Media Mentions

"Bloomberg: Balance of Power" focuses on the intersection of politics and global business. A preview of night 3 of the Democratic National Convention, as vice presidential nominee Kamala Harris takes the stage. Guests: Rep. Joyce Beatty, National Urban League CEO Marc Morial, Harvard Law Professor Cass Sunstein, Pattern Energy CEO Mike Garland.

Some Connecticut school districts across the state are getting ready to reopen their doors, but with coronavirus cases rising across the country, more parents are considering keeping children at home, Online learning continues to come with a lot of roadblocks and technical issues for parents, students and teachers. So what is the alternative? How can students get a quality education while still staying safe? ... Guests: ... Elizabeth Bartholet - Morris Wasserstein Professor of Law and Faculty Director, Child Advocacy Program at Harvard Law

An op-ed by Cass Sunstein: In the near future, Congress should create a Commission on Electoral Integrity, with only one task: protecting the U.S. from foreign interference in its elections. That is the unmistakable lesson of Volume 5 of the Senate’s Select Committee on Intelligence report on “Russian Active Measures Campaigns and Interference in the 2016 Election.” Put to one side your own political convictions. Don’t ask whether members of Donald Trump’s campaign worked in concert with Russian officials to turn the election to him.

The one certainty about the Business Roundtable’s “Statement on the Purpose of a Corporation” is that it has elevated that topic to a new height in global policy debates. A year after the BRT announced its new view of purpose on Fortune’s cover, “stakeholder capitalism”—what it means, and what, if anything, should be done to advance it—is a hot issue, sparking hotly opposed views. As the U.S. election approaches, it will only get hotter. The BRT’s statement was prompted by JPMorgan Chase CEO Jamie Dimon, who was then the BRT’s chairman, and was signed by 184 CEOs of major U.S. corporations... “The statement is largely a rhetorical public relations move rather than the harbinger of meaningful change,” say Lucian Bebchuk and Roberto Tallarita of the Harvard Law School in a 65-page article, “The Illusory Promise of Stakeholder Governance.” They argue that the incentives CEOs face have not changed, so their behavior won’t change. The authors also examine corporate behavior when state laws have permitted companies to protect stakeholders other than shareholders; they say they found no evidence that companies do so any more often than when they are not permitted to do so...Bebchuk and Tallarita argue more bluntly that CEOs and directors are seeking more power for themselves. “The support of corporate leaders and their advisers for stakeholderism is motivated, at least in part, by a desire to obtain insulation from hedge fund activists and institutional investors,” the authors say. “In other words, they seek to advance managerialism”—a system in which managers exercise the most power—“by putting it in stakeholderism clothing.” The BRT explicitly denies that its members want to avoid accountability.

Wednesday marks the first anniversary of the Business Roundtable’s vocal renunciation of “shareholder primacy” in a statement that claimed to “redefine the purpose of a corporation.” Like most efforts at “corporate social responsibility,” the initiative has proved long on public relations, short on action, and lacking in effect. Among the 181 CEOs who signed, Harvard Law School’s Lucian Bebchuk and Roberto Tallarita have found only one whose board of directors gave approval. On the organization’s own website, the most recent “Principles of Corporate Governance” still dates from 2016. The Business Roundtable’s CEO members sought to ensure the public that they could be trusted as benevolent leaders of the economy, but instead they have demonstrated precisely the opposite — that multinational corporations are incapable of fulfilling obligations voluntarily to anyone besides shareholders, and external constraints are needed. In fairness, the market’s competitive pressures discourage any one firm from hampering short-term profitability for the sake of corporate actual responsibility. But that is precisely where an institution like the Business Roundtable could play a valuable role, were it genuinely committed to addressing interests beyond those of the shareholders who control the firms themselves.

An article by William McConnell '22: Florida is one of the epicenters of the climate crisis already raging in the United States and, unless Florida voters do something about it, the situation will only get worse. Climate change is making hurricanes stronger. Although Palm Beach County dodged Hurricane Isaias, more hurricanes will follow, and we will not always be lucky. With stronger hurricanes and storms, flooding is now commonplace and will become even more destructive in the coming years. Soon, Florida could experience as many as 105 days with a heat index over 100 degrees. These heat waves will kill — yes, kill — seniors and destroy agriculture. And, as climate change ravages Central American and Caribbean countries, Florida will become the destination for thousands of climate refugees. These are not the predictions of alarmists. This is the consensus of scientists, the U.S. military, Florida state and federal officials, and the same companies that are at the center of America’s carbon footprint. It is clear that one presidential campaign is serious about stopping the climate crisis and the other is not. President Trump, whose campaign is funded by fossil fuel money, neither understands nor cares about the risk to Florida’s seniors and younger generations. His administration has ignored investment in clean infrastructure and disintegrated America’s global leadership in addressing the crisis. The U.S. once pressured China, India and other polluting countries to reduce their carbon emissions, but now we are silent, floundering in the backwash, as other countries shape the new green economy. But President Trump’s mistakes do not have to be our own.

Postmaster General Louis DeJoy, facing intense backlash over cost-cutting moves that Democrats, state attorneys general and civil rights groups warn could jeopardize mail-in voting, said on Tuesday that the Postal Service would suspend those operational changes until after the 2020 election. The measures, which included eliminating overtime for mail carriers, reducing post office hours and removing postal boxes, have been faulted for slowing mail delivery and criticized as an attempt to disenfranchise voters seeking to vote safely during the coronavirus pandemic. Mr. DeJoy, a major donor to President Trump who was tapped in May to run the Postal Service...said retail hours at the post office would not change, no mail processing facilities would be closed, and overtime would continue to be approved “as needed.” It was unclear, however, whether the agency would reverse measures already put in place across the country that union officials and workers say have inflicted deep damage to the Postal Service. That includes the removal of hundreds of mail-sorting machines, according to a June 17 letter sent from the Postal Service to the American Postal Workers Union. Some of those machines have already been destroyed, union officials and workers said. The announcement came as lawmakers summoned Mr. DeJoy to testify before the House and the Senate in the coming days and as two coalitions of at least 20 state attorneys general said they would file lawsuits against the Trump administration over the postal changes...The states plan to pursue their lawsuit despite Mr. DeJoy’s announcement on Tuesday. James E. Tierney, a former attorney general of Maine and a professor at Harvard Law School, said the lawsuit provided assurance to the attorneys general that the postmaster general would follow through on his promise. “The attorneys general don’t trust the word of the Postal Service,” Mr. Tierney said. “They feel more comfortable having this done in open court.”

How important is it to wear a mask at work? According to the French government, it’s very important indeed. People working in French offices and factories will, from September 1, be obliged to wear masks in all shared and enclosed spaces—unless they’re working alone. Unions had been pushing for the move, due to fears about worker safety. The timing is intended to help France keep its economy open while dealing with the September reopening of schools and the return of thousands of people who have been vacationing in other countries. Plenty of European countries now mandate masks on public transport and in shops, but it is still rare to see governments making them compulsory at work. The U.K., for one, does not seem set to follow in France’s footsteps. Health Secretary Matt Hancock said today that evidence shows most infections take place in the home, so “we are not currently considering” a workplace mask mandate...Particularly where workers are in direct contact with the public, they could start by listening to Harvard Law School’s Sharon Block and the Ford Foundation’s Rachel Korberg, who have written a wise piece for Fortune that advocates for frontline workers to be given a voice in the reopening of the economy. “Workers have a key role to play in designing and implementing new, on-the-job health practices—and even more so in the absence of enforceable federal standards,” they write. “If they aren’t able to speak up when they spot a problem, we risk prolonging this crisis, deepening the economic pain, and ultimately losing more lives.”

Think of your opening statement like it’s a movie trailer. That was the suggestion of St. Louis, Missouri Circuit Court Judge Michael Noble during a webinar focusing on openings presented jointly by the National Institute for Trial Advocacy and the Courtroom View Network Tuesday...The hour-and-a-half presentation paired archival video footage of actual openings from civil jury trials with a panel discussion between Noble, retired Boston U.S. District Judge Nancy Gertner, and Philip Freidin of Miami’s Freidin Brown moderated by Reuben Guttman of Guttman, Buschner + Brooks in Washington, D.C...While Gertner said that as a practicing lawyer, she often employed standard openings similar to Lanier’s as a way of calming herself down, neither of the Texans’ approaches would have worked in her New England courtroom. “You have to know where you are. You have to know who you are,” she said. “As a young woman lawyer, I knew I couldn’t cozy up to the jury and say ‘in my experience,’ because I had none.” ...For her part, Gertner said that she thinks lawyers should argue their cases from the beginning, but do it with the evidence. The phrase “the evidence will show” she and the other panelists agreed, can help lawyers avoid the trap of a mid-opening objection. Getting a case down to its “gist” and to its “core,” she said, involves picking the evidence that’s most favorable to your side. “That kind of selection is inevitably argument,” she said.

The National Conference of Bar Examiners has a remote proctoring requirement for states using its testing materials in October online bar exams. However, according to one of three bar exam software providers that recently pulled out of the online exam, the mandate may not be possible to carry out. Greg Sarab, the founder and chief executive officer of Extegrity, says his primary concerns about a bar exam with remote proctoring include reliable internet connections being required for live remote proctored exams, and that the requirement of simultaneous start times comes with significant technological and procedural burdens. He also says there hasn’t been sufficient development time or product testing for the technology...Bruce Schneier, a security technologist who is a fellow at Harvard University’s Berkman Klein Center for Internet and Society, says building technology for government entities is often difficult. Also, he thinks that when people discuss policy in technology, they frequently talk at each other rather than engaging in active listening to find the best solutions. “It’s not a matter of just plugging in the system and saying, ‘Go.’ It’s hard, and it needs to be thought about. To the extent it hasn’t been thought out, that’s kind of a recipe for disaster,” says Schneier. Many universities now use online proctoring for tests, but Schneier says the systems are “kind of mediocre at everything.” He’s not sure the offerings will improve much and wonders if jurisdictions may want to consider moving away from proctored remote bar exams during the pandemic, and instead, replace them with take-home tests. “How do we define success? If it’s online proctoring and cheating, and I don’t detect you cheating, it’s a success, right? This is hard,” Schneier says.

An article by Noah Feldman: President Donald Trump is pressuring Attorney General William Barr to announce the results of the ongoing Russia probe, which would violate Department of Justice guidelines designed to prevent the department from influencing elections. Of course, influencing the election is exactly what Trump wants Barr to do. Trump is once again using the unique power of the presidency to gain an unfair advantage in the 2020 election. The pattern is by now eerily familiar. It’s the same impulse manifest in Trump’s undermining of the U.S. Postal Service at just the moment it faces the responsibility of handling a surge of mail-in ballots. And it’s identical to the conduct for which Trump was impeached by the House of Representatives. Although it may seem like eons ago, it was only last December that Trump was impeached for abusing the power of the presidency to distort the 2020 election by harming the candidacy of Joe Biden. That was, the House determined, the purpose of Trump’s call to Ukrainian president Volodymyr Zelenskiy. And in Trump’s Senate trial, which ended with Republicans declining to remove him from office, the president’s supporters all but admitted to the pattern. As you’ll remember, their main defense was not that the president hadn’t used his office to try to gain an advantage, but that even if he had, the abuse of power didn’t count as an impeachable offense. The latest Barr affair is about as explicit an abuse of presidential power as you can imagine. Long-standing Department of Justice guidelines issued under the authority of the attorney general say explicitly that “politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.” The guidelines are implemented via a norm that the department should not make disclosures about politically sensitive investigations in the 60 days before an election.

A podcast by Noah Feldman: Dr. Sean O'Leary, a professor of pediatric infectious diseases at the University of Colorado and the vice chair of the American Academy of Pediatrics’ Committee on Infectious Diseases, discusses what factors school officials should consider when deciding whether or not to reopen schools for in-person learning.

The Radcliffe Institute’s Long 19th Amendment Project reframes the celebration by focusing on the women who would not be fully enfranchised for decades more.

An article by Sharon Block and Rachel Korberg: As the U.S. reopens despite the coronavirus continuing to ravage the country, workers across industries—from agriculture to airport security and meat processing—are getting sick. A century ago it was very common for people in the U.S. to fall ill or even die on the job. We are at risk of returning to a horrifying reality where earning a paycheck again means risking your life.  The Occupational Safety and Health Administration (OSHA), the federal government agency charged with enforcing workplace health and safety, has been missing in action during this pandemic. So what can a responsible company do to operate successfully without becoming a hotbed for COVID-19 transmission? Requiring face coverings, implementing thorough sanitation practices, and providing paid leave for all are critical, but businesses should be careful not to ignore a too-often missing element: the voices of their workers themselves. Workers have a key role to play in designing and implementing new, on-the-job health practices—and even more so in the absence of enforceable federal standards. If they aren’t able to speak up when they spot a problem, we risk prolonging this crisis, deepening the economic pain, and ultimately losing more lives. MIT research has shown that companies with empowered frontline staff who have trusting, collaborative relationships with management are better at quickly identifying challenges and developing and implementing new solutions. This makes intuitive sense—workers know better than anyone how to do their jobs best, what risks they face, and how to solve problems in the workplace.

As the coronavirus pandemic continues to wreak havoc worldwide, another looming threat remains on the back burner: the global climate crisis. Climate change has been a hot topic and polarizing issue for decades, with debates over its validity and level of seriousness more political than scientific. But the science is clear: Earth is getting hotter and its inhabitants are largely to blame. The warmer world is already provoking an increased number of extreme weather events, causing negative health impacts and obligating people to flee their homes. Experts say failure to take considerable action will have devastating consequences. What evidence do we have that the world is changing for the worse? What effects are we seeing now in 2020 and what more is predicted? Who and what are the biggest contributors? What is the status of environmental regulations and policies? What more has been proposed? Is there time to reverse concerning trends? What would be the biggest challenges? What’s at risk if we don’t? Guests: Jody Freeman, professor of law and founding director of the Environmental and Energy Law Program at Harvard University; Abrahm Lustgarten, senior environmental reporter for ProPublica; Jason Smerdon, research professor, co-director of the sustainable development undergraduate program and faculty member of the Earth Institute at Columbia University.

An article by Sean Quirk '21: On July 13, the United States hardened its position against the People’s Republic of China (PRC) on the South China Sea. A statement from U.S. Secretary of State Mike Pompeo declared that “Beijing’s claims to offshore resources across most of the South China Sea” and “its campaign of bullying” are “completely unlawful.” Since the July 12, 2016, arbitral tribunal ruling in Philippines v. China (South China Sea Arbitration), the United States has insisted that the decision is “final and legally binding” on both parties. The tribunal rejected China’s claims to “historic rights” and its “nine-dash line” in the South China Sea. In calling for all sides to abide by the tribunal decision, Washington—along with dozens of other countries—had thus aligned itself in support of international law and against China’s claims that fell outside the U.N. Convention on the Law of the Sea (UNCLOS). But Pompeo’s announcement stresses U.S. support not only for the tribunal’s jurisdiction over the disputes but also for the merits of the tribunal’s findings. His statement asserts that China “has no legal grounds” to continue claiming maritime dominion throughout the nine-dash line. The statement’s strong rhetoric lambasts Chinese behavior since the 2016 ruling, saying: “The world will not allow Beijing to treat the South China Sea as its maritime empire.” Moreover, the statement paints the United States as the defender of Southeast Asian countries facing a China that is attempting to “bully them out of offshore resources, assert unilateral dominion, and replace international law with ‘might makes right.’”

Twenty years ago this fall, the United States was plunged into 36 days of turmoil as lawyers, judges, political operatives, and election workers grappled with the uncertain result of the presidential contest in Florida. Whoever won the state would win the presidency. In the end, after start-and-stop recounts and the intervention of courts at every level, Texas Governor George W. Bush, the Republican candidate, was declared the victor, edging out Vice President Al Gore, the Democrat. The story of the 2000 Florida recount offers a reminder of just how chaotic the electoral process can become—and of how disarray in a single state can undermine faith in the democratic process nationwide...The account here, drawn from interviews with more than 40 people with firsthand experience of the Florida-recount saga, is both a history and a warning...On Friday, November 24, the U.S. Supreme Court agreed to review the Florida Supreme Court’s ruling in favor of Gore. Two days later, on Sunday night, Katherine Harris certified the vote tally in Florida, and Bush’s lead stood at 537 votes. Some recount results were excluded—the results from Palm Beach County had arrived two hours late. Miami-Dade had stopped its recount. Laurence Tribe (Gore lawyer): Ron Klain called, and he said, “We really need help. It looks like there is an issue about federal-court intervention with the electoral recount, and we need you to fly down to Florida immediately.” The question of whether, as a matter of federalism, this is an appropriate intervention was very much up in the air. The next morning, I appeared in federal court, and I remember arguing that it was inappropriate for a federal court to intervene at this point. If there were any constitutional issues about the recount, they could be properly handled at the state level and in the state court.

When Shawn McClinton was released from jail in July, according to police, the twice-convicted rapist didn’t waste much time before he struck again. Awaiting trial on another assault charge, McClinton allegedly raped a woman at knifepoint in Dorchester. The attack came just a couple of weeks after a local nonprofit called the Massachusetts Bail Fund posted his bail, enabling him to leave jail after spending two years in detention without a trial. The law enforcement establishment didn’t waste any time, either: Attorney General Maura Healey called the fund’s decision to post the $15,000 bail “dangerous and irresponsible.” Police Commissioner William Gross called the bail fund a “detriment to society.” Even Suffolk County District Attorney Rachael Rollins, roundly considered a progressive prosecutor, criticized the organization, whose stated mission is to post bail for low-income defendants so they can await trial from home just as wealthier defendants do...According to the Suffolk County DA’s office, a dangerousness hearing was not held in McClinton’s case even though experts say his criminal track record makes him exactly the kind of defendant these hearings are designed for. “This is a prosecutor problem, not a judge problem or a bail-fund problem,” says Nancy Gertner, a former federal judge and Harvard Law professor. “The person who dropped the ball is the prosecutor who didn’t say ‘this guy is dangerous’” and request the hearing...Both Gertner and the Massachusetts Bail Fund, for its part, believe the narrative that the public is being fed about McClinton’s case is an attempt to maintain the status quo in law enforcement precisely at a moment of unprecedented mobilization demanding police and criminal justice reform. “The outrage and shock from stakeholders are disingenuous,” bail-fund board member Jessica Thrall says. “All of them know exactly how bail works.”

An article by I. Bennett Capers, John C.P. Goldberg and Benjamin C. Zipursky: Police officers enjoy almost complete immunity from civil suits in federal court. They can shoot someone, taser someone, choke someone, or press their knee into someone’s neck until they can’t breathe. They can brutalize peaceful protesters. And yet, in large part because of the court-made rule of qualified immunity, officers rarely face liability. The calls for ending qualified immunity have not gone unheard. The House of Representatives passed a bill that would eliminate it and enable victims to obtain remedies for violations of their civil rights. But Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate have balked at this change, as has President Trump. Likewise, the Supreme Court recently declined to revisit the subject. The good news is that changing federal law is not the only way to erase the grave accountability deficit for unlawful police violence. There’s an alternative hiding in plain sight: state law. While no state can change federal law, each state has the authority to change its own rules. State tort law has long empowered individuals who have been choked, shot or maimed to sue the person who victimized them. And, while the states have their own sorry track record when it comes to police accountability, it is the prerogative of state lawmakers — not the federal government — to change rules of state law that stand in the way of imposing legal responsibility for police violence. There are already some hints of progress at the state level.

The opening words of Noah Feldman’s latest book, The Arab Winter, are in Arabic: Al-sha‘b Yurid Isqat al-nizam! The people Want The overthrow of the regime! As he explains in his first sentence, “These words, chanted rhythmically all over the Arab-speaking world beginning in January 2011, promised a transformation in the history of the Middle East.” In English, “the people” are plural and take plural verbs: “We the People of the United States,” begins the preamble to America’s fundamental law, “do ordain and establish this Constitution for the United States of America.” In modern Arabic, Feldman goes on, “the people”—sha‘b—is singular and “the collective noun takes the singular verb.” “If it did not sound awkward in English,” he writes, “I would translate it as ‘the people wants.’” From a verse of the Qur’an in which “peoples”—shu‘ub—is plural, the noun morphed to the singular as a result of the movement for Arab nationalism of the late-nineteenth and early-twentieth centuries. The movement, social as well as intellectual, envisioned a single nation of all speakers of Arabic spanning the Mediterranean Sea—3,000 miles “from Morocco in the west to Iraq in the east.” The Arab Winter is about the consequences of the Arab Spring. The series of populist surges between the Decembers of 2010 and 2012, in 10 to 20 countries (depending on how you count), promised to end dictatorship and bring self-government to countries in Northern Africa and the Middle East. But other than in Tunisia, which toppled its repressive dictator and embraced constitutional democracy, the uprising led to civil war, rampant terrorism, or redoubled dictatorship—or to all of them combined. Despite the collapse of the movement, Feldman argues that it should not be judged a failure.

In the United States, “The primary way we define ‘food safety’ is, ‘If I eat this product today, will I be in the hospital in 24 to 72 hours?’” says clinical professor of law Emily Broad Leib. “But this doesn’t account for other ways that the food system produces health risks for members of the public,” including the lifelong risks of, say, developing type 2 diabetes after consuming sugary foods for decades, or the environmental effects of industrial farming, such as fertilizer runoff in waterways, which creates oxygen-free dead zones inhospitable to aquatic life. The single-minded emphasis on microbes like salmonella and E. coli, Broad Leib asserts, “means we’re under-regulating a bunch of other risks that have bigger health impacts.” As director of Harvard Law School’s Food Law and Policy Clinic, she engages law students in projects that investigate how U.S. law intersects with the broader food system, “from the first seed going into the ground, to someone’s plate or perhaps to a trashcan.” Her purview encompasses environmental impacts, worker safety, and even immigration as factors in food production. This holistic, systems approach is a relatively new way to consider food law; when Broad Leib first made the case to law-school colleagues about her work, many misunderstood, thinking she was narrowly focused on foodborne illness or the work of the Food and Drug Administration (FDA). But Broad Leib says that in reality, a food-systems approach is “breathtakingly broad” in its scope. She sees this as a necessity. “This is the way we have to look at these issues,” she says, “or we’re going to continue to make really short-sighted, less equitable, less utilitarian policies.”