Media Mentions

An article by Noah Feldman: It’s big news that an El Al flight carrying Israeli officials, Jared Kushner, and his negotiating team flew from Tel Aviv to Abu Dhabi in three hours and forty minutes. The reason it didn’t take seven hours is that Saudi Arabia allowed the Israeli flight to go through its airspace- the first time that has ever happened. On its own, the overflight is a signal that the Saudi kingdom is prepared to give some more-than-passive validation to the Israel-united Arab Emirates peace deal that is close to being inked. On a deeper level, the subtle Saudi signal raises two all-important questions about the peace deal: Will other Arab states sign on? And will the Gulf states’ willingness to consider peace with Israel without movement toward an Israel-Palestine peace agreement lead to changes in the Palestinian strategy for trying to get a functioning state? To be clear, the Israel-UAE deal is a meaningful foreign policy achievement even if no other Arab state follows the lead of the Gulf confederation. This is the first peace deal between Israel and any Arab state in a diplomatic generation. Achieving it took skill and persistence, especially against the backdrop of the constant drumbeat of criticism that Kushner’s initiative in the region would never bear fruit. Yet it is also true that the UAE is uniquely positioned to make a deal with Israel. Roughly 10 million people live spread out across the seven members of the confederated monarchy, and of these perhaps as few 1.4 million are citizens. That means that Emirati citizens aren’t a cohesive popular force capable of exerting significant influence on the rulership. Put more simply, the rulers can do pretty much what they want regarding Israel without worrying about it making them too unpopular. The conditions in other Arab states, even Saudi Arabia, require rulers to be more attuned to public opinion, which tends to favor the Palestinian cause.

A podcast by Noah Feldman: Dr. Walid Gellad, the Director of the Center for Pharmaceutical Policy and Prescribing at the University of Pittsburgh, discusses a misleading statement from the FDA about convalescent plasma as a treatment for COVID-19. Plus, he lays out a worrisome vaccine announcement scenario.

In response to reports of tule elk dying amid an ongoing drought, the Center for Biological Diversity and Harvard Animal Law and Policy Clinic on Monday demanded that the National Park Service remove a fence from Tomales Point in northern Point Reyes National Seashore that confines elk on a peninsula with inadequate water...Tomales Point elk are prevented from naturally migrating to reliable water sources by an eight-foot fence erected and maintained by the Park Service to benefit cattle ranchers with grazing leases in the park. Cattle directly south of the fence have access to plentiful water sources, including naturally flowing streams. Tule elk in the fenced Tomales Point Elk Reserve depend largely on water in former cattle stock ponds to survive the dry summer and fall seasons. All but one of these ponds are dry or nearly dry. Conditions are similar to 2012-2014, when more than 250 elk — nearly half of the Tomales Point elk population — died from a lack of water. It appears that at least six elk have recently died on Tomales Point, with the causes of death not yet disclosed. While the Park Service posted a recent update stating that water is still available for elk in two seeps and springs on the peninsula, in a creek at McClures Beach and in a large pond, conservationists on Monday called for more information on whether adequate water exists to maintain the fenced elk throughout the remainder of the dry season. The National Park Service Act and the California Tule Elk Preservation Act require the Park Service to conserve, protect and maintain the elk in the national park. The Park Service is close to finalizing a ranch-management plan that, at the request of ranchers, would allow the agency to regularly kill a portion of the free-roaming Drakes Beach elk herd to limit their population growth.

When Scott Westfahl was a boy, he watched as his father climbed the ranks of the U.S. Navy. Every few years he’d get a new stripe, denoting a new level of leadership and responsibility. Each time, he was put through rigorous training to prepare him for his new role and give him the skills to succeed. By the time Westfahl’s father was ready to captain his own submarine, the Navy put him through prospective commanding officer school, an intense six-month stretch that taught him about tactics and operations, understanding and guiding strategy and, perhaps most important, how to lead. Years later, after the younger Westfahl graduated law school and took a job at Foley + Lardner, he moved through a series of leadership roles himself. But the only training he received was substantive. What he learned about leadership, he learned by doing. “There was no organized thought about it at all,” he says. “And that really hasn’t changed much.” It wasn’t until Westfahl left the law to work in professional development at McKinsey + Co. that he realized the legal industry set itself apart from not just the military and consultancies but most of the professional world by failing to devote significant resources to leadership training and development. Now, as the director of executive education at Harvard Law School, he’s working, one cohort of lawyers at a time, to change that. “In the law firm world, the word leadership just isn’t used except at the top levels,” Westfahl says. Instead, industry consultants and observers say, many firms pay scant attention to developing leaders throughout their organizations, keeping a tight focus on the daily pressures of operating what for many is a billion-dollar business. In many cases, a lawyer might receive only fleeting opportunities to think or learn about leadership until the moment they assume a role that demands exactly the experience that has thus far eluded them.

This simple and important question does not get anywhere near the attention it deserves. And, just to be clear, I don’t mean are they worth $20 million in any moral sense. I am asking a simple economics question; does the typical CEO of a major company add $20 million of value to the company that employs them or could they hire someone at, say one-tenth of this price ($2 million a year) who would do just as much for the company’s bottom line? This matters not only because a thousand or so top executives of major corporations might be grossly overpaid. The excessive pay of CEOs has a huge impact on pay structures throughout the economy. If the CEO is getting $20 million it is likely the chief financial officer (CFO) and other top tier executives are getting in the neighborhood of $8-12 million. The third echelon may then be getting paid in the neighborhood of $2 million. And these pay structures carry over into other sectors...If we want to raise pay for the bottom in a big way, we have to drive down pay at the top. This would be a problem if we actually had to pay the CEOs $20 million to get them to perform well, from the standpoint of producing profits for the company or returns to shareholders, but the evidence is that we don’t. The best place to start on the evidence is the great book by Lucian Bebchuk and Jesse Fried, Pay Without Performance...It compiles much of the literature available at the time on the relationship of CEO pay to returns to shareholders. It includes many studies that show CEOs pay often bear little resemblance to what they do for shareholders. For example, the pay of oil executives skyrockets when the world price of oil rises, an event for which they presumably are not responsible. Another study found that CEOs tend to get big pay increases when they appear on the cover of a major business magazine, even though returns to shareholders generally lag the overall market.

The U.S. ambassador and lifelong civil rights activist passed away on August 11, 2020. He was one of only four Black students in his class at HLS. His work in Africa became his most enduring legacy – notably as ambassador to Senegal at the end of President Carter’s administration and, more dramatically, as President Clinton’s ambassador to Nigeria.

Sumner M. Redstone '47, the billionaire entrepreneur who saw business as combat and his advancing years as no obstacle in building a media empire that encompassed CBS and Viacom, died at age 97.

When can the law be used as a tool for reconciliation and repair instead of punishment? That’s the central question of Harvard Law Professor Martha Minow’s “When Should Law Forgive?” which explores how entities and communities in the United States and abroad utilize truth commissions, reparations, and debt forgiveness—alternatives that fall under the mantle of what’s known as restorative justice—to address wrongs and create a better future. The idea of forgiveness and reconciliation as an alternative to vengeance is hardly new, but the recent focus on racial injustice and the school-to-prison pipeline is breathing new life into the restorative justice movement. We recently caught up with Minow to find out more about restorative justice and the inroads it is making...You have been writing about law and forgiveness for more than a decade. How did you get interested in the topic? "I started from a different direction. I wrote a book published in 1998 on legal responses to mass atrocities and called it, 'Between Vengeance and Forgiveness,' because I came to see prosecutions, truth commissions and reparations as efforts to use law and other social instruments to help society steer a path between vengeance—which seemed to me terrible—and forgiveness—which seems to me beyond the capacity of most human beings, including me. As I worked on that, there were many interesting reactions. I kept hearing over and over again, 'We need a truth and reconciliation commission in our school or community.' That really led me to think more about it. And I had many people say, 'Why can’t law itself forgive?' It was the result of being in conversations with a lot of people."

Luis, the 23-year-old leader of a squadron of 50 bikers, cruised through the streets of the Bolivian city Cochabamba on a recent morning. Armed with coshes and shields, their faces covered by bandanas and ski masks, they were looking for marches, roadblocks, and anything else that might spell trouble. His squadron is part of the Cochabamba Youth Resistance (known as RJC, its Spanish initials). Luis, who asked VICE News not to use his real name, says their purpose is to “defend the city, defend democracy, and not allow any abusers to seize power.” It all started for Luis when he blocked the street outside his house with his family and neighbours toward the end of 2019. They were protesting against the left-wing government of former President Evo Morales after accusations that he had committed fraud in the general election last October...They say they’re defending democracy. But activists and human rights organizations say these collectives have a disturbing track record of racism, sexism and violence, as well as a close relationship with security forces. They are operating as organized vigilante groups, using violence and intimidation to silence critics — and are being actively encouraged by Bolivia’s interim government, according to human rights lawyers at Harvard Law School’s International Human Rights Clinic. “People are scared to vote, scared to express their opinions,” said Thomas Becker, one of the authors of the International Human Rights Clinic’s report. “If they express opposition, they’re afraid they’ll be dragged through the streets.” He added that there was “real concern” that the upcoming elections scheduled for October 18 wouldn’t be free or fair...“They’re relying on racist tropes that we’ve seen before,” said Becker. “It’s this notion that indigenous people are savage or uneducated that fuels a lot of these attacks.” Many observers are especially concerned about attacks against indigenous women, who in some cases have been physically attacked by motorbike gangs while they were just walking down the street. “They’re like a hyper-racist, hyper-armed version of the Proud Boys,” Becker said, in reference to the American right-wing group with a penchant for street fighting.

Mark Ramseyer, a professor at Harvard Law School, discusses the fight against extradition to Japan of two American men who are wanted there on charges that they smuggled former Nissan Motor Co. Chairman Carlos Ghosn out of the country in a box last year in his daring escape. Bloomberg's David McLaughlin discusses the decision by Teva Pharmaceutical Industries Ltd. to fight charges by the U.S. of conspiring with competitors to raise prices for generic drugs. June Grasso hosts.

As darkness fell and a thick Pacific fog crept in over the Point Reyes peninsula on Sunday, a small band of animal activists waited for a National Park Service official to leave his check-post along Pierce Point Road. He was there to prevent people from going deep into the National Seashore, where forests are aflame, and a skeleton crew of park service employees are otherwise tending to a 3,000-acre conflagration burning at the park’s southern end. At 6 p.m., as his shift came to a close and he drove away, the small bucket-brigade crept in. They were transporting roughly 200 gallons of water to the park’s tule elk, who they say are dying from dehydration — and unable to reach other water sources because of a fence around their preserve — as drought conditions worsen in the region...Up until this week, Dawes’ organization and other local activists were the main ones focused on the plight of this year’s elk herd. But on Monday, a group with a track record of aggressive environmental litigation, the Center for Biological Diversity, urged the park service to provide water to the elk and remove an eight-foot high wire fence that runs across the peninsula, preventing the free movement of the elk. “Unlike the privately owned cattle that have unrestrained access to water sources in this area, the elk are protected by federal law that requires the Park Service to ‘conserve’ them for the public and future generations,” said Katherine Meyer, director of Harvard Law School’s Animal Law and Policy Clinic in a statement for the organization. “They should not be denied access to the water they need to survive.”

In response to reports of tule elk dying amid an ongoing drought, the Center for Biological Diversity and Harvard Animal Law and Policy Clinic today demanded that the National Park Service remove a fence from Tomales Point in northern Point Reyes National Seashore that confines elk on a peninsula with inadequate water. “Point Reyes is a national park, not a zoo. The park’s native wildlife shouldn’t be confined or prevented from finding water and food,” said Jeff Miller, a senior conservation advocate at the Center for Biological Diversity. “The Park Service should tear down the Tomales Point fence so that all elk in Point Reyes National Seashore are able to thrive and find adequate water during a drought.” Tomales Point elk are prevented from naturally migrating to reliable water sources by an eight-foot fence erected and maintained by the Park Service to appease cattle ranchers with grazing leases in the park. Cattle directly south of the fence have access to plentiful water sources, including naturally flowing streams. “Unlike the privately owned cattle that have unrestrained access to water sources in this area, the elk are protected by federal law that requires the Park Service to ‘conserve’ them for the public and future generations,” said Katherine Meyer, director of Harvard Law School’s Animal Law and Policy Clinic. “They should not be denied access to the water they need to survive.” Tule elk in the fenced Tomales Point Elk Reserve depend largely on water in former cattle stock ponds to survive the dry summer and fall seasons. All but one of these ponds are dry or nearly dry. Conditions are similar to 2012-2014, when more than 250 elk — nearly half of the Tomales Point elk population — died from a lack of water. It appears that at least six elk have recently died on Tomales Point, with the causes of death not yet disclosed.

An article by Noah Feldman: It’s too soon to say with any confidence that Joe Biden will be the next president of United States. But it’s not too soon to start determining what he needs to do on day one if he is elected. Once you get beyond addressing the coronavirus pandemic, it’s pretty clear that the highest priority Biden should have is reversing the disastrous direction that the Department of Justice has taken under President Donald Trump. To regain its credibility, the department needs leaders who will publicly and systematically demonstrate that they are committed to restoring the values, norms and practices established in the nearly half-century since Watergate. The near-total failure of the Justice Department to engage the pressing concerns raised by the Black Lives Matter protesters is only the most recent and dramatic manifestation of how rudderless the once-great department has become. Looking at the violent clashes between federal agents and protesters this summer, you would hardly know that the Department of Justice once worked to desegregate schools and prosecute civil rights violations in the South. Trump’s Department of Justice has taken its cues from a president who ran for office by directing the “lock her up” chant at his opponent. It has increasingly undermined the all-important principle that enforcement, investigation and prosecution should be removed from partisan politics. Trump’s project of delegitimizing the department through politicking goes back to his extended efforts to paint the Russia investigation as politically motivated. His goal was to convince ordinary people that the FBI and DoJ were already completely partisan, in order to undercut any evidence implicating him or his campaign. Hence Trump’s pressure on Attorney General Bill Barr to break Department of Justice norms and reveal the progress of his investigation of the Russia investigation. The very existence of this investigation is a terrible sign of how Trump has successfully turned the initial investigation of Russian interference in the 2016 election into a political football.

An article by Cass Sunstein: Suppose that on Nov. 3, and for weeks thereafter, no one knows whether Donald Trump or Joe Biden has won the presidential election. To be more specific, suppose that as of Nov. 4, Trump is unquestionably ahead in the key states — say, Michigan, Wisconsin and Pennsylvania. But suppose, too, that as those states count absentee and mail-in ballots, it becomes clear that Biden has won. Predictably, Trump alleges fraud — and tweets that his supporters, and the country as a whole, should not allow “THE GREATEST FRAUD IN HISTORY.” Everything will ultimately turn on the vote of the Electoral College, scheduled for Dec. 14, and on what happens on Jan. 6, when Congress meets to declare the winner. But if we have a fierce dispute in late November and early December, how on earth do we get to a final decision in early January? The Electoral Count Act of 1887 was designed to answer that question. In my first column on this issue, I described what the ECA requires in the event of contested elections, and explained what the law is clear about. By giving the major authority to the states, and by outlining, step by step, what is supposed to happen, it sharply limits room for political maneuvering in Washington. Unfortunately, the act also leaves some important questions unresolved. A leading political scientist of the late 19th century even described it as “very confused, almost unintelligible.” That’s too harsh. But exactly how would the law handle an objection, by Trump and his campaign, that the election was “rigged” and that mail-in voting resulted in rampant fraud? The first question, and the most fundamental, is whether the act is constitutional. Many people think that it isn’t, and the Supreme Court has never ruled one way or another.

China appears to have complicated efforts to sell TikTok to an American company by introducing new rules that could allow Beijing to veto any potential deal. The twist in the TikTok saga stems from notices published by the Chinese government on Friday, when officials revised rules that govern the sale of certain kinds of technology to foreign buyers. The updated list includes data processing, speech and text recognition — the kind of tech that experts say is used by the popular short-form video app. The announcement marked the first time those rules have been revised since 2008. China's Ministry of Commerce and Ministry of Science and Technology said the changes were meant to "formalize the management of technology export" and "protect national security." The notices did not name TikTok or its Beijing-based owner ByteDance, but experts have pointed out that the rule change would likely require ByteDance to obtain government permission before it could sell TikTok to a foreign company...China has repeatedly pushed back against the Trump administration's treatment of TikTok, calling it "blatant bullying" in the name of national security. The latest move could be posturing by Beijing, said Elena Chachko, lecturer on law at Harvard Law School, who added that the government may be engaging in "a tit-for-tat dynamic." But China is also "making clear that the United States doesn't have full control over the future of US TikTok operations and a potential TikTok sale," she added.

From the untouched far-reaches of the Arctic National Wildlife Refuge to the sprawling old growth stands of the Tongass National Forest, the Trump administration has taken a shot-gun blast approach to pushing through extraction projects on federal lands in Alaska. There are no fewer than six major projects in the inital stages on federal lands in the state—operations that indigenous groups say would dramatically alter their longstanding way of life, and that environmental groups say would have a devastating impact on the environment...The Trump administration plans to hold the first-ever lease sale on the coastal plain of the refuge before the year's end, according to Interior Secretary David Bernhardt. Earlier this month, the Interior Department completed the last regulatory hurdle—the publication of a "record of decision"—and now a lease sale can be held. The plan is to make available the entire coastal plain, 1.6 million acres along Alaska's north-eastern coast that are a home to the Porcupine caribou herd and a denning location for polar bears. The area is considered sacred to the native Gwich'in people...But because opening the refuge was included in the 2017 tax bill, Congress must also be involved in undoing it. "Without Congress's help, I think there's less flexibility for a Biden administration to stop the project," said Laura Bloomer, a fellow at Harvard's Environmental and Energy Law Program, who has been tracking regulatory rollbacks. "But there's enormous flexibility for a Biden administration to change how they do it," she added, noting that they could apply more environmentally rigorous standards that might make drilling there even less appealing. (Industry experts say it remains to be seen just how appealing it will be, given the price of oil, and the technical challenges of drilling there).

As protests for racial justice take to the streets, we remember one of the most important civil rights lawyers of the mid-20th century: Loren Miller. Miller worked on landmark U.S. Supreme Court cases, like Shelley v. Kraemer, which resulted in racially restrictive housing covenants being ruled unconstitutional, and Brown v. Board of Education, which ended legal segregation in public schools. He was also an influential writer and activist. Host Giovana Romano Sanchez interviews writer and researcher Dr. Amina Hassan and Harvard professor Kenneth Mack about Miller’s life, work, and significance in today’s racial politics.

Agile management began as a work of passion and as a desire to set things right. It continues excite passion in its advocates and its critics. My article “What Good Agile Looks Like” has generated many excellent questions and suggestions. Perhaps the most unintentionally illuminating came from my long-time colleague, Dave Snowden, who wrote: “Utopia on the left, dystopia on the right and little or no truth in either - why do people do this?” ...Agile management as presented here is not utopian in the sense of “an impractically ideal social and political scheme.” It is the reality in many organizations around the world, including the most financially valuable firms on the planet. It only sounds unrealistic if you have suffered under constraints of bureaucracy for your whole working life and never learned that other ways of working are possible. But for those who have experienced Agile management, or who have observed it first hand, Agile management often unfits you for working in any other way. When workers have a clear line of sight to those for whom the work is being done, work becomes meaningful in a way that isn’t possible in a bureaucracy...Principles reflect the underlying assumptions that drive decision-making throughout an organization. Principles reflect what the firm is actually doing, not necessarily with what the management says it is doing. For instance, important research by Harvard Law professor Lucian Bebchuk and colleagues shows that firms that profess to be acting in the interests of all the stakeholders are mostly acting in the interest of the shareholders and the executives. The professed support for stakeholder capitalism, says Bebchuk, “is mostly for show.” In effect, the principles that are really driving behavior in those firms are quite different from the professed goals. Understanding a firm’s principles means going “inside the engine room” and finding out what’s actually driving behavior.

They say they are family, that they will die for each other. And so they do, young men in Boston street gangs who for decades have arrived at hospital emergency rooms, felled by gunfire. Some have worn tattoos that read like commentaries on the social and economic deprivations that have shaped their short lives. “Born to be hated.” “Dying to be loved.” “Death is nothing. But to live defeated is to die every day.” The images are “burned into my consciousness,” Dr. Thea James, the director of Boston Medical Center’s violence intervention advocacy program, says in a penetrating documentary film, “This Ain’t Normal,” about the causes of gang affiliations in Boston and the possible solutions. The film is produced by Dennis Wilson, an acclaimed history teacher, basketball coach, and football coach at Madison Park Technical Vocational High School in Roxbury, who for 40 years has witnessed and tried to curb the deadly toll of street violence. Wilson said he produced the documentary with a friend, Rudy Hypolite, to shine a light on the systemic and institutional racism they hold responsible for the long reign of Boston’s urban gang culture. Some of Wilson’s former student-athletes are among the dead. “It’s all about trying to open eyes and save lives,” he said... “This Ain’t Normal” won an Audience Choice Award at the Orlando Film Festival and has been presented twice at Harvard University, first by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, then as part of the Harvard Library’s “Anti-Black Racism Documentary Film Series.” David Harris, the institute’s managing director, said, “The film is a powerful antidote to the way people think about our young people and our communities. Every elected official should have to see it and ponder and wrestle with its lessons.”

The Violent Crime Control and Law Enforcement Act of 1994, commonly known as the crime bill, was sponsored by Joe Biden 26 years ago. It is often blamed for extending tough-on-crime policies that overly criminalized Black Americans. Is this narrative warranted? The issue is complicated, but we’ll do our best to make some sense of it...Former Vice President Joe Biden has been asked repeatedly about his role in creating this bill. It came up during his vice-presidential selection when Congressional Black Caucus (CBC) chair Karen Bass, who was under consideration as his running-mate, responded with a shrewd history lesson. Although Bass reported that she would have opposed the bill if she had been in Congress at the time, she said, “I understand very well why elected officials did what they did, because the masses of the people in these communities were demanding it.” ...As Yale law professor James Forman Jr. wrote in his much-cited 2017 book, Locking Up Our Own, “At the height of the [crack] epidemic, Black political and civic leaders often compared crack to the greatest evils that African Americans had ever suffered.” Writing twenty years earlier, another prominent African American scholar, Harvard law professor Randall Kennedy, argued that “Blacks have suffered more from being left unprotected or under-protected by law enforcement authorities than from being mistreated as suspects or defendants” (“Unprotected or under-protected” are interesting and important choice of words, to which we’ll return)...Let’s return to the “unprotected or under-protected” comment from Prof. Kennedy. Members of the CBC claim they want better policing for Black communities rather than more. This is complicated for people to interpret, especially when polls show that over 80% of Blacks want more police presence, not less. Often, surveys don’t ask the right type of questions about policing—questions that would get at complexity and nuance.

Before the NBA and the National Basketball Players Association announced Friday that the postseason would resume with players and the league working collectively toward social justice goals, we reached out to more than a dozen leaders to ask how they would advise NBA players to use their influence to translate political passions into tangible results...The Milwaukee Bucks spent part of Wednesday on the phone not with federal office-holders or national leaders, but with their state's attorney general and lieutenant governor. Many of the laws that govern criminal justice originate at the local and state levels, and many of the grassroots organizations and local interests that can compel reform from those with power reside in local communities. There are no simple answers to the most serious questions, and no singular route to progress. Our panel of experts offers a range of ideas to this generation of NBA players who are looking toward the next phase of their activism, excerpted below from longer conversations...How deeply do NBA players need to educate themselves in the intricacies of criminal justice reform? Randall Kennedy (Michael R. Klein professor of law, Harvard Law School): One should not expect athletes to be experts in problems involving the administration of criminal justice. There are people who have a demonstrated history of being involved in legislative activity, in litigation, in public education the way these elite players work on their games. The players have stature and some degree of financial resource, and what they are doing has been fantastic. They should link up with those who are knowledgeable and have a track record -- and who could use the help.