Media Mentions

On a drizzly San Francisco day in December, Eric Ries is stationed inside the Succession-worthy offices of Orrick, Herrington + Sutcliffe...The 41-year-old’s 2011 bestseller, The Lean Startup, introduced the masses to product/market fit, minimum viable product, and the pivot. It also vaulted Ries into nerd celebrity status, a coach and mentor to Silicon Valley’s elite...Ries is now focused on his most ambitious — and risky — venture yet: a new stock exchange called the LTSE, or Long-term Stock Exchange...The LTSE is a controversial new exchange that, Ries argues, will create a fundamental shift in the capital markets...It turns out that the very tools of short-termism that Ries rails against — activist investing and short selling (often deployed in combination) — serve a purpose. “Activist investors and short sellers each play an important role in our market ecosystem,” says Jesse Fried, a Harvard Law professor who focuses on corporate governance and security regulation. “The former exerts a disciplining effect on managers, and the latter improves price accuracy.” Take that away, critics argue, and you have a sloppy system where power resides disproportionately in the hands of founders and a select group of institutional investors who can afford to buy and hold, consolidating power so they can effectively ignore other shareholders as they pursue bad ideas.

On Tuesday, President Trump pardoned or commuted the sentences of 11 people he said had served enough time or been treated unfairly. The moves come as the president has sharply criticized the Department of Justice for its handling of the case of longtime Trump advisor Roger Stone. William Brangham talks to two former judges, Harvard Law School’s Nancy Gertner and University of Utah’s Paul Cassell.

On March 24, the Supreme Court is scheduled to hear one of the most momentous tech cases in decades...The case is Google v. ­Oracle, and it turns on who owns scraps of computer code known as APIs. Short for application programming interfaces, APIs allow one computer program to talk to another by letting, for instance, a weather app pull live temperatures from a third party and then display them on a map. APIs are an essential building block of the digital economy, and in the blockbuster case Oracle says Google committed copyright infringement by using its APIs without permission...A final wild card in the case is the fact that the aged members of the Supreme Court are unlikely to have deep knowledge of APIs. Harvard law professor Rebecca Tushnet, who filed a brief supporting Google and its fair-use argument, believes the justices will get up to speed when the case goes to trial. Nonetheless, she acknowledges there is a risk they may overlook the technical intricacies of the case—including that Google is claiming only a specific subset of APIs shouldn’t be copyrighted. If this happens, the justices may rely instead on the broader story lines that the companies are arguing. “A compelling narrative always matters. It gives the court a reason to find in your favor,” says Tushnet. “One framing of the story is that Google went ahead and plundered. The other framing is Oracle took something that belongs to everyone else.”

An article by Noah Feldman: Since Virginia voted to ratify the Equal Rights Amendment in January, there’s been lots of speculative talk about the future of the long-stalled constitutional amendment. The House voted Thursday to remove the deadline for ratification (which came and went decades ago), and the technical questions about that deadline are intriguing — the deadline itself has elicited opinions from, among others, the Office of Legal Counsel and Justice Ruth Bader Ginsburg. But more important is an underlying question: Would it make any real-world legal difference if the ERA were enacted today? Or would the consequences be symbolic at most? The answer turns out to be more complicated than you might think. When the ERA was sent by Congress to the states for ratification in 1972, its passage would certainly have effected immediate change in constitutional doctrine. But in the years since, the Supreme Court has interpreted the Constitution to provide a set of protections against sex-based discrimination that come close to what ERA supporters hoped the amendment would achieve.

On a recent morning in Santa Monica, California, Sergio Avedian pulled into the parking lot of a Vons supermarket, signed into the Uber driver app, and waited. At 7:07 am, a ride request came in for a trip to LAX that the app promised would earn Avedian between $9 and $12. He declined it...Thirty minutes later, he got it: A 15-mile ride toward Glendale, near where he lives. Just over an hour later, he dropped his passenger off. She paid $93.51; he pocketed $76.68. Avedian has been driving part time for Uber and Lyft for four years, but just two months ago, or anywhere outside California, this sort of strategy wouldn’t have worked. But in January, in response to a new state law, Uber changed the workings of its driver app in the Golden State, affecting some 395,000 drivers. Drivers can now see where a rider wants to go and an estimated payout before they accept. They are, theoretically, not punished by the Uber algorithm for rejecting too many rides. (Though starting last week, Uber began sending fewer requests to those who reject or cancel the vast majority of their ride requests.) Driver bonuses are structured differently. And around three California airports, Uber is experimenting with allowing drivers to choose their own fares... “Employers often respond to changes in the law by tweaking their business practices to avoid responsibility, and that’s clearly what we’re seeing here,” says Benjamin Sachs, a professor of labor and employment law at Harvard Law School.

The importance of providing police officers with comprehensive animal encounter training was addressed in a measure approved by the ABA House of Delegates at the 2020 ABA Midyear Meeting in Austin, Texas, on Monday. Resolution 103A encourages the use of laws and policies that provide training on the amount of force that is reasonably necessary during encounters with family pets and other animals to protect both officers and the public, reduce potential legal liability, and ensure the animals are treated humanely...Chris Green, the executive director of the Animal Law and Policy Program at Harvard Law School and the former chair of the Tort Trial and Insurance Practice Section’s Animal Law Committee, spoke in favor of the resolution. He said shootings of animals increase the risk of police officers accidentally shooting innocent bystanders, including children, as well as the legal liability for governments that may need to settle with victims’ families. “When things go wrong, the physical, emotional, legal and financial consequences can be catastrophic,” he said. Green added that when states like Texas and cities like Chicago promoted nonlethal animal encounter training programs, they significantly reduced unnecessary accidents involving police officers and animals.

Sarah Elizabeth Adams was around 5 when her mother was sold to a slave dealer in Lynchburg, Va. The auction took place in the mid-1840s, in the town of Marion, Va. Sallie, as she was called, was herself sold that day, but not with her mother: A man named Thomas Thurman purchased Sallie to take care of his sick wife. Sallie and her family were among the 1.2 million enslaved men, women and children sold in the United States between approximately 1760 and 1860, according to the historian Michael Tadman. After the American Revolution, cotton production grew rapidly, and demand for enslaved workers on the vast plantations of the Deep South intensified...Even well-known sites of slave labor look different when seen through the lens of the auction. When Thomas Jefferson died, on July 4, 1826, the enslaved people he owned at Monticello suddenly faced a perilous future...Spurred on by the pioneering research of Annette Gordon-Reed, Lucia Stanton, Niya Bates and others, Monticello has more fully acknowledged Thomas Jefferson’s legacy as not just the writer of the Declaration of Independence but also an enslaver. At his plantation, the auctions are described in an exhibit, but in downtown Charlottesville, where the second occurred, there is no specific mention of the auction.

An article by Todd Carney '21: Since 2014, Russia and Ukraine have been locked in a conflict in Donbas that has killed thousands. Despite the fighting, the two countries have been able to maintain an economic relationship centered around one industry: energy. A new Russian energy project threatens to undermine that relationship and impact U.S. energy interests in Europe. The new project, Nord Stream 2, will enable Russia to provide natural gas to Germany directly instead of going through Ukraine. This has stark consequences for Ukraine: What little leverage Ukraine holds over Russia comes largely from the fact that Russia has to export most of its natural gas through Ukraine in order to reach Europe. If Russia can bypass Ukraine, the pipeline would make that leverage obsolete. But this project impacts not only Ukraine but also the United States. Some observers in the U.S. see the pipeline as a way for Russia to subtly spread its influence in Europe by deepening European dependence on Russia for natural gas. Analysts fear this will make it more difficult for the U.S. to recruit European support in holding Russia accountable for its transgressions. In response, the U.S. has enacted sanctions to try to slow down the Nord Stream 2. Despite the sanctions, Russia is nonetheless aiming to continue the pipeline project.

An article by Daniel Pessar '20: The growth of certified organic farming is booming; approximately 26,000 United States producers and businesses are now certified as organic operations and thousands of international firms have been certified as well. The road to getting certified by the USDA National Organic Program can be challenging; requirements include “no prohibited substances applied to [the land] for at least 3 years before the harvest of an organic crop,” specific rules for managing “soil fertility and crop nutrients,” and the absence of “genetic engineering, ionizing radiation and sewage sludge.” The time, complexity, and tools required for the transition can also be costly, especially during the three years of implementation when the farm lacks the benefit of the USDA Organic label. Of course, the overall benefits can outweigh the costs as higher prices for food products compensate for the new cost structure. And there could be long-term benefits from the organic farming practices such as reduced soil erosion and increased soil fertility. But another benefit that could be available to farmers considering the switch to organic is a tax benefit obtained by donating a conservation easement.

Index funds—the low-cost mainstay of retirement accounts and college funds—are so popular that they now hold a surprisingly large share of U.S. corporations. These passive investment vehicles purchase shares of companies so that their holdings mirror common measures of market performance, such as the S+P 500, which is weighted by market capitalization. Now, a series of papers from the Law School’s Program on Corporate Governance sounds the alarm about the ways index-fund managers are using their expanding influence—or not. Ames professor of law, economics, and finance Lucian Bebchuk, director of the program, shows through empirical analysis that index funds often vote against the financial interests of investors...BlackRock, State Street Global Investors, and Vanguard, the so-called “Big Three” index-fund investors, collectively cast about 25 percent of proxy votes in all S+P 500 companies (a common benchmark for large, publicly held corporations), Bebchuk says, a percentage that he and his coauthor, legal scholar Scott Hirst of Boston University, expect to increase. “If trends of the past two decades continue for another two decades, the ‘Big Three’ will grow into what we term the ‘Giant Three,’” he says, projecting that they would cast up to 40 percent of such votes by 2040.

President Trump’s attempt to threaten and bully a federal judge may well backfire, at least we should hope it does. The judicial branch is the last brake on a spiteful president determined to pursue political enemies and destroy the Justice Department’s reputation. ...Constitutional scholar Laurence Tribe tells me, “The Attorney General’s highly unusual and transparently political intervention in the thoughtful sentencing recommendations of the line attorneys in [Trump confidant Roger] Stone’s case was outrageous and understandably led to the resignations of the prosecutors who had been assigned the case.” He observes, “They should be commended for risking their careers to stand up for principle. Hopefully the federal court doing the sentencing will pay as little attention to what Barr recommends as his political intrusion into the matter warrants.”

An op-ed by Laurence Tribe: The Department of Homeland Security recently decided to bar New York residents from federal programs that allow “trusted travelers” expedited transit through airports and border checkpoints. The Trump administration is defending the decision as a rational response to New York’s enactment of a law denying federal immigration authorities free access to the state’s motor vehicle records. In truth, the department’s decision is spiteful retaliation against people who reside in a state that declines to bend to the administration’s immigration priorities. Whatever its other virtues or vices, the decision offends constitutional norms that are neither liberal nor conservative but simply American.

A former law clerk for one of the nation's most-renowned appeals court judges accused him Thursday of a crude, prolonged campaign of sexual harassment. Attorney Olivia Warren said during a House hearing that, during a clerkship that began in 2017, 9th Circuit Judge Stephen Reinhardt repeatedly insulted her over her appearance, made vulgar comments, and disparaged other women who had leveled allegations of sexual harassment and assault. Reinhardt, a Jimmy Carter appointee long viewed as the leading liberal stalwart in the nation's largest judicial circuit, died in 2018 at age 87. "Mainly, he suggested I was horrifically unattractive," Warren testified. "He questioned whether my husband could ... be real given how unlikely it seemed to him that any man could ever be attracted to me. He speculated to me that if my husband in fact existed he was doubtless a ‘wimp’ or gay."

NPR's Noel King talks to former Justice Department official Jack Goldsmith about Attorney General William Barr's public rebuke of President Trump for his Twitter attacks on the Justice Department.

Last April, the head of the Environmental Protection Agency, Andrew Wheeler, proclaimed at an auto show here that he would soon roll back President Barack Obama’s stringent fuel efficiency standards. That, the administration contends, would unleash the muscle of the American auto industry. It would also virtually wipe away the government’s biggest effort to combat climate change. Nearly a year later, the rollback is nowhere near complete and may not be ready until this summer — if ever. “They look like they’re headed to a legal train wreck here,” said Richard Lazarus, a professor of environmental law at Harvard University...“If the costs to the economy exceed the benefits, and there are no environmental benefits, the courts would classically look at this as an arbitrary and capricious policy,” said Mr. Lazarus, who specializes in environmental law at Harvard. “That makes it very vulnerable to being overturned.”

Settle in for a drawn-out legal battle over the Federal Energy Regulatory Commission's new plan for energy resource participation in the biggest electricity market in the country. Legal experts say potential lawsuits targeting FERC's recent "minimum offer price rule," or MOPR, for the PJM Interconnection capacity market will take awhile to get off the ground. FERC's commissioners have yet to say whether they will agree to a rehearing requested by dozens of state officials, environmental groups and some trade associations, and the agency could use tolling orders to further delay the process. But even if the timing of possible litigation is unclear, the legal arguments over the December order are already coming into focus...Under the new rule, for example, a nuclear power plant that receives state subsidies for reducing carbon emissions could be kicked out of PJM's capacity market. The subsidies are protected under state law and the courts, so ratepayers will continue to pay for them, but PJM would have to pretend those resources — in this example, nuclear power — do not exist, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. "Ratepayers end up overpaying because PJM will be procuring enough resources for the entire region," he said. "But at the same time, ratepayers will also be paying these resources outside the market through these state programs."

An article by Todd Carney, JD '21: Over the last three years, the world has seen two European democracies, Slovakia and Malta, face major political scandals regarding the murder of a journalist in each of their countries. Slovakia and Malta are not the only countries to make headlines over the scandals of murdered journalists. Both Russia and Saudi Arabia have faced allegations regarding their governments murdering journalists. This raises the question of what international legal protections exist for journalists? Though international law of course does not sanction the murder of people in general, journalists can be more at risk, especially when journalists are doing political reporting on problematic practices of a corrupt government. In response to the danger posed to journalists, there should be more legal protections establish on the international level to defend journalists globally. This piece looks at the current protections under international law for journalists and how further protections could be established.

An article by Aditi Shah JD '20:  When, if ever, must the federal court door be open to an asylum-seeker facing expedited removal who claims that the government violated his statutory, regulatory and constitutional rights? In less than a month, this question will be argued before the Supreme Court. At stake are the fates of noncitizens being forced to return to the persecution they fled, the government’s ability to administer an important part of the immigration system, and the judiciary’s role in holding the executive accountable. This term, the Supreme Court granted the government’s petition for certiorari in Department of Homeland Security v. Thuraissigiam, a case about how much judicial review is constitutionally required for immigrants facing expedited removal. The court agreed to review the U.S. Court of Appeals for the Ninth Circuit’s holding that 8 U.S.C. § 1252(e)(2), the provision of the Immigration and Nationality Act governing habeas proceedings, is unconstitutional under the Suspension Clause as applied to the respondent, Vijayakumar Thuraissigiam. The case implicates contentious debates about the constitutional rights of asylum-seekers and carries practical consequences for government regulation of expedited deportation.

Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE) this week held the first in a series of eight tentative hearings scheduled for this year on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act. Tillis’ goal is to address changes to the internet since the DMCA was passed in 1998, and by December 2020 to release draft text of a reform bill for stakeholder comment... Professor Rebecca Tushnet of Harvard Law School and Professor Jessica Litman of University of Michigan Law School strongly cautioned the Subcommittee against conflating all internet service providers with Google and Facebook.  “Only a few services receive millions of [takedown] notices,” Tushnet said. “Most don’t need and couldn’t survive a requirement to use technological mechanisms to filter out rare infringements. If Congress changes 512 to target Google and Facebook, it will ensure that only they are left, making the problem of market concentration even worse.”

They need it, but they resent that they need it. They've acquired it, but are almost embarrassed by it. They rail against it, but end virtually every speech or debate closing remarks asking people to please give it to them. The Democratic presidential contenders have a love-hate relationship with money, which is essential to running a presidential campaign but which – among Democrats at least – carries a sort of dirty quality that has contenders competing not just for dollars but for dollars they claim are cleaner than everyone else's...Modern politicking has gotten very complicated for the Democratic field, which is seeking to appear the most sympathetic to poor and middle-class Americans while simultaneously struggling to amass war chests that will force the others out of the race. "On the one hand, I think it's good Democrats are concerned about money. I do think money is a corrupting influence in our government," says Harvard Law School professor Lawrence Lessig, author of the book "They Don't Represent Us: Reclaiming Our Democracy" and a one-time Democratic presidential candidate who ran on a platform of reforming money in politics. But "I also think the way it's playing out in the presidential election is a little bit crazy," he adds.

The first of 2020’s big copyright hearings started with a nod to Chumbawamba. Senator Thom Tillis (R-NC) had looked up which band topped the charts in 1998, the year Congress passed the Digital Millennium Copyright Act — one of the most influential and controversial laws governing the internet. Then, Tillis paused soberly. “I don’t know if we’re talking a lot about Chumbawamba” these days, he said. And the DMCA itself? “Almost every single thing about the internet has changed over the past 22 years, and the law simply hasn’t kept pace.”...The 1998 DMCA attempted to outline how copyright should work on the then-nascent internet, where you could almost freely and infinitely copy a piece of media. But it’s been widely criticized by people with very different stances on intellectual property. Supporters of tougher anti-piracy rules, for instance, argue that its “safe harbor” rules don’t motivate websites to keep pirated content offline. Conversely, internet freedom advocates say its takedown system provides a de facto censorship system for the web. And the DMCA’s reach touches far-flung issues like farm equipment repair, which makes it unavoidable even for industries with no piracy problems. This week’s hearing focused on two pieces of the law: Section 512, which spells out platforms’ liability for pirated content, and Section 1201, which limits cracking digital copy protection. “Most service providers don’t need and can’t get expensive filtering technology” that they’d need to implement a “stay-down” system, said Harvard Law School professor Rebecca Tushnet. “If Congress changes the DMCA to target Google and Facebook, or because of rogue overseas sites that already aren’t complying with the DMCA to begin with, it will ensure that only Facebook, Google and pirate sites survive.”