Media Mentions

President Trump sees federal environmental regulation as “big government at its absolute worst.” Jody Freeman, Director of the Harvard Law School Environmental and Energy Law Program, joins Ali Velshi to discuss what’s at stake now that President Trump has proposed a complete overhaul of the National Environmental Policy Act.

Last October, Attorney General William Barr appeared at Notre Dame Law School to make a case for ideological warfare. Before an assembly of students and faculty, Barr claimed that the “organized destruction” of religion was under way in the United States. “Secularists, and their allies among the ‘progressives,’ have marshalled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values,” he said. ... Laurence Tribe, a professor of constitutional law at Harvard, warned that Barr’s and Trump’s efforts could permanently alter the balance of power among the branches of American government. “If those views take hold, we will have lost what was won in the Revolution—we will have a Chief Executive who is more powerful than the king,” Tribe said. “That will be a disaster for the survival of the Republic.” ... But his ideology has not changed much, according to friends and former colleagues. “I don’t know why anyone is surprised by his views,” Jack Goldsmith, a law professor who headed the Justice Department’s Office of Legal Counsel during the George W. Bush Administration, told me. “He has always had a broad view of executive power.”

Malvern, Pennsylvania is the quintessential small-town America: verdant, quiet and lined with 19th-century streetlamps. But just outside the town lies the sprawling campus of Vanguard, a $6tn asset manager that is reshaping the sleepy town and the surrounding area. ... Yet concerns of increasingly concentrated corporate power are unlikely to go away. John Coates, a professor at Harvard Law School, points out that despite being a Vanguard fan there is a “governance risk” inherent in one company that may eventually control a big chunk of every major US company. “Then they become the focal point for everyone that is unhappy about how any of these companies are run. There’s a real political risk there,” he says. “It’s a dilemma: What do you do with immense success?”

Ex-Nissan CEO Carlos Ghosn excoriated the Japanese legal system this week during a two-hour press conference defending his decision to flee the country as he awaited trial for financial crimes tied to the Japanese automaker. “I did not escape justice. I fled injustice and persecution, political persecution,” Ghosn said at a press conference in Beirut, Lebanon on Wednesday. “You're going to die in Japan or you've got to get out.” ... “Pretty much everybody prosecuted gets convicted,” says J. Mark Ramseyer, a professor of Japanese legal studies at Harvard Law School and a noted authority on Japanese law. Still, he noted, “The Japanese system, it’s basically a fair one.”

On this edition of Your Call’s One Planet Series, we’ll discuss Trump administration’s efforts to weaken or dismantle environmental regulations that are meant to protect the environment, public health and curb greenhouse gases. According to Harvard Law School's rollback tracker, the administration has targeted at least 90 environmental rules, including endangered species protections Act, methane emissions, coal plants, cars, light bulbs, public lands and oil and gas drilling. Guests: Caitlin McCoy, Climate, Clean Air, & Energy Fellow for the Environmental & Energy Law Program at Harvard University

Fairfield High School alumna Boanne Wassink ['20] is a student at Harvard Law School, where she is a member of a new group dedicated to litigating for animal welfare. In fact, Wassink helped prepare a complaint in recent litigation about primates used in research. Wassink said it was a great experience, and she hopes to work as a litigator on behalf of animals after she graduates from Harvard.

An op-ed by Alister Martin and Cass R. Sunstein: What if long emergency room wait times, an unfortunate fact of life, could also be a key to increasing voter participation among traditionally underrepresented groups in our electorate? The demographic overlap between those who most use the ER for their health care and those who don’t vote presents a potential opportunity. In 2014, a US Census Bureau report found that nearly 1 in 4 Americans were not registered to vote. That’s over 51 million potential voting-age adults, or more than the entire population of Spain, who were not registered to vote in the United States.

Op-ed by Ashley Nunes, a research fellow at Harvard Law School:  Crash investigations are a complex affair. When a plane goes down, investigators normally spring into action. Some of these individuals work for the company that built the jet, some for the country where the jet was registered and others for the airline itself. All, however, are looking for clues about what caused the crash and what must be done to prevent another one. They do this with rigour and with attention to detail, because what we can learn from an aviation disaster should make the skies safer. That, however, is not what will happen with the tragic plane crash on Wednesday that killed 176 people, including 63 Canadians.

The Trump administration heralded its latest environmental rollback as an end to drawn-out legal brawls challenging high-profile energy and infrastructure projects. But experts say the legal implications of planned changes to rules surrounding the National Environmental Policy Act would be much less dramatic...Even if the Trump administration's changes usher in a higher threshold for NEPA-based challenges, the proposed regulations wouldn't affect current litigation, said Caitlin McCoy, a climate, clean air and energy fellow with Harvard University's Environmental & Energy Law Program. "Even once finalized, the regulations will not apply retroactively to lower the bar for NEPA analyses that were performed before it was final," she said.

Used to be that the promise of earning a sterling line on a resume and connections to stars of the legal profession was enough to lure Harvard law students to federal clerkships...The expectation is that judges and their clerks will act and make decisions based on the law, not in the interest of ideology or political party, said Charles Fried, a Harvard constitutional law professor and former solicitor general in the Reagan administration. “If the only people who will clerk for a Trump-nominated judge are the people who voted for Trump, it will drive things to further extremes,” Fried said. “It’s odd and self-defeating.” Judges without strong experience who may be too ideologically driven need smart law clerks who will offer different perspectives, he said...“We work to share available clerkship opportunities with our students, confident they will apply for the ones that best suit their interests and needs,” said Mark Weber, assistant dean for career services at Harvard Law School in a statement. “We understand that different judges appeal to different applicants for different reasons.”...Nancy Gertner, a retired Massachusetts federal judge who teaches at Harvard, said neither the president nor students should have narrow slates of judges that they are willing to consider. “You can’t be in a position to say there has to be an orthodoxy to become a judge or work for a judge,” Gertner said.

The potential impact of common ownership reaches beyond antitrust matters to questions about how companies are run. Index fund managers may follow passive investment strategies, but they don’t blindly choose stocks and sit back, says John Coates, a Harvard law professor. Fund companies have multiple tools to influence corporate behavior, such as developing preferred policies on executive compensation, carbon footprints, gender diversity, and other governance matters. They often do this in coordination with other industry leaders, Coates says. “A small number of unelected agents, operating largely behind closed doors, are increasingly important to the lives of millions who barely know of the existence much less the identity or inclinations of those agents,” Coates wrote in a widely cited 2018 paper. The agents, in this case, are the managers of fund companies—and the most important of those are the index giants...Lucian Bebchuk, a Harvard law professor, says index fund managers don’t have incentives to invest the time into actively supervising companies. That’s because any effort to increase the value of a company would also increase the value of the index, which in turn benefits every fund that tracks the index. As a result, the fund that pushes management can’t stand out from its peers and attract more money—yet it incurs higher stewardship costs. The concern is that such deference will “result in insufficient checks on corporate managers,” Bebchuk says. In a 2019 paper, he writes that the Big Three spent minuscule amounts on stewardship. According to Morningstar, Vanguard employed 21 people to do the work of corporate oversight at a cost, by Bebchuk’s estimate, of about $6.3 million—a drop in the bucket considering Vanguard’s trillions of dollars under management.

An article by Lawrence Lessig: Before the Senate begins its trial to determine whether the president should be convicted of the charges for which he has been impeached, the jury — the members of the Senate — must be sworn to service. The oath is mandated by the Constitution; its language, set by Senate rules, requires each senator to swear to “do impartial justice according to the Constitution and laws.” To swear a false oath is perjury — the crime President Bill Clinton was charged with in his impeachment. Yet given the Constitution’s speech or debate clause, a senator likely could not be charged with perjury for swearing falsely on the Senate floor. Instead, it is the Senate itself that must police members’ oaths — as it has in the past.

An article by Ashley Nunes: Crash investigations are a complex affair. When a plane goes down, investigators normally spring into action. Some of these individuals work for the company that built the jet, some for the country where the jet was registered and others for the airline itself. All, however, are looking for clues about what caused the crash and what must be done to prevent another one. They do this with rigour and with attention to detail, because what we can learn from an aviation disaster should make the skies safer. That, however, is not what will happen with the tragic plane crash on Wednesday that killed 176 people, including 63 Canadians. The jet – operated by Ukraine International Airlines – had left Tehran for what should have been a four-hour flight to Kyiv. It ended up only taking a few minutes. Air traffic controllers lost contact with the jet shortly after takeoff, and the plane’s wreckage was later found on the outskirts of Tehran.

The potential impact of common ownership reaches beyond antitrust matters to questions about how companies are run. Index fund managers may follow passive investment strategies, but they don’t blindly choose stocks and sit back, says John Coates, a Harvard law professor. Fund companies have multiple tools to influence corporate behavior, such as developing preferred policies on executive compensation, carbon footprints, gender diversity, and other governance matters. They often do this in coordination with other industry leaders, Coates says. “A small number of unelected agents, operating largely behind closed doors, are increasingly important to the lives of millions who barely know of the existence much less the identity or inclinations of those agents,” Coates wrote in a widely cited 2018 paper. The agents, in this case, are the managers of fund companies—and the most important of those are the index giants...Lucian Bebchuk, a Harvard law professor, says index fund managers don’t have incentives to invest the time into actively supervising companies. That’s because any effort to increase the value of a company would also increase the value of the index, which in turn benefits every fund that tracks the index. As a result, the fund that pushes management can’t stand out from its peers and attract more money—yet it incurs higher stewardship costs. The concern is that such deference will “result in insufficient checks on corporate managers,” Bebchuk says. In a 2019 paper, he writes that the Big Three spent minuscule amounts on stewardship. According to Morningstar, Vanguard employed 21 people to do the work of corporate oversight at a cost, by Bebchuk’s estimate, of about $6.3 million—a drop in the bucket considering Vanguard’s trillions of dollars under management.

An article by Cass Sunstein: Facebook says that it is banning “deepfakes,” those high-tech doctored videos and audios that are essentially indistinguishable from the real thing. That’s excellent news — an important step in the right direction. But the company didn’t go quite far enough, and important questions remain. Policing deepfakes isn’t simple. As Facebook pointed out in its announcement this week, media can be manipulated for benign reasons, for example to make video sharper and audio clearer. Some forms of manipulation are clearly meant as jokes, satires, parodies or political statements — as, for example, when a rock star or politician is depicted as a giant. That’s not Facebook’s concern.

Hundreds of lawyers have signed onto an open letter criticizing Senate Majority Leader Mitch McConnell for his comments saying the Senate’s upcoming impeachment trial does not have to be impartial. In the letter to the Senate, published Tuesday by the group Lawyers Defending American Democracy, the lawyers said that McConnell’s “assertions cannot withstand scrutiny"...Harvard Law professor Laurence Tribe is also among the signatories. In a phone interview Tuesday, he described McConnell’s efforts as an attempt to turn the Senate trial into a 'political whitewash.' “The reason the Framers gave the Senate the sole power to try impeachments, rather than conducting merely a poll of some political kind, is that they contempted that there would be evidence, there would be witnesses,” Tribe, who advised House Democrats during the impeachment proceedings, said. He noted that senators have to take an additional oath ahead of a Senate impeachment proceeding, and said the country “is entitled” to each senator having “an open mind and try to get to the truth.” However, Tribe predicted that not all is lost when it comes to getting witness testimony in the Senate trial.

Dominion Energy said Tuesday it selected Siemens Gamesa to supply offshore wind turbines for its 2,600-MW installation off the coast of Virginia, but the project's economics could be challenged if the wind farm is excluded from PJM Interconnection's capacity market. Dominion described the decision made through a competitive solicitation as a "significant milestone" in what is currently the largest proposed offshore wind project in the US. The wind farm will be constructed 27 miles off the coast of Virginia Beach and is scheduled to be completed by 2026, according to a statement.... "Most PJM states require utilities to meet renewable energy targets or support specific clean energy resources, such as nuclear plants or yet-to-be-constructed offshore wind farms," Ari Peskoe, Director of the Electricity Law Initiative at Harvard's Environmental and Energy Law Program, said in a blog post Tuesday. "Some of these programs could become more expensive, as clean energy resources that are unable to earn PJM capacity revenue seek additional ratepayer support," Peskoe said.

Unexpectedly, the 2020 presidential campaign is drilling down on petty crime and homelessness. Donald Trump and his Republican allies are reviving law-and-order themes similar to those used effectively by Richard Nixon and Spiro Agnew in the late 1960s and early 1970s to demonize racial minorities. To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors...While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats...Laurence Tribe, a professor of constitutional law at Harvard, described the thinking underpinning progressive Democratic policies broadening the rights of the homeless. In an email, Tribe wrote, "The supposed 'rights' of those who are upset or psychologically threatened by the homeless, the deinstitutionalized, or others similarly situated are what I would call second-order rights, rights that a polity cannot fairly treat as having as strong a claim to protection, as trumps that override utilitarian claims as is true of genuine rights."

Samantha Power, a former U.S. ambassador to the United Nations, would tell you that one of the most pivotal moments of her career as a war reporter, diplomat, and Pulitzer Prize-winning author occurred during a baseball game between the Atlanta Braves and the San Francisco Giants.  It was the summer of 1989, and Power had just wrapped up her first year at Yale and was working in the video booth at a CBS station in Atlanta. While taking notes on the game, she suddenly found herself engrossed in another screen depicting tanks rolling into Tiananmen Square. Up until that point, Power told an audience of  more than seven hundred at Northeastern’s Boston campus Tuesday night, she had little interest in politics, and was considering a career in sports journalism. The Tiananmen Square protests changed all of that. “My epiphany was not ‘I’m going to one day be U.N. ambassador and be a human rights lawyer;’ it was nothing so grandiose,” Power said during an installment of Northeastern’s series, The Civic Experience. “It was simply maybe there’s more to life than sports.”

An article by Noah Feldman: Has John Bolton had some sort of constitutional revelation? Back in November, President Donald Trump’s former national security adviser made it clear that he would not testify voluntarily before the House of Representatives’ impeachment inquiry, and that if subpoenaed he would go to court to ask for judicial direction. Yesterday, Bolton issued a statement indicating that if subpoenaed by the Senate during Trump’s trial, he would testify. What changed? Although Bolton gave a constitutional explanation for his flip-flop, it’s difficult to see a coherent argument in it. The most likely explanation is politics: Bolton seems to be calculating that Senate leader Mitch McConnell will do everything he can to avoid allowing Bolton to be called. That would mean Bolton can now present himself as willing to testify without actually having to appear.

An article by Noah Feldman: Mitch McConnell is giving every indication that President Donald Trump’s Senate impeachment trial will not introduce any new evidence. Instead, it will use only the evidence gathered by the House of Representatives and cited in the articles of impeachment. Is this, have some Democrats have argued, a travesty of justice? The short answer is no. There is already more than enough evidence to convict Trump of the high crimes and misdemeanors with which he is charged. And although they’ll protest, this outcome might be better for Democrats politically than striking some kind of deal with McConnell. Of course, it would be preferable for the Senate to call former national security adviser John Bolton, acting chief of staff Mick Mulvaney, Mulvaney’s adviser Robert Blair and budget official Michael Duffey. Bolton has even said he would testify if called — although the timing of his announcement, on the eve of McConnell’s, lends credence to my theory that he only offered to testify on the expectation that he would not actually have to do it.