Media Mentions

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.

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

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

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

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

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

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

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