not compulsory. If an airplane can seat 100 passengers and 100 passengers show up, the airline is well within its rights to accommodate them all. There’s a lesson here for flyers: it pays to read the fine print (or at the very least, the airline’s tweets) before buying a ticket.

There have been indications for a while now that some Massachusetts district attorneys do not like the way Suffolk DA Rachael Rollins does her job. Now they are trying to bully her. As for Rollins — let’s just say she’s not taking it. The district attorneys’ displeasure with Rollins burst into open battle last week, with a scorching crossfire of filings in a case with life-altering implications for some inmates: those who killed in their late teenage years and are now serving life sentences without the possibility of parole. District attorneys Michael O’Keefe, Jonathan Blodgett, Michael Morrissey, and Timothy Cruz correctly believe that Rollins will not take as hard a line in the case as they would, that she will seek to lift the the no-parole mandate for some inmates. So they filed an extraordinary motion to intervene in the case — to reach into her jurisdiction to head off an outcome they won’t like. In a rocket of a court filing, Rollins responded by accusing the four men of seeking to undermine her because she is a Black woman...So hard-liner Cape and Islands DA O’Keefe and his three colleagues sought to intervene in the Suffolk case — not to file amicus briefs arguing their case, which is the normal route for registering disagreement, but to actually join the case and argue in another district’s courthouse. Experts say that kind of intervention is unprecedented. “The four DAs have no basis to intervene in the criminal case of another DA. Period. None,” said retired federal judge Nancy Gertner, who now teaches law and neuroscience at Harvard Law School. “That is insulting, and over the top.” To be fair, Rollins’s rejection of their attempts to interfere was over the top too, as official court filings go. But Rollins, who says the other DAs never gave her the courtesy of warning her about the unprecedented step they were taking, is right to be angry.

An article by Cass Sunstein: Does President Donald Trump want to deport everyone who is not an American citizen? Sometimes it seems that way. His administration recently announced that it may send home international students at colleges and universities that choose online learning in the fall, in an effort to reduce the risks associated with the coronavirus pandemic. The announcement is cruel. It’s also stupid. It is cruel to those students, many of whom are now living in the U.S., and who are suddenly threatened with deportation. It is stupid because one of the greatest U.S. strengths is its unparalleled institutions of higher education, which attract the world’s best students. Many international students go back to their own countries as friends of the U.S. and its people, keenly appreciative of the best American traditions and values. Many of them end up in positions of leadership at home, where they work closely and well with Americans. If you were an enemy of the U.S., and aimed to weaken it and to diminish its influence, you would be cheering steps to prevent international students from studying here. It’s no wonder that the new rule has prompted a lawsuit, filed on Wednesday by Harvard University and the Massachusetts Institute of Technology. But in some ways, the most fundamental problem lies elsewhere. The Department of Homeland Security announced its new policy on international students without using a process that guards against both cruelty and stupidity: public notice and comment.

An article by Noah Feldman: The Little Sisters of the Poor, an order of Catholic nuns, have been fighting the contraceptive mandate of the Affordable Care Act since 2013. Today the Supreme Court gave them a victory — but not the final victory they sought, namely that they’re automatically entitled to an exemption from the ACA under the Religious Freedom Restoration Act. Nonetheless, this ruling — along with other key decisions this term — demonstrates that the conservative majority of the court has definitively entered the era of religious exemptions. If the idea of the Little Sisters before the Supreme Court rings a bell, congratulations on the acuity of your memory. After President Barack Obama signed the ACA, his Department of Health and Human Services gave an exemption to the contraceptive mandate to certain religious organizations like the Little Sisters, while still ensuring contraceptive care would reach their employees. The way the exemptions worked was essentially that an organization seeking not to pay for its employees’ contraceptive care would submit a certificate to HHS explaining that it was a nonprofit religious organization with conscientious objection to contraception. The religious entity would then provide a copy of the certificate to its health insurer — which would then itself pay for the contraceptive care, not charging the religious employer. The Little Sisters objected that even this process violated their religious liberty under RFRA. The case went all the way to the Supreme Court, where the untimely death of Justice Antonin Scalia in February 2016 robbed them of what would almost certainly have been a win. Instead, in May of 2016, the justices (who presumably were deadlocked 4-4) tried ham-fistedly to order the Obama administration and the Little Sisters to work out a solution. Neither side was prepared to compromise in a way that would satisfy the other.

A podcast by Noah Feldman: Neville Sanjana, a geneticist at the New York Genome Center and New York University, discusses his research into a coronavirus mutation that may be helping the virus spread faster. Plus, Noah discusses the Supreme Court ruling on robocalls.

In a major defeat for the Trump administration, one major pipeline project was canceled and two others shut down this week after years of sustained grassroots opposition. While the outcome for two of the pipelines remains uncertain, this week’s developments represent a major victory for a diverse coalition of community activists, volunteer residents, Tribal members, scientists, farmers and landowners, climate activists, and outdoor enthusiasts who spent years fighting to keep the pipelines off their lands... “This decision demonstrates the power and the importance of NEPA,” Caitlin McCoy, a staff attorney with the Harvard Law School Environmental and Energy Law Program, told Sierra. “When you read the decision, you see the way the court talks about the importance of an agency considering all the impacts of a project before undertaking that project. The blame lies with the Army Corps of Engineers, which has been working for years to downplay the impacts of this pipeline when it was clear all along that there were significant impacts. Instead of taking the time to do the full EIS, there was a rush to get this project going as soon as possible.” The Trump administration and its Council of Environmental Quality are soon expected to announce a rollback of NEPA regulations in an attempt to limit the scope of what projects can trigger a NEPA review. Even if the administration does so, however, it will not affect the Dakota Access pipeline review, according to McCoy, as the judge has already indicated the court expects a full EIS under existing regulations and case law.

Nearly 10 years ago, Wilfred Dacier was told he would be a free man. But for Dacier, now 63, his view continued to be a little corner of the town of Gardner that changed only with the seasons. The positive vote he received from the Massachusetts Parole Board in 2010 did not result in his release from the North Central Correctional Institution. That’s nominally because Dacier has been diagnosed with schizoaffective disorder, and the parole board made his release conditional upon him moving to a secure facility run by the state Department of Mental Health, which repeatedly declined to give him housing. But Dacier’s incarceration for nearly a decade after being granted parole offers us Exhibit A of why many say the Massachusetts Parole Board is ripe for reform...That Dacier remained in prison at all after being granted parole, let alone for most of a decade, is “crazy,” says Joel Thompson, a managing attorney at the Harvard Prison Legal Assistance Project at Harvard Law School, who represents Dacier. “In 2010 you paroled him, and the only thing he has messed up since then is failing to get DMH to take him. Why aren’t we just hashing out a release plan together?” Dacier’s situation is not unusual, say prisoners’ rights advocates, citing both the parole board’s treatment of mentally ill prisoners and long delays in making decisions and releasing people to the community...Another prisoner, Richard Crowell, took his concerns that he was being refused parole because of a disabling brain injury to the Massachusetts Supreme Judicial Court — and won...Crowell, now in his late 70s, went before the board again in October 2018. His lawyer, John Fitzpatrick, a supervising attorney at the Harvard Prison Legal Assistance Project, said in early June that “Richard remains in prison, largely, if not solely, because he is brain damaged and the state can’t figure out what else to do with him.” The parole board notified Crowell last week that he has been approved for release...Katy Naples-Mitchell, a legal fellow with the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, says problems with the parole board, and oversight from the governor, are “antithetical to public health, community safety, good governance, and second chances.” She says this is particularly troubling for people of color who disproportionately populate the system. “The failure to hold commutation hearings for hundreds of pending petitions is a dereliction of duty,” she says, “and one of many ways in which the parole board actively perpetuates structural racism.”

An article by Jenny Liang '21: China has been mentioned in more than 60 FCPA corporate enforcement actions, including eight in 2019 alone. So FCPA practitioners have long been wary of potential problems there. And yet, with serious recent developments potentially impacting trade and on-the-ground operations, now is a good time to reassess China compliance risks. Here are some trends emerging from enforcement actions and legal developments, in both the United States and China, to be aware of: China-based executives as agents for U.S. parent companies. The 2019 “Jerry Li and Mary Yang” case was groundbreaking. It was the first time Chinese nationals working for subsidiaries of a U.S.-based company (Herbalife) were charged by the DOJ as agents of the issuer parent company, despite having no formal legal ties with it. The defendants were both Chinese citizens who entered into employment contracts only with Herbalife’s wholly-owned Chinese subsidiary and not with Herbalife itself. Such a broadened agency theory could bring numerous Chinese executives working in subsidiaries of U.S.-based firms under FCPA jurisdiction. This case stood in sharp contrast to the 2014 Avon FCPA enforcement action, which had many similar fact patterns, but no individuals were charged. That said, it remains to be seen whether this broad agency theory will survive after Judge Arterton dismissed FCPA charges based on agency against Alstom’s Lawrence Hoskins in February 2020.

An article by Noah Feldman: There’s more than meets the eye in today’s Supreme Court decision striking down a 2015 law that allows some robocalls to your mobile phone — namely, calls seeking to collect government debts. On the surface, the court straightforwardly said that if Congress bans robocalls across the board (as it did in the 1990s) it violates the First Amendment to make an exception for calls with certain content (as it did in 2015). Sensibly, the court didn’t re-allow all robocalls; it just eliminated the more recent debt collection exception. But underneath, the justices were engaged in an important, ongoing debate about how the First Amendment applies to government regulation. The court’s conservatives deepened their commitment to a rigid, formalistic view of free speech that says the government may never treat speech differently on the basis of its content. That doctrine could be used to attack the many forms of government regulation that arguably do exactly that — for example, by saying what information must or must not appear on a drug warning label. The court’s liberals responded by pointing out the looming threat to progressive regulation that may come from the conservatives’ attachment to the ban on content-based laws. Justice Stephen Breyer, in his partial dissent, made it clear that he views the conservatives as gathering their forces to stage a free-speech assault on the administrative state. The general ban on robocalls to your mobile device goes back to 1991.

Many people with underlying medical conditions are worried about what's going to happen at the end of the month. It's not currently safe for many of them to go back to work. The COVID-19 death rate is 12 times higher for people with underlying conditions. But an extra $600 a week in federal unemployment benefits, which has been enabling them to pay their rent and other bills, will stop coming at the end of July...Democrats in Congress want to extend those expanded benefits. But Republicans have expressed concern that the extra money is keeping some people from going back to work in lower paying jobs. Meanwhile, the clock is ticking. "It's absolutely critical that it's figured out before this expires in July," says Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School and a former senior Labor Department official. She says the need is particularly urgent "when you consider that we are in an expanding pandemic and not an ebbing one." Block says the added federal benefits are needed for unemployed workers in general — but especially for those with serious underlying health conditions...Beyond the unemployment issue, for these people at higher risk, the conditions their family members are working in can pose a threat, too. Alan is a manager at a real estate company in Alabama. He doesn't want his last name used because he fears repercussions at work. His wife has lupus, an autoimmune disease, and he says she takes medicine that suppresses her immune system...But Alan says he didn't feel comfortable pushing the issue too hard with his employer because he's afraid of losing his job in the pandemic and he has to support his family. Block says a lot of people are in that same situation. "They're very, very vulnerable to retaliation for speaking out when it's this kind of labor market," she says.

When pain radiated from Fred Thomas' neck down his arm and he couldn't feel his fingers anymore, he knew it was time to talk to a doctor. After getting an MRI ordered by his primary-care doctor, the 49-year-old land surveyor had several phone conversations with a Rothman Orthopedic Institute specialist he'd never met to discuss the problem and treatment options. He was scheduled for a cervical fusion to replace three damaged disks in his spine a couple weeks later...Months ago, few patients or doctors would have considered surgery without so much as an in-person consultation, but the coronavirus pandemic has forced the health-care system to embrace telemedicine like never before. With no other way to see a doctor as the virus shuttered all but the most essential health-care services, regulatory hurdles that hamstrung the growth of telemedicine for decades were wiped away: Private insurers, Medicare and Medicaid agreed to pay the same rates for telemedicine visits they would have for in-person appointments. The federal government loosened privacy regulations that had in the past restricted how patients and doctors communicate virtually...But the changes that made its widespread adoption possible were intended to be temporary. A permanent change will require more work. "It was a sensible thing in a pandemic to say just 'make it happen.' But it's not sensible to say 'there are no rules,'" said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.