Media Mentions

The most valuable company in the world never to have made a quarterly profit is on a stock market run.  Pinduoduo, which claims to have reinvented online shopping in China, has seen its share price rise by more than 130 per cent in the past three months, giving it a market value of $101bn, above that of Uber or Sony and twice that of Baidu or Foxconn.  Its founder and chief executive, Colin Zheng Huang, who earned his master’s from the University of Wisconsin-Madison and later worked at Google, is now China’s third-richest man, behind Jack Ma, the founder of Alibaba. He attributes Pinduoduo’s success to a magic formula of bargains and entertainment — he has said he wants his company to be both “Costco and Disneyland”...Pinduoduo has never had a formal chief financial officer despite its US listing. The company’s previous “vice-president of finance”, Tian Xu, resigned for personal reasons in April last year after just 10 months in the job. “Concentrating almost all corporate power in the hands of a single individual should raise a red flag, as it creates substantial corporate governance risk,” said Jesse Fried, a corporate governance expert at Harvard Law School. “That’s true even if a corporate controller serves as board chair and CEO, but not CFO. But what’s unusual and particularly worrisome here is that the controller is also effectively the CFO.”

All this week, we’ve been looking at internet access, cost, infrastructure, and today, competition. Actually, the almost complete lack of competition.  According to a 2017 study from the nonprofit Institute for Local Self-Reliance, more than 129 million people in the U.S. only have one option for broadband. Is that a government problem or a free market problem? I spoke with Susan Crawford, a law professor at Harvard and the author of the book “Fiber: The Coming Tech Revolution — and Why America Might Miss It.” The following is an edited transcript of our conversation.

Many Americans receiving tax refunds this spring and summer, including some who haven’t even filed their tax returns yet, will receive interest payments from the Internal Revenue Service for late refunds. Any individual income tax refunds issued after April 15 will be paid with interest, even though the tax-filing deadline has been extended to July 15. That IRS decision, announced Wednesday, stems from a quirk in the tax code and in the way the filing deadline was extended. The result: Many people who chose to delay filing their tax returns will get a bonus from the government. The IRS, meanwhile, will be paying for the privilege of holding on to the money since April 15—even to taxpayers who haven’t claimed it yet...The tax-code section governing interest payments says the 45-day period is determined from the due date without regard to extensions. This year, however, that 45-day rule isn’t in effect and interest started accruing after April 15. The IRS said the interest payments may arrive separately from tax refunds. The IRS approach seems fair, and it makes sure to provide interest payments to people who filed early and are still waiting for refunds, said Keith Fogg, who directs the Harvard Law School program that offers tax assistance to low-income households. “The IRS seems to have chosen a method that is very taxpayer friendly and will not subject it to criticism,” he said. “Hard to fault it for that.” There is one catch: The interest payments from the IRS will count as taxable income for 2020.

An appellate panel's decision ordering a judge to dismiss charges against former national security adviser Michael Flynn could face review by the full D.C. Circuit over issues of judicial authority and questions about whether the appeals court overstepped its own bounds. The appellate court on Wednesday ordered U.S. District Judge Emmet Sullivan to approve the U.S. Department of Justice's move to drop the two-year-old case against Flynn, who had already pled guilty but sought to withdraw the plea over alleged prosecutorial misconduct. Legal observers noted on Wednesday that the full 11-member appeals court can revisit the question of whether it had the authority to weigh in before Judge Sullivan had even ruled on the motion. Nancy Gertner, a retired federal judge and lecturer at Harvard Law School, told Law360 that the appeals court had done the "unthinkable" by issuing a writ of mandamus forcing Judge Sullivan to make a ruling before he had gotten around to making one himself. The ruling could encourage parties to attempt end-runs around federal judges by asking appellate courts to weigh in, she said. "It is simply extraordinary to order mandamus when the district court judge has not made a decision," Gertner said. "What it invites is the functional equivalent of disqualification of a trial judge by the court of appeals — you don't like what the judge is doing, you go up for mandamus." Gertner is one of two dozen former federal judges who had filed an amicus brief in the case in support of Judge Sullivan.

Sharon Block and Benjamin Sachs discuss how the pandemic has turned a spotlight on the lack of clear workplace protections in general, and in particular…

The Trump administration’s march to reshape federal environmental protection has gathered pace during the coronavirus pandemic, resulting in lighter regulation of America’s air and water. The two-pronged effort includes temporary measures aimed at fostering economic activity as well as permanent rule changes that are being pushed through in time to prevent Democrats — should they sweep November’s election — from using a little-known legislative tool to overturn them. “We’ve seen a sense of urgency in the first half of 2020 to get some of their higher-ranked items out the door,” said Hana Vizcarra, staff attorney at Harvard University’s Environmental and Energy Law Program...If Democrats were to keep control of the House and take back the Senate and the White House, they might be able to use the CRA to reverse some of the rules published by the Trump administration. Which regulations could be considered remains unclear, because it is not known how many “legislative days” there will be this year, given the time lost to the pandemic. According to George Washington University’s Regulatory Studies Center, the 60-day clock probably started ticking in late May, but might not begin until July or August. Harvard’s Ms Vizcarra estimates that of the environmental rules finalised in 2020, at least four were probably completed early enough to be safe from review under the CRA...The EPA said mercury emissions would still be regulated under Clean Air Act standards. However, the day it withdrew the “appropriate and necessary” finding, the entire regulation was challenged in a lawsuit filed by a coal company, Westmoreland Mining Holdings.  “The standards are still in place but they’ve lost this pretty major legal underpinning. And so of course, that makes them vulnerable to legal challenges,” said Laura Bloomer at Harvard.

A few weeks ago, Angely Lambert was serving customers at a McDonald’s on a bustling commercial strip in Oakland, California, when she started to feel ill on the job. Her sharp headache and dull body aches bothered her enough that she asked if she could go home, she told me, but a manager insisted that she finish her shift....Frightened, angry, essential: This is American labor during the coronavirus pandemic. Decades of economic trends and legal shifts have tilted the balance of power in the employer-employee relationship toward corporations and away from workers. This means that, months into the pandemic, millions of low-wage workers are still facing an impossible choice: their lives or their livelihood. But it need not be this way. And as businesses reopen, workers such as Lambert need more say in how... “Economic issues are life-and-death issues,” says Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School. “What COVID has done is illustrate the life-or-death nature of those economic issues in a very accelerated time frame.” ...Workers have a voice, and the government needs to let them use it, giving employees such as Lambert more of a say in creating and maintaining a safe workplace. Clean Slate for Worker Power, an advocacy group led by Block and Benjamin Sachs of Harvard Law School, is pushing for new rules to require open businesses to have a worker-elected “safety steward,” who would make sure a given workplace is complying with local and federal laws. They also propose that the government set up commissions to negotiate workplace-safety standards, business sector by business sector rather than one burger joint or nursing home at a time, and to help workers organize online. Because demanding safe conditions should not be a firing offense, the government could also pass just-cause dismissal statutes to protect workers from retaliation by their employers.

As the economy reopens after the COVID-19 shutdowns, businesses are taking a varied, often patchwork approach to ensuring health and safety for their workers, and much uncertainty persists regarding employers’ obligations and employees’ rights. The Gazette spoke with labor law experts Sharon Block, executive director of the Labor and Worklife Program, and Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at Harvard Law School (HLS), about how the pandemic has turned a spotlight on the lack of clear workplace protections in general, and in particular for women and people of color, who were disproportionately represented among those deemed essential. Block and Sachs recently co-authored a report urging that U.S. labor law be rebuilt from the ground up. On June 24, they will release the report “Worker Power and Voice in the Pandemic Response.”

As the deaths of unarmed Black people such as George Floyd, Breonna Taylor and Rayshard Brooks have reignited the national debate on excessive force and police accountability, activists have called for an end to qualified immunity, a legal doctrine that protects law-enforcement officers and other government officials from lawsuits over their conduct. The Supreme Court this month declined to hear a handful of cases related to qualified immunity, putting the ball squarely in Congress’s court...Amir Ali, the director of the MacArthur Justice Center’s Washington, D.C. office and a Harvard Law School lecturer, sees it this way: “Qualified immunity is basically a rule that police officers, correctional officials and other public officials are above the law and above the Constitution,” he told MarketWatch. “It says that even when a police officer engages in gross misconduct, whether it be police brutality or murder as we’ve seen time and time again in video after video, that they’re granted immunity from any suits trying to hold them accountable for their conduct.” ... “Whether you subscribe to a world of bad apples or you think the whole tree is rotten, we’re already talking about somebody who is a bad enough apple that they’ve done something that no reasonable officer in the circumstance would have done,” Ali said. “But qualified immunity says even that person is going to walk away with impunity — if the victim isn’t able to find a case out there that happens to look pretty much exactly like this case.”

For too long, Black History has been an afterthought in mainstream education, granted only a glimmer of sunlight during February, Black History Month. That is because white America collectively is comfortable only with the fraction of history where it can claim some level of partnership, such as the nonviolent, multiracial struggle for civil rights. Not in the national narrative is the unbroken chain of systemic racism in slavery, legally enforced segregation and today’s disparities. Not in the narrative are the centuries of white violence used to maintain white privilege. For instance, most Americans remain unaware of white mob attacks that helped end Reconstruction, the 1919 Red Summer of whites killing Black people from Chicago to Arkansas, the 1921 massacre of Black people in Tulsa, Oklahoma, and white attacks on African Americans and Latinos in the 1940s. It’s time to change that with the George Floyd Education Act, which David Cavell intends to introduce on his first day in the U.S. House if elected from the Massachusetts Fourth District this fall...The George Floyd Education Act will create a national commission to develop a curriculum and recommend how to implement it. We will bring together leading educators, historians, students, teacher organizations, and leaders in the Black Lives Matter movement, NAACP, Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, Smithsonian National Museum of African American History and Culture, the Obama Foundation and others.

In the wake of George Floyd’s killing by now-former Minneapolis Police Department (MPD) officer Derek Chauvin, few have been inclined to defend Chauvin or his colleagues who stood by and watched as he suffocated Floyd to death. Few, that is, except Bob Kroll...Kroll’s statements illustrate a central challenge in American efforts to transform policing: Police unions, the groups that represent police officers, are a powerful force that stands in the way of holding police accountable...Some veteran labor lawyers and academic labor activists are also opening up to the idea of sharply limiting police union power, recognizing this as an unusual case. A group of faculty at Cornell’s Industrial and Labor Relations school — Ifeoma Ajunwa, Virginia Doellgast, Shannon Gleeson, Kate Griffith, and Verónica Martínez-Matsuda — argued in a public statement that the labor movement “must also acknowledge that contemporary police unions have contributed to racism.” Benjamin Sachs, the Kestenbaum professor of labor and industry at Harvard Law School and a leading voice in labor law debates, published a blog post suggesting openness to limiting what issues police unions can legally bargain over, perhaps excluding from bargaining matters like discipline for police who beat or kill civilians. “The consequence of police abusing [collective bargaining] power is that people end up dead,” Sharon Block, executive director of the Labor and Worklife Program at Harvard Law and a member of the National Labor Relations Board under President Obama, told me. “That is happening at a significant rate and that’s just a completely different context from the rest of the public sector” or unionism generally.

Today on “Food Talk with Dani Nierenberg,” Dani is joined by Emily Broad Leib, the director of the Harvard Food Law and Policy Clinic, and Doug O’Brien, the vice president for network programs at the Global FoodBanking Network. Together, they talk about the new Global Food Donation Policy Atlas, an interactive guide that maps food donation laws and recommends ways to further reduce food waste. Data for five countries—Argentina, Canada, India, Mexico, and the United States—was released this month, and the atlas will eventually cover 15 nations. Then, chef Pierre Thiam talks with Dani about the potential for the ancient African grain fonio to impact the lives of farmers in West Africa. He is the co-founder of Yolélé Foods, a company that imports fonio to the U.S. from countries like Thiam’s native Senegal, and helps support the smallholder farmers who grow it. Thiam says fonio can help address malnutrition, food and economic insecurity, and even climate change.

Institutional racism in the United States contributes to the disproportional impact that the coronavirus pandemic has had on the Black community, the nation's top infectious disease expert, Dr. Anthony Fauci, said on Tuesday. When asked about the racial disparities emerging amid the pandemic during the House Energy and Commerce Committee hearing on the "Oversight of the Trump Administration's Response to the Covid-19 Pandemic," Fauci responded that the Black community has been facing a "double whammy." Fauci noted that some Black adults may not be able to social distance if they are essential workers, and there is a disproportionate prevalence of underlying conditions within the Black community, such as high blood pressure, diabetes, obesity, chronic lung disease and kidney disease...The coronavirus pandemic has made it more clear than ever before that the United States needs to invest in communities -- especially in ways that could reduce health disparities, one expert on racial justice said last week. "I think we need to think about devoting more resources to addressing the issues that create the disparities and prevalence in susceptibility to coronavirus," David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said on a Facebook Live discussion. "It's the way in which the institutional racism, for lack of a better word, seeps down into some very, very specific and particular differences in treatment," he said.Addressing racism and Covid-19 in a talk about inequities and policing on Thursday, Harris highlighted issues that have put Black communities at a disadvantage as the pandemic has gone on.

The Supreme Court’s decision not to review a major Ninth Circuit ruling that went against tech companies gave the Treasury Department a win, and could offer the department some hope as it faces increasing scrutiny of its tax regulations. The circuit court’s decision in Altera v. Comm’r upheld regulations that Apple, Google, and Facebook claimed would cost U.S. companies billions of dollars. That high-stakes win for Treasury demonstrates a potential limit to lawsuits alleging that the department didn’t follow proper procedures when issuing regulations. Experts still caution, though, that Treasury should be careful at a time when it faces increasing oversight...Stephen Shay, a senior lecturer at Harvard Law School and former Treasury official, cautioned, however, not to read too much into Treasury’s win. He pointed to Altera as well as a decision dealing with Treasury regulations from the 1960s in SIH Partners, LLLP v. Comm’r, as demonstrating that Treasury can win against challenges to regulations that were issued before the more modern understanding of how the APA applies. “But I’d be leery—I think agencies should be careful in what they would say is irrelevant,” he said. “One of the things that’s induced by this whole emergence, or reenforcement, of the Administrative Procedure Act process is that you’re better off at least touching most comments unless you’re very clear they’re off the wall.”

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.”