Media Mentions

Disha Verma '21 was set to start her third year at Harvard Law School in the fall. She’s hoping to become an immigration lawyer, a specialty where she feels a personal stake. A native of New Delhi, India, she is one of more than 1 million foreigners studying on an F-1 visa in the U.S. This week she learned she may be subject to deportation since Harvard Law is offering only online classes in the coming term. On Monday the U.S. Immigration and Customs Enforcement (ICE) announced a policy requiring foreign students to leave the country if they are enrolled in online-only classes in the fall. “I think it’s scary and highly disturbing to feel that a place that I have considered home for so many years now can just shut its doors on me,” she says. She doesn’t yet know whether India will allow her to return, given the high infection rates in the U.S. If she does make it to New Delhi, the nine-and-a-half-hour time difference will make it tough to take online classes. She would also have to break her year-long lease in Cambridge...Verma, who earned her B.A. at Harvard before starting law school there, feels profoundly disillusioned by the new ICE policy. “Back in India, people very much still believe that you can come to the U.S. and you can have a great life here,” she says. “I was lucky enough—I got into Harvard and I had the most wonderful experience here. After all of that, it just feels as though someone pulled the rug out from under my feet.”

An article by Rachel Bercovitz and Todd Carney '21: Ruling in Trump v. Mazars on July 9, the Supreme Court held that courts must take into account separation of powers concerns in resolving disputes over congressional subpoenas seeking personal information of the president. The court found that the split panels at the U.S. Courts of Appeals for the D.C. Circuit and the Second Circuit had failed to adequately account for “weighty” separation of powers considerations when rejecting challenges to House committee subpoenas seeking financial records relating to President Trump, his affiliated business entities and his family members. In a 7-2 decision authored by Chief Justice John Roberts, the Supreme Court vacated the judgments below and remanded to the district courts for further proceedings. (The court also ruled in a related but distinct case concerning Trump’s efforts to block subpoenas for his financial records from New York state law enforcement; a summary of that decision, Trump v. Vance, is available here.) The court defined the question presented as a matter of first impression, stating it had “never addressed a congressional subpoena for the President’s information.” Such subpoenas, the court found, “unavoidably pit the political branches against one another.” This is so even when, as in these cases, subpoenas implicate the president in his personal, not official, capacity, or are issued to third parties. While the court affirmed that it is the “‘duty of all citizens to cooperate’” with congressional information requests, the majority found that courts presiding over subpoenas seeking information from the president must account for the “special” separation of powers issues these disputes raise.

The Supreme Court under Chief Justice John Roberts in the term that ended Thursday demonstrated a willingness to buck conservative expectations and a preference for shifting the law by increments rather than sweeping pronouncements. The institutional independence of the Roberts-led court struck notes of stability and caution against a landscape of hyper-partisanship, and tempered conservative notions that President Trump’s nominations had created a fortress on the court...The conservative-majority court delivered wins and losses to both liberals and conservatives alike, though largely without issuing maximalist rulings in either direction. Court watchers attributed this to Roberts’s stewardship...What was perhaps more remarkable than Roberts’s vote in the cases was the decision by Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh, to join Roberts and the court’s liberal wing to form a 7-2 majority and validate a grand jury subpoena for Trump’s tax returns. Roberts was likely heartened that his fellow conservatives' votes allowed the court to avoid issuing the landmark rulings along ideological lines, which would have given the impression of an unduly politicized outcome. But the votes by Gorsuch and Kavanaugh were also likely to deepen the president’s sense of defeat, as the justices’ hard-won confirmation battles raised expectations that a solid right-wing majority would control the court for the foreseeable future...While conservatives did notch clear victories in the realm of religion and the administrative state, many analysts believe Roberts' restrained approach was the reason they did not claim more wins or achieve a more wide-reaching impact. “Obviously, there was some degree of tempering conservatism in outcomes,” said Mark Tushnet, a professor at Harvard Law School.

In May, the North American Scrabble Players Association made a big announcement. Scopely Inc. had agreed to add the official tournament lexicon to its hot new app, Scrabble Go...Within a month, though—and in the wake of the killing of George Floyd and the Black Lives Matter protests around the country—executives at NASPA, supported by some of its membership, were fighting to permanently remove from tournament Scrabble some of the very words they had just fought to gain access to. And this week, Scrabble’s owner, the toy and game giant Hasbro Inc., announced that NASPA would delete “all slurs” from its word list and that the company would rewrite the rules “to make clear that slurs are not permissible in any form of the game.” ...I asked Harvard Law School professor Randall Kennedy about the Scrabble debate...He told me it’s understandably reasonable to be concerned that any deployment of a slur gives the word legitimation. He also said it’s healthy to question the use of words in the current climate around social justice—but not at the expense of other values. “My view is that the context in which a word is used always conditions the meaning of the word,” Kennedy told me. “If you were using a term in a setting in which it’s clear that there is no message being sent, and in fact is an agglomeration, a series of symbols—a, b, c, d, e, and the rest—I don’t see what the problem is. If the word is being used in a way that is demeaning, if the word is being used in a way that is putting down people, I’m against that. But if the word is being used in some other fashion, then that should be recognized and understood.” In his book, Kennedy argues against “eradicationists” who want the N-word to be expunged from the language. Doing so, he told me, would diminish James Baldwin, Mark Twain, “Letter From a Birmingham Jail,” Richard Pryor, Eudora Welty, and more. “I would rather more speech than less. I would rather knowledge than erasure,” he said. “I think there’s going to be a tremendous loss in this campaign of bowdlerization, this campaign of euphemism by dint of punishment if you don’t go along with it.”

The Supreme Court closed a pivotal annual term last week bearing the unmistakable imprint of Chief Justice John Roberts, who embraced the role of institutionalist as he sought to keep the court above nation’s intense partisanship during a time of national upheaval. Over the course of 55 cases decided this year—involving such politically sensitive issues as access to President Trump’s financial documents, gay rights, workplace discrimination and religious exemptions from providing contraceptive coverage—the chief justice was in the majority in all but two decisions...Taken together, the court’s output reflected the overarching message Chief Justice Roberts has sought to deliver since taking the helm in 2005: The judiciary stands apart from the partisanship that consumes its coequal branches of government, Congress and the presidency. “He believes very strongly that people should not look at the court and see Republicans and Democrats, that they not see judges as mere partisans,” said Harvard law professor Richard Lazarus, a longtime friend of the chief justice. “It’s an uphill battle, both against the outside forces, and sometimes within the court itself.” Mr. Lazarus says that goal plays a part in the votes the chief justice casts. In 2016, for instance, he dissented from a 5-4 decision invalidating a Texas law imposing burdensome requirements on abortion providers. But last month, he cast the deciding vote to strike down a similar Louisiana measure, writing that he felt bound to follow the precedent despite his disagreement...When possible, Chief Justice Roberts “doesn’t want 5-to-4. He wants to see 6-to-3 or 7-to-2,” said Mr. Lazarus, whose own recent book on the court is titled “The Rule of Five.”

On the evening of 13 July 2013, a few hours after George Zimmerman was acquitted over the fatal shooting of 17-year-old Trayvon Martin, Alicia Garza logged on to her Facebook account and typed a phrase that would change the world: “#blacklivesmatter”. A few minutes later, she posted again: “Black people. I love you. I love us. Our lives matter.” That Facebook played a small role in the inception of a movement that may have become the largest in US history is the kind of story that the embattled company likes to point to when it makes its case that it does more good than harm. CEO Mark Zuckerberg boasted of the hashtag’s origin on Facebook in October 2019, when he delivered a speech about his view of free expression at Georgetown University. But however much credit Facebook thinks it deserves, the days of utopian thinking about the social media platform’s ability to foster positive social change are gone...Whether Facebook will ever hit upon a more coherent approach to protecting the free expression of the powerless as well as the powerful depends on whether it ever comes to grip with its own role as the largest censor in the history of the world. “Facebook is governing human expression more than any government does or ever has,” said Susan Benesch, a faculty associate at Harvard University’s Berkman Klein Center for Internet and Society. “They have taken on the task of defining hate speech and other unacceptable speech, which is a quasi-sovereign power … and we the public have no opportunity to contribute to the decision-making, as would be the case if the decisions were being made by a government.”

“Dump potatoes in the rivers … Slaughter the pigs and bury them, and let the putrescence drip down into the earth,” John Steinbeck wrote in “The Grapes of Wrath.” “There is a failure here that topples all our success.” Steinbeck’s lament against food waste is eerily relevant today, as supply-chain disruptions from the coronavirus pandemic have continued to force farmers to euthanize hogs they can’t sell and bury excess potatoes. Even before Covid-19, Americans, on average, were tossing away more than a pound of uneaten food per person each day, amounting to some 400 pounds of food thrown out annually. That’s far more than any other wealthy country — about 50% more food waste per capita than France and nearly double that of the U.K. According to U.S. government estimates, the cost of U.S. food waste comes out to $161 billion annually. The environmental costs are abysmal. So the problem of food waste is certainly not new...Lawmakers also need to clear up confusion around expiration dates on perishable foods, which vary wildly from state to state. “Date label confusion wastes massive amounts of food,” said Emily Broad Leib, who directs the Food Law and Policy Clinic at Harvard Law School. “Supermarkets lose about $1 billion a year from food that expires in theory — but not in reality — before it’s sold.” There is currently a bill pending in the House (H.R.3981) that would clear up such confusion and cut down on waste. Introduced by Maine Democrat Chellie Pingree and Washington Republican Dan Newhouse in 2019, it would standardize dozens of different date-labeling laws and give consumers a clearer understanding of how long their fresh foods are safe to eat. According to Leib, the act has been shelved during the pandemic, because standardizing data is time consuming and the benefits would not be realized immediately. But lawmakers have to be thinking about both near- and long-term solutions. Congress would be wise to put this bill back on the agenda and pass it sooner rather than later.

An article by Noah Feldman: In a fitting coda to the blockbuster Supreme Court term that ended yesterday, the court decided a major American Indian law case, one that matters for our historical moment of considering systemic racism and the question of reparations. In a 5-4 decision, Justice Neil Gorsuch and the court’s four liberals held that much of the eastern part of the state of Oklahoma remains, legally speaking, a Creek reservation, pursuant to treaties made between the United States and the Creek Nation in the 19th century. In practice, this means primarily that American Indians charged with crimes committed in this area will have to be prosecuted in federal or tribal courts, rather than Oklahoma courts. Some existing criminal convictions may have to be overturned, and some prisoners may be able to get off death row. The symbolic significance of the decision, however, goes much further. In his opinion, Gorsuch made a point of emphasizing that government of the United States must keep the promises it has made — and too often broken — to indigenous tribes throughout its history. His opinion began with the sentence, “at the end of the Trail of Tears was a promise,” the promise of reservation land for the Creek Nation. Although it is “clear that Congress has since broken more than a few of his promises to the tribe,” he wrote, nonetheless the promise of the reservation remained in place. Thus, Gorsuch concluded, “We hold the government to its word.” If this attitude of acknowledging broken promises and fulfilling them were to be adopted by the courts, not to mention by the American public, it would go a long way toward repairing the nearly unimaginable wrongs done to the first peoples of the North American continent over the centuries.

Harvard Law School’s dean has signed on to a letter urging Massachusetts’ high court to grant graduates so-called diploma privilege, which would allow them to become licensed quickly and without taking the bar exam because of the coronavirus pandemic. The Massachusetts Supreme Judicial Court has already canceled the state’s in-person July bar exam over health concerns, instead saying it will offer an online test this fall. But Harvard Law Dean John Manning and other law school leaders said in a Wednesday letter that the online test option may not be fair to all applicants. Many, especially applicants of color, have faced increased family, economic and health hardships because of the pandemic, the deans said.

Donald Trump has smashed a lot of environmental china in four years. To name a few instances: he pulled out of the 2015 Paris Agreement (a move that becomes official on July 6, 2021); loosened automotive-mileage and power-plant-emission standards; and sought to eliminate the protected status of the sage grouse, opening up 9 million acres to oil and gas extraction. Reasonable minds may differ on the wisdom of any one of those moves, but no one can deny the unprecedented sweep of Trump’s policies. Data from Harvard Law School’s Environmental and Energy Law Program and Columbia University’s Sabin Center for Climate Change Law show that the President has signed more than 100 administrative rules, Executive Orders and acts of deregulation, 66 of which have gone into effect...It wouldn’t necessarily be easy. The U.S. would not simply be permitted to rejoin the agreement but would have to negotiate its way back in. One way to improve its chances would be for the U.S. to present an even more ambitious greenhouse-gas reduction target than it had before, says Joseph Goffman, the Harvard program’s executive director. That original target for the U.S. was a cut of 26% to 28% below 2005-level carbon emissions by 2025. If Biden agreed to more, he might win the U.S. the favor of the other 196 signatories to the pact, but then he would have to deliver; that’s where the work on the domestic side would begin...If presumptive Democratic presidential nominee Joe Biden defeats Trump in November, what could he do in his own four years to undo the work of the Trump era? “The biggest, flashiest thing would be for Biden to stand up on day one and say the U.S. is recommitting itself to Paris,” says Jody Freeman, director of the Harvard program. “We should make clear we’re going to take back the reins we’ve relinquished.”

Two United States Supreme Court decisions delivered on Thursday a legal path for the eventual release of President Donald Trump's financial records. Whether the information, which could be damaging for the president, will come out before November's presidential election is unclear, lawyers and politicians said. "These two opinions are very dark clouds for the president," said Gene Rossi, a former federal prosecutor now in private practice in Washington, DC. "The opinions reject the argument that he has this global immunity from prosecution or service of process," Rossi told Al Jazeera. In a pair of 7-2 decisions, the Supreme Court ruled that a New York state grand jury could get Trump's financial records and sent back to a lower court enforcement of a subpoena by Congress. Manhattan District Attorney Cyrus Vance Jr, and a House of Representatives committee had subpoenaed Trump's accounting firm Mazars USA LLP for 10 years of his financial records. Trump claimed his position as president gave him broad protection of "absolute immunity" from investigation by Congress and the New York prosecutors...Those legal arguments, however, are not strong, said lawyers who have been critical of the president's legal claims. "The idea that he can simply assert that this is harassment, that it's politically motivated in the absence of any proof whatsoever is not going to help him very much," said Laurence Tribe, a constitutional scholar at Harvard Law School. "The president and his people are grasping at straws to find anything they can to indicate this was not as thorough a rout as it was," Tribe told Al Jazeera. Trump's claims will not gain him "leverage" in the lower courts, he said.

Our justice system is flawed and inequitable, says Harvard law professor Martha Minow. She calls for a reset to emphasize accountability, apology, and service, rather than punitive punishment. Martha Minow is a professor at Harvard Law School, where she has been teaching since 1981. Previously, she served as the Dean of the Law School between 2009 and 2017. She is an expert in human rights and advocacy for members of racial and religious minorities, women, children, and persons with disabilities. She also writes and teaches about privatization, military justice, and ethnic and religious conflict. Minow is the author of several books. Her most recent title is When Should Law Forgive? Minow received her undergraduate degree from the University of Michigan, her master's degree in education from the Harvard Graduate School of Education, and her JD from Yale Law School.

An article by Ashley Nunes: In the heart of Australian outback lies Alice Springs. The town – colloquially known as Alice – is the site of indigenous human presence dating back nearly 30,000 years. More recently, however, a new (and admittedly very different) type of settler has descended upon Alice. Since April, four Airbus A380s have made their way to the small town. The 500-plus-tonne behemoths belong to Singapore Airlines which, like many other carriers, has grounded almost its entire fleet. The reason is Covid-19. The spread of the novel coronavirus has caused passenger demand to collapse, forcing airlines to park, rather than fly, their planes. Alice offers conditions ideal to do just that. The local airport has a runway long enough to land commercial airplanes and the climate is dry, which means aircraft parts corrode far slower than in the sweltering heat and humidity of South East Asia. Slumps in travel demand aren’t new. Following the terrorist attacks of 11 September 2001, passenger enthusiasm towards flying also waned amid security fears. This forced airlines – then, like now – to cancel flights and puts planes into storage. The industry did recover. Passenger numbers for 2002 were 1.63 billion, only slightly lower than the 1.66 billion who flew in 2001. But passenger numbers don’t tell the whole story. The 9/11 attacks also forced airlines to trim costs through furloughs, layoffs, and most notably, consolidation. Prior to the attacks, the US airline market – the world’s most lucrative – was largely controlled by eight carriers. Today, its four. Following the attacks, airlines also became more cautious and shelved plans for aggressive expansion. This led to fewer flights overall and for passengers, less space as planes got fuller. Whether Covid-19 has a similar impact on the industry and how passengers fare in the aftermath will depend on a few things.

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.