Media Mentions

Legal scholar and historian Annette Gordon-Reed ’84 puts the push to remove Confederate statues in context.

As the U.S. looks to crack down on Chinese companies with public listings on its exchanges, firms are being fed buyout proposals. Amid the pandemic, Sino-U.S. trade tensions have been picking up smoke, as President Trump has been blasting China for its lack of transparency on Covid-19. The other issue has been over the beverage maker Luckin Coffee Inc. (Nasdaq: LK) after the company allegedly fabricated $314 million in sales. The Chinese rival to Starbucks (Nasdaq: SBUX) has not only been halted from trading but now faces delisting from Nasdaq. Following the Luckin Coffee scandal, SEC chairman Jay Clayton warned against investing in Chinese stocks for lack of access to audit papers. In May, the U.S. passed a bill that could delist around 800 Chinese listed firms on American bourses, according to Bloomberg...At the time of the report in March 2019, 60 companies had gone private since 2013. Jesse Fried, a professor of law at the Harvard Law School, told CapitalWatch last week that if the delisting bill becomes a law, "stock prices for Chinese firms trading in the United States are likely to decline," which makes "buy-out proposals more appealing to Chinese controllers and increasing buyout deals." He also noted that firms trading on American bourses need to follow the laws, regardless if they are from China, Germany, or the U.S. "We can't let a subset of listed firms, those based in China, refuse to comply. That could end up undermining the integrity of our market, and investors' confidence in it," Fried said...Fried said that if the bill becomes a law and China "does not back down on PCAOB inspections," he believes that they will be "forced to delist." The biggest loser, if this happens, will be U.S. stock exchanges and investment banks. According to a Bloomberg report, the NYSE and Nasdaq would lose millions of dollars in fees that Chinese firms pay to be listed on their bourses.

“You can Tweet a Tweet. But now you can Tweet your voice!” This was how Twitter introduced last week its new audio-tweet option. In the replies to the announcement, however, lingered a warning. “Is this what y’all want?” asked one person, reposting another user’s audio tweet, which used the new feature to record the sounds of… porn. The porn audio tweet is still up without a content warning as of this writing (Update: Twitter labeled the Tweet Monday afternoon). The company’s lack of response could be a harbinger of what’s to come in this new, chatty Twitter. Audio brings with it a new way for pesky trolls and bad actors to spread content, and one that is more difficult to moderate than traditional tweets. The potential solution — voice-to-text transcription — is not ideal...Content moderation researchers told OneZero that while the feature is not inherently good or bad, Twitter — a platform that already struggles with curbing harmful content — doesn’t seem to be prepared for its consequences. “Like any new platform for content on the internet it is going to have all of the bad things that come along with — it’s going to have hate speech, disinformation, threats, bullying,” said evelyn douek, a lecturer at the Harvard Law School who studies regulation of online speech. (Evelyn spells her name using lowercase letters.) “We know that now that’s a part of the internet. And so when you’re rolling out a product you need to think about your plans for dealing with it and [Twitter’s] just didn’t seem to be a very good one.”

The Select Committee on Foreign Interference through Social Media has been tasked with probing the risk posed to the nation's democracy by foreign actors online, but it's been warned against ignoring the power of domestic influence in spreading misinformation. It's also been cautioned against simply enforcing content blocking and leaving the responsibility to a handful of mostly US-based tech companies. The committee on Monday heard from evelyn douek from the Berkman Klein Centre for Internet & Society and Alex Stamos from Stanford Internet Observatory, who both agree it's a battle best fought with transparency and not one about setting a guideline of what is right or wrong information...Meanwhile, douek said a centrepiece for any regulation or policy is getting greater transparency from platforms, telling the committee on Monday, "we cannot fix problems that we don't understand". She said the idea that platforms can and should do more is oversimplifying the problem. Touching on what Australia in particular is facing, douek said overt influence campaigns and homegrown conspiracy theories often receive far higher levels of engagement than covert ones from overseas actors. "Overhyping and securitising the discourse around disinformation campaigns only furthers the aim of such campaigns by increasing the levels of distrust in and apathy towards public discourse more generally," she said. "These second order effects will be, in the long term, far more [of a] panacea than any individual information operation." To that end, douek said the Australian government's response must be grounded in democratic values, including respect for free speech.

An article by Randall Kennedy: Every day in every part of America, people of all backgrounds, but especially people of color, are menaced by poorly regulated police. Absent the fortuity of a video recording, the circumstances of George Floyd’s death would have probably been effectively covered up and buried. Even with the evidence at hand, securing a conviction and appropriate punishment is by no means guaranteed; police caught red-handed abusing civilians have frequently escaped accountability. At the same time, the response to Floyd’s killing has been extraordinary. People of all races, all ages, all gender identifications, and all party affiliations have raised their voices—as one. Hundreds of thousands have taken to the streets braving the risks associated with the pandemic and panicky law enforcement. They act out of grief for Floyd, determined that his killers be punished. They act out of pent-up frustration and fury, keenly aware that despite increased scrutiny of policing over the years, the grisly chronicle of avoidable police killings grows apace. They act out of solidarity with mistreated fellow demonstrators and out of a sense that their dissent is making a real difference. They act out of revulsion for the antics of President Donald Trump, who, far from displaying any compassion, tried to vilify and intimidate protesters and appeal to the nethermost instincts of his electoral base. The breadth and intensity of the expressions of bereavement, solidarity, sympathy, and hopeful demands for reform are what have made this period feel so promising. Organizers from across the spectrum of progressive activism have, to a large extent, conducted themselves admirably, eliciting broad participation, and infusing supporters with fervor and resolve. After years of often overlooked work associated with or inspired by Black Lives Matter, they have clearly honed their skills and become remarkably effective agitators. These are the organizers most responsible for drawing and channeling the massed dissent.

Ninety-nine years after a mob of poor white people killed 150 to 300 African Americans and destroyed the “Black Wall Street” in Tulsa, Okla., the city again made headlines when President Trump announced he would kick off his re-election campaign there on Juneteenth — the day that marks the final end of slavery in the U.S. Although the rally was subsequently rescheduled for Saturday, Trump’s actions brought renewed attention to the 1921 massacre in Tulsa’s Greenwood District, a tragedy that generally has been overlooked in American history classes. This oversight, said participants in a Weatherhead Initiative on Global History webinar on Thursday, is emblematic of — and continues to contribute to — America’s racial divide...Smashing communities and burying their histories erases stories of Black success and possibility, the panelists said...Addressing “the disinvestment and what we’ve done to our cities,” David J. Harris, managing director of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice, which cosponsored the webinar, pointed out the ongoing repercussions. Most recently, he said, “COVID-19 has revealed how these disparities have caused great harm.” “We can never let up,” said Harris. “There’s no way forward until and unless we truly reckon with all of this history.”

Self-sacrifice, at least of the rhetorical variety, is the order of the day among partners in a number of top law firms. As firms began to feel the financial effects of the COVID-19 pandemic in the early weeks of lockdown, scarcely a day went by without news of a major firm making cutbacks, almost always including reductions to partner compensation. Couched as preparations for an uncertain future, a small number of firms have pared back nonlawyer staff. More have zeroed in on compensation. And where this has happened, a disproportionate amount of the burden has fallen on equity partners...There’s certainly a legacy of law firms stripping the balance sheet clean at the end of the fiscal year, distributing all the profits to the partnership and starting fresh.  “This is a historical artifact of law firms that have grown up from a handful of partners sitting around the table to global behemoths,” says Heidi Gardner, a distinguished fellow at Harvard Law School’s Center on the Legal Profession... “At McKinsey, we really did live and breathe clients first,” says Gardner, who spent five years with the company before she began researching professional services firms. Indeed, many of the statements from firms confirming their recent compensation cuts have taken pains to emphasize that resources devoted to client services will remain amply funded. It’s rhetoric, but it also acknowledges a long-term outlook. “Clients are better off when firms are led and structured in ways that help people understand that it is not an individualistic play. They need to be structured and led in a way that people understand there’s no conflict of interest between what’s good for them, what’s good for the firm and what’s good for the client,” Gardner says. “There’s a lot of conventions in standard legal practice that make sure these three don’t have full alignment.”

Donald Trump will not go gentle into that good night: he will rage, rage, rage-tweet against the dying of his might. Indeed, he is already doing so. After a humiliating turnout at Saturday’s rally in Tulsa, Oklahoma – which capped one of the worst weeks of his presidency – Trump’s re-election chances look shakier by the day. Rattled and belligerent, he seems to be gearing up to contest a defeat in November...But Trump does not plan to lose. One reason he may be so obsessed with election-rigging is that he is doing his best to rig the election himself. Earlier this year, the Trump campaign launched a multimillion-dollar legal battle to stop the Democrats making it easier to vote during the pandemic by, for example, expanding mail-in voting. Trump may be deluded about a lot of things, but he seems to realise that the greater the number of people able to vote, the worse his chance of re-election. He told the politics site Politico last week that losing the lawsuits could cost him a second term. If my wildest dreams come true and Trump loses in November, it is, as his recent tweets make clear, almost inevitable that he will contest the results. Whether he is able to do this in court rather than just by screaming into the void depends on how close the results are in important states. “Close” is subjective – “I’d guess that Trump would claim ‘close’ if the margin is less than 10,000 – no matter the size of the state,” says Mark Tushnet, a constitutional law expert at Harvard. But even if he is able to demand a recount, Trump cannot barricade himself in the White House for ever.

An article by Ashley Nunes: Lyft’s all-electric pledge comes amid mounting concerns over auto emissions. Fossil fuel powered vehicles produce dangerous toxins, exposure to which can damage lungs, worsen pre-existing medical conditions and contribute to climate change. Ride-sharing companies have drawn particular ire in this regard. Research suggests they disproportionally contribute to air pollution compared to private car rides. Going electric is one way to temper these criticisms. Standing in the way, however, is cost. Electric cars remain pricier than their gasoline-powered counterparts. That’s a problem, particularly for ride-hailing drivers who must cover their own expenses. Lyft’s solution? To make electric vehicle economics more compelling, so compelling in fact that, according to the company’s sustainability chief Sam Aarons, drivers will be “basically jumping out of their chair at the opportunity to drive an EV.” Lyft’s formula for success relies in large measure on two things: first, the use of government incentives to spur electric car purchases by Lyft drivers. And second, a fervent expectation that manufacturing costs will fall. I wouldn’t bet on either. For one thing, using taxpayer cash to boost electric car sales is a questionable practice at best. Studies consistently show these programs mostly benefit the wealthy. The Congressional Research Service — a US government think-tank — found electric car subsidies mostly benefit high-income taxpayers; specifically, those making more than $100,000 annually. The problem? Drivers for companies like Lyft earn far less. Exactly how much these drivers earn is anyone’s guess. Ride-sharing companies frequently resort to numerical gymnastics when asked about it.

A podcast by Noah Feldman: Julia Marcus, an epidemiologist and assistant professor at Harvard Medical School, discusses how to assess risk when engaging in different social activities.

An article by Annette Gordon-Reed: When I was a little girl, in Texas, I thought Juneteenth belonged to us, meaning to the state of Texas generally and to black Texans specifically. In my small town, the story of Gordon Granger, the U.S. Army general who announced, in Galveston, on June 19, 1865, that slavery was over, was told with seriousness and bits of gallows humor. The older people joked that the Emancipation Proclamation had actually been signed two years before, but “the white people” wanted to get a few extra harvest seasons in before they told “the Negroes” about it. My father would say, with a sardonic smile and a short laugh, that it was worse than that: “the slaves have never really been freed.” The jokes played upon several basic truths. The Emancipation Proclamation had, in fact, been signed more than two years before, but its provisions could only be applied in areas controlled by the U.S. Army. Confederate forces in Texas did not surrender until June 2, 1865. Even after Granger’s announcement, many whites in Texas continued to enslave people who had not heard the news. Those who had heard were often forcibly prevented from acting as if any material change had taken place. Freedom had come in legal terms, but the story was not so clear on the ground as it was on paper. Former enslavers unleashed violence upon the people whom they had claimed as property, and others threatened to do so in order to make people work. Amid joy and hope was great malevolence and power. As my father’s jibe suggested, the legacies of slavery still lingered, putting true freedom out of reach. I don’t recall white Texans celebrating Juneteenth. Then again, I wouldn’t know; the holiday was part of the summer, and summer took kids in my home town out of the schools and back into our racially separated communities.

Barr announced Saturday afternoon that, at his request, President Trump had fired Berman. At the same time, Trump told reporters, “I’m not involved.” So what’s the truth here? It is telling that we do not know which of many possible investigations may have triggered Barr’s ire. There are so many to choose from. AP reports, “The move to oust Berman also comes days after allegations surfaced from former Trump national security adviser John Bolton that the president sought to interfere in an Southern District of New York investigation into the state-owned Turkish bank in an effort to cut deals with Turkish President Recep Tayyip Erdoğan.” There are also the original investigations into campaign finance violations for which Michael Cohen was prosecuted, the alleged insurance and tax irregularities that Cohen alluded to in testimony to Congress, and the investigations into Rudolph W. Giuliani’s nefarious activities in Ukraine. You need a scorecard to keep track of Trump’s legal vulnerabilities. Berman is an acting U.S. attorney appointed by the court and therefore can only be fired by the president until his successor is confirmed. His courageous refusal to depart Friday may buy him time, or at least thereby make Trump directly responsible for what appears to be yet another attempt at obstruction of justice. Constitutional scholar Laurence Tribe tells me, “Under 28 U.S.C. § 546(d), Berman continues to serve as the court-appointed U.S. Attorney for SDNY until the temporary vacancy he was appointed to fill is filled through Senate confirmation of a permanent successor. Even if the president could remove Berman personally, Barr can’t.”

Zoom’s rapid ascent this year has brought with it the scrutiny that most fast-growing tech companies face — mostly in the form of a series of privacy and security concerns. Now, the San Jose-based company is taking a big step towards damage control. The hugely popular video conferencing platform will begin rolling out end-to-end encryption to all its users next month, it said Wednesday, backtracking on a controversial plan to offer the heightened security feature only to paying customers. End-to-end encryption is considered one of the most private ways to communicate online and allows users to have secure conversations without anyone — including the platform they’re speaking on — having access to the data...And offering encryption to all its users has become even more important for Zoom, which was built as a remote workplace tool but is suddenly being used for private events such as birthdays, funerals, government meetings and activist gatherings. “With all of the dissidents and all the people using Zoom now, I think [offering end-to-end encryption only to paid users] is a mistake,” said Bruce Schneier, a cybersecurity expert and a fellow at Harvard University’s Berkman Center for Internet and Society. “I want them to have other features as profit centers, not safety and security.” ... “If you think about what Zoom is doing, they are collecting all the videos, all the voices, putting it together, displaying them nicely. If that stuff is being done in the center, they have to do work on it,” said Schneier. “It does get harder exponentially as the size of the meeting grows.” However, it’s not an insurmountable task, and could be well worth it to restore the trust of Zoom’s users after a series of privacy and security slip-ups. “It’s hard but it’s not go-to-the-moon hard,” Schneier said. “It’s you-just-gotta-do-it hard.”

The weeks of outrage after a white Minneapolis police officer killed George Floyd have made police reform feel more urgent and achievable than ever. As city and state officials across the country debate how to prevent police brutality, law enforcement unions have emerged as a key impediment to reform. The political power of police unions has helped them secure strong job protections ― too strong, reform proponents said...Rather than strip away bargaining rights from police unions, Malin said reform proponents might consider expanding the universe of what those unions bargain for. In general, employers have to discuss only certain mandatory subjects, such as wages and other working conditions. But there could be a way to bring broader community concerns into play...The concept is known as bargaining for the common good. By working together, unions and community groups can advance common goals that benefit both workers and the people they serve...Bargaining for the common good is a central feature of Clean Slate, a sweeping proposal for labor law reform that the Harvard Law School’s Labor and Worklife Program is spearheading. The professors leading that, Benjamin Sachs and Sharon Block, said communities could be looking at ways to apply the concept to law enforcement in order to curb killings and address racism. They are now leading another project to brainstorm ideas for reforming police unions. “The problem is not public sector unions,” Block said. “The problem is police unions, and the lack of accountability structures that police unions have negotiated.” Of course, plenty of police unions may not willingly bargain in the interest of reform supporters. In that case, maybe they could be forced to ― either by opening up bargaining sessions to public oversight or by formally giving community groups a seat at the table when unions hammer out contracts with cities. “Bringing community groups into the bargaining process is something definitely worth considering, … the idea being that certain collective bargaining processes have such profound impacts on the community,” Sachs said. “The argument for it seems pretty clear.”

Ron Klein survived the trench warfare of one disputed presidential election. As co-chair of the Al Gore campaign in Florida two decades ago, he watched lawyers brutally slug it out for weeks over vote recounts. “Republicans were very aggressive,” he recalls, “and they beat the Democrats in court.” Twenty years later, America is now staring down the barrel of an election that could make the shenanigans of Bush v Gore in 2000 look like child’s play. Many voting systems across the US are still rickety and unprepared for a massive surge of mail-in ballots. Cyberhacking, disinformation and the coronavirus are new threats. Most ominously, this time there is an incumbent in the White House many fear will sow doubt, thrive on chaos and simply refuse to accept defeat...But just as in 2000, there appears to be one guaranteed winner of the 2020 election: the legal profession. The looming dispute offers rich pickings. Laurence Tribe, a constitutional law professor at Harvard University, observed: “Both sides are lawyering up to the eyebrows. There are lawyers in every state, both for the Democrats and for the Republicans, trying, depending on how you view it, either to protect the integrity of the vote or to subvert it. “The worst part of that is people are essentially primed not to trust the process. They know it’s easily manipulated and that makes people more prone to listen to Trump and his minions when they say that the vote was stolen from them.”

Twice this week, the Supreme Court thrilled liberals and infuriated conservatives with its decisions, putting the spotlight once again on the man in the center chair, Chief Justice John Roberts. NPR's legal affairs correspondent Nina Totenberg reports. There is much more to come from the court in the coming weeks, but Chief Justice Roberts is clearly putting his stamp on the term so far. He didn't write the court's 6-to-3 opinion on LGBT employment rights, but he joined it and almost certainly assigned the opinion to fellow conservative Neil Gorsuch. Two days later, Roberts wrote the court's opinion blocking the Trump administration's attempt to revoke the Obama-era program protecting the so-called DREAMers from deportation. Senate Democratic leader Chuck Schumer, who voted against Roberts' confirmation, yesterday choked up on the Senate floor...Harvard law professor Richard Lazarus, who's known Roberts for decades, says that early in Trump's tenure, the chief justice ultimately gave the administration a break in the travel ban cases, barring travelers from some mainly Muslim countries. But since then, Trump has put the courts to a constant stress test. And as Lazarus sees the DACA ruling: "I think the central message here is the law applies to everybody, and that includes the president of the United States. And I'm not going to give you any breaks here."

A week in the life of Ben Crump — last week, to be precise. Tuesday in Houston to attend George Floyd’s funeral, where the Rev. Al Sharpton introduced Crump as “black America’s attorney general, probably because we don’t feel like we have one.” Wednesday in Washington to testify before the House Judiciary Committee on racial profiling and police reform. Thursday in Louisville, to convince the city council to pass a law in Breonna Taylor’s name banning no-knock warrants, which passed unanimously. Friday, a return to Houston. The coronavirus pandemic slowed much of the world but the killing of black Americans continued, often at the hands or bended knee of the police. And it didn’t slow Attorney Crump, as he’s known to clients and associates...Police brutality in America, Crump argues, dates its origins to colonial slave patrols in the early 18th century. But “videos have changed everything. They’ve shifted believability,” says Kenneth Mack of Harvard Law School. Generating publicity in advance of trial has a history among civil rights attorneys, including Marshall, Mack says. “Crump’s engaged in multimedia advocacy,” he says. “Putting pressure on state authorities to investigate cases that otherwise would not be investigated.” In a case like Floyd’s, while Minnesota is prosecuting the officers, Crump appeals to the House for reforms and the U.N. to intervene. The legal team often files or sues for public records, advocates for tougher sentencing and uses the media to challenge police accounts.

Calls for social justice and police reform have gained momentum as unrest continues across around the world in the wake of the killing of George Floyd. These calls are intersecting with the coronavirus pandemic. As part of our regular series discussing the coronavirus crisis, The World's health reporter Elana Gordon moderated a live conversation with David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

Today, the Harvard Law School LGBTQ+ Advocacy Clinic (HLAC) and the National Center for Lesbian Rights published a first-of-its-kind legal resource guide for transgender youth in the United States. The newly-released Trans Youth Handbook serves as a comprehensive legal resource guide that covers the rights of trans youth across a wide spectrum of situations, including identity documents, school, health care, non-affirming care environments, and work. The Handbook was written by HLAC’s Alexander Chen and NCLR’s Asaf Orr, who served as the lead authors for the resource, and was produced with the support of volunteers from Salesforce, Baker McKenzie, and Equal Justice Works. “Study after study shows that trans youth thrive when they are respected for who they are and affirmed in their gender identities,” said Alexander Chen, Esq., Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic. “I am delighted that this important resource will be available to trans youth and their families who are seeking to understand their legal rights.” “The Trans Youth Handbook gathers critical information transgender youth need to understand their legal rights in an easily accessible and digestible form,” said Asaf Orr, Esq., Senior Staff Attorney and Director of NCLR’s Transgender Youth Project. “We hope the handbook will give transgender youth the tools and confidence to advocate for what they need—and are entitled to—so they can thrive. We are excited to co-author this incredible resource and look forward to updating it as our laws and society continue to recognize the unique needs of transgender youth and protect this vulnerable group from discrimination.”

The police killing of George Floyd sparked widespread protests and reignited efforts across the U.S. to remove Confederate and other statues viewed as symbols of slavery and racism. In several cities, these tributes have been vandalized or torn down by protestors or removed by public officials. A high-profile decision to tear down a famous bronze figure of Robert E. Lee in Richmond, Va., was halted by a court challenge, which was extended indefinitely on Thursday. A 2018 report from the Southern Poverty Law Center found there are more than 1,700 monuments to the Confederacy still in public spaces. Annette Gordon-Reed, a historian of U.S. slavery, legal scholar, and member of the Presidential Initiative on Harvard and the Legacy of Slavery, spoke with the Gazette about the issue. Gordon-Reed is a professor of history and the Charles Warren Professor of American Legal History at Harvard Law School. She won the Pulitzer Prize and National Book Award for her explosive 2008 work, “The Hemingses of Monticello: An American Family.”

An op-ed by Jack Goldsmith and Marty Lederman: The U.S. government filed a civil suit on June 17 against former National Security Adviser John Bolton. It primarily seeks an injunction against the planned June 23 publication of Bolton’s book, “The Room Where It Happened: A White House Memoir,” and a “constructive trust” that would give the United States the right to all of Bolton’s profits from the book. The case has been assigned to Judge Royce Lamberth of the U.S. District Court for the District of Columbia. This post explains the case and offers our initial thoughts. The big news to us about the government’s case is that it’s weaker than we expected. We should emphasize, however, that these views are preliminary and incomplete. The case implicates a complex and in some ways unsettled area of law. The most important thing to understand about the case is that the government is suing Bolton for a breach of contract—two contracts, in fact. As the government’s complaint describes, the contracts in question are nondisclosure agreements (NDAs) that Bolton signed on April 5, 2018, when he entered government service as national security adviser. These NDAs are included as attachments to the complaint. The first NDA, Standard Form 312, contains obligations Bolton assumed as a condition of obtaining access to classified information generally, that is, a “security clearance.” Two are pertinent here.