Media Mentions

Oregon law professor who rose to national prominence as an Oregon Supreme Court justice, died Monday. He was 96. Linde was regarded as a prolific legal scholar who made groundbreaking arguments in the role that state constitutions could play in protecting civil liberties. “Hans Linde was one of the giants of the American judiciary,” Harvard law professor Laurence Tribe said. “His brilliant work both as a law professor, and for a little over a dozen years as a justice on Oregon’s highest court, addressed not just important issues of state law but also unsettled questions of federal constitutional law in a series of opinions, articles and books that were justly influential throughout the nation and ultimately the world.” Linde became an associate law professor at UO in 1954, spent the next four years as a legislative assistant to Oregon Sen. Richard Neuberger and returned to the UO law school as a professor in 1959...Tribe, the Harvard law professor, said Linde's work to ensure civil liberties is as important today as ever. "In a time when the very survival of our constitutional republic is under threat," Tribe said, "work that he did decades ago is likely to come to the fore and provide a fertile resource for scholars, lawyers and judges struggling to save constitutionalism and the rule of law."

An initiative cracking down on gun crimes in the District targeted three predominantly Black wards and was not enforced citywide as announced, U.S. prosecutors acknowledged in court records, drawing attacks that the policy disproportionately subjected African American defendants to lengthier prison terms. The geographic targeting of the program launched in February 2019 — under which felons caught illegally possessing guns are charged under federal statutes — was recently disclosed after a defendant challenged the program backed by D.C. Mayor Muriel E. Bowser (D)...The initiative’s original scope was disclosed by prosecutors in litigation with defendant John Victor Reed, who moved this March to dismiss his one-count indictment from March 2019 of unlawful possession of a firearm by a felon. Represented by federal defenders and Harvard law professor Andrew Crespo, Reed argues the program unlawfully nullifies the authority of local gun statues and courts, is arbitrary and capricious and retaliates against defendants who sought pretrial release in D.C. Superior Court... “It’s bad enough that D.C. is the only city in the country without any control over its local prosecutor,” Crespo said. “At a minimum, it deserves honesty and transparency from its U.S. attorney.” Crespo declined to comment on the U.S. attorney's office reported modification of the program, saying the change has not been reported to the court.

The head of the Environmental Protection Agency argued Thursday that the Trump administration, which has aggressively rolled back environmental regulations in recent years, has done more to help vulnerable communities deal with pollution than the “misdirected policies” and “misused resources” of its predecessors. Fifty years after President Richard M. Nixon created the EPA, its current leader, Andrew Wheeler, traveled to his presidential library in California on Thursday to outline a vision for the future that emphasizes economic development instead of tackling climate change...The Obama administration led the effort to craft the global compact, making climate a top priority as it created regulations to reduce the country’s greenhouse gas emissions and encourage a shift to solar, wind and other cleaner sources of energy...Under Trump, the EPA has sought to reverse a slew of Obama-era policies, while continuing to implement programs mandated by Congress to spend tens of billions of dollars on water infrastructure upgrades. Lawmakers also have refused to go along with Trump’s efforts to gut the agency’s budget. According to the regulatory rollback tracker by the Harvard Law School Environmental and Energy Law Program, the EPA has eliminated or repealed 19 existing rules, though most of these are being challenged in court. The changes affect a slew of policies, from which waterways the federal government must safeguard from pollution to the sort of toxic waste power plants can discharge.

An article by Noah Feldman: Lawyers for Kyle Rittenhouse, the seventeen-year old charged with murdering two peaceful protesters in Kenosha, Wisconsin, say they are going to raise a Second Amendment defense to one of the six criminal charges he faces — that of unlawful possession of a firearm by a person under the age of 18. As reported in some outlets, the defense would claim that the law doesn’t apply to Rittenhouse because he was a member of a “well regulated militia” under the Second Amendment. Framed that way, the defense is genuinely wacko. The militias contemplated by the Second Amendment were state-controlled units, not armed vigilantes. Ever so slightly more plausible, however, is the related argument that the right to bear arms should treat 17-year olds the same as 18-year olds. Although this argument won’t win in court, it does raise the issue of which constitutional rights should belong to underage teenagers and which kick in at the age of majority. To dispense with the truly crazy part first, rest assured that no court has ever found or will ever find that self-organized vigilante militias are specifically protected by the second amendment. The amendment reads: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” What the framers had in mind was their deep, small-r republican distrust of standing armies. Drawing on the example of ancient Rome, the framers feared that the generals at the head of standing armies would use their troops’ loyalty as a tool to subvert elected leaders and become dictators. Instead of a standing army, they preferred citizen-militias: official, state-organized and controlled military units made up of ordinary people who held day jobs, ideally as hearty yeoman farmers. The right to “keep and bear arms” in the Second Amendment was, in the original understanding, a collective right of the “people” to belong to these state-run units.

El Paso County, Texas, and an immigration advocacy group urged the U.S. Supreme Court on Wednesday to take up their challenge to President Donald Trump's diversion of billions in defense dollars to border wall construction before the Fifth Circuit weighs in. El Paso and the Border Network for Human Rights request to leapfrog over the Fifth Circuit contends that their challenge to the border wall transfers poses different legal questions than the ones the Sierra Club used to convince a California court to put a nationwide bar on the funding diversions. The Trump administration has asked the Supreme Court to review the California injunction order, which was upheld by the Ninth Circuit. But El Paso argued that the high court must hear all the border wall challenges at once to fully resolve the issue...Laurence H. Tribe, a Harvard University Law Professor and co-counsel for the plaintiffs, pointed out that the Supreme Court has allowed the government to skip the court of appeals and bring a case right to nation's justices. "[The Supreme Court] should certainly grant El Paso County's request to have the issues in its case heard now," he said in a statement. The Supreme Court granted two "cert before judgment" petitions over the Trump administration's rescission of the Deferred Action for Childhood Arrivals program at the request of the solicitor general, according to the instant petition...El Paso and the border group are represented by Kristy Parker, Justine Florence and Deana K. El-Mallawany of The Protect Democracy Project Inc., Richard Mancino and Shaimaa M. Hussein of Willkie Farr & Gallagher LLP, Anton Metlitsky, Bradley N. Garcia and Ephraim McDowell of O'Melveny & Myers LLP, Stuart Gerson of Epstein Becker Green, David Bookbinder of Niskanen Center and Laurence H. Tribe of Harvard Law School.

Hans A. Linde, a prolific legal scholar who served on the Oregon Supreme Court and made groundbreaking arguments about the role that state constitutions can play in guarding civil liberties, died on Monday in Portland. He was 96. His death was confirmed by his son, David, the chief executive of the film and television production company Participant...In the early 1970s, as the U.S. Supreme Court grew more conservative following President Richard M. Nixon’s appointment of four justices, Justice Linde published articles urging lawyers to bring civil rights cases in state courts and to make arguments grounded in the provisions of state constitutions. Those provisions often offered protections beyond those guaranteed by the federal Bill of Rights, he wrote, and decisions made on purely state-law grounds are generally not subject to review by the U.S. Supreme Court “Much of the stuff that goes to the Supreme Court would never have to go there,” Justice Linde said in an interview with The New York Times in 1990, the year he retired from the bench, “if lawyers abandoned this notion that the federal courts are the big leagues and the state courts are the farm teams.” Lawyers listened. Many of the gay rights movement’s early judicial victories, for instance, were won in state courts...Indeed, Justice Linde’s scholarly and judicial work was wide-ranging and penetrating, touching on free expression, the death penalty, contracts, torts and criminal law. “Hans Linde was one of the giants of the American judiciary,” the Harvard law professor Laurence H. Tribe said by email. “His brilliant work both as a law professor, and for a little over a dozen years as a justice on Oregon’s highest court, addressed not just important issues of state law but also unsettled questions of federal constitutional law in a series of opinions, articles and books that were justly influential throughout the nation and ultimately the world.”

“Purpose” is trending. In the past couple weeks alone, major business journals including McKinsey Quarterly, Knowledge@Wharton, and strategy+business have spotlighted the importance of corporate purpose. If you’re a business leader, it’s clear you need to be thinking about the purpose of your enterprise now more than ever. But having a purpose statement doesn’t automatically translate into leading an organization purposefully — and your purpose is at risk of being pointless if you don’t: use a single overarching purpose; ensure stakeholders buy into it; implement strategies for operationalizing it...To power your purpose, ensure key stakeholder groups – especially customers, employees, board members – embrace and endorse it. It isn’t necessary or even appropriate to “test” your purpose among customers because it should be derived from the aspirations and vision of the company’s leaders. But you should ensure your purpose is grounded in a deep understanding of your customers’ needs, desires, and expectations. And if and when you share your purpose with customers, they should find it strongly compelling and resonating...Right now, it doesn’t seem like many of your counterparts understand the importance of board buy-in on purpose. According to an analysis published in the Harvard Law School Forum on Corporate Governance, the vast majority of signatures of CEOs on the Business Roundtable statement were not approved by the companies’ board of directors. The researchers conclude, “The most plausible explanation for the lack of board approval is that…CEOs didn’t regard the statement as a commitment to make a major change in how their companies treat stakeholders. In the absence of a major change, they thought that there was no need for a formal board approval.”

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.