Media Mentions

Harvard experts—including Charles Hamilton Houston Institute Managing Director David J. Harris and Professor of Practice Alan Jenkins ’89—talk about how to turn the moment’s energy into lasting change.

By now, you’ve likely seen that Harvard Law School will remain fully remote for the fall semester due to the coronavirus pandemic. The school announced that decision on June 3, making it the first law school to commit to online classes in the fall. Reaction, predictably, has run the gamut. The school has earned praise from those who believe that staying remote is the best way to protect the health of students, faculty, and staff, as well as the general public. But others have said eschewing campus altogether is an overreaction to the virus and will diminish the quality of the education students receive. I want to share some thoughts on this, because I think Harvard being the first to commit to remote instruction is a game changer. Let’s be honest, Harvard moves the legal education market in a way that no other school does (sorry Yale), and when Harvard makes a big play like this, people pay attention. First off, I think Harvard was pretty brave to make this call early in the summer. And I think it was probably the right thing to do. It’s quite possible that other law schools will be able to find ways to safely stagger in-person classes or offer a hybrid approach where larger classes are online and smaller ones meet on campus. But Harvard Law is huge. It graduates 600 J.D.s a year—only Georgetown is larger. And that number doesn’t even count all the LL.M.s, faculty, and staff around the school. I think the logistics of socially distancing the entire operation were just too much. I’ve got to think that some of the other large law schools—Georgetown, George Washington and Columbia come to mind—must be grappling with the same decision. In some ways, Harvard being the first should make it easier for other law schools to follow suit.

An article by David Harris: First, and essentially, we must reckon with what our history has wrought. As difficult as such a reckoning will be to define, indicators will reveal the extent to which we have succeeded. In order to facilitate the process, we must acknowledge a foundational point: “We the People” has never included all of us. That cannot be subject to debate. Once we acknowledge this defining exclusion, we can trace the myriad ways in which having denied large groups of people, notably African Americans and Native Americans, the most basic rights of membership and participation — the qualities of citizenship — has diminished life chances for individuals and communities. Understanding the real, ongoing harm from policies and practices that have differentially distributed access and opportunity, state violence, and deprivation will open our eyes to avenues for repair and restoration. We must rethink our notions of justice, as well. Our current coupling of criminality and justice locks us into a fixation on punishment in lieu of a system of justice. I understand justice as being made whole, which promotes practices that center on health and well-being of all residents, and whole communities, as the hallmarks of safety. Another more tangible indicator of our progress on the pathway to reckoning will be whether we not only hear and empathize with what people who have suffered for decades are saying, but act in truly responsive ways. As people are taking to the streets at great risk to themselves to decry the institutionalized racial violence perpetuated by policing, promoting legislation that bans chokeholds is tone deaf.

In the closing hours of Colorado’s 2020 legislative session and with a statewide eviction moratorium set to expire, Senate Democrats worked feverishly on a last-minute plan to protect hundreds of thousands of Coloradans who may be at risk of eviction in the coming months. State Sen. Julie Gonzales, D-Denver, hoped to extend the moratorium through October. As she spoke emotionally on the Senate floor for more than an hour about housing insecurity, Sen. Jeff Bridges, D-Greenwood Village, was working to broker a last-minute deal that would satisfy tenant advocates, the housing lobby and a handful of wavering Democratic lawmakers. But the talks collapsed and as the Senate adjourned just before 11 on Thursday night, it seemed unlikely that any extension of the eviction moratorium would materialize before the legislature adjourns in coming days...Unemployment has shot into double digits in the state since the coronavirus took hold here in March, creating an unexpected financial crisis for many Coloradans. “The big moment that this all will become acute is on July 31, when federal enhanced unemployment benefits turn off,” said Sam Gilman '22, co-founder of Colorado’s Eviction Defense Project, which formed in March. “The renters who have relied on this funding as a lifeline to be able to pay their rent will immediately face huge difficulty paying their rent.”

Scores of people waiting to recite the oath of citizenship — the final step in the citizenship process — should be naturalized immediately so that they have time to register to vote this fall, immigrant rights groups argued in a lawsuit filed in Philadelphia federal court this week. The Northwest Immigrant Rights Project and other groups filed the suit Wednesday on behalf of legal permanent residents whose applications for naturalization have already been approved by the U.S. Citizenship and Immigration Services' field office in Philadelphia. The organizations say their clients are among thousands nationwide who have had their oath ceremony cancelled or not scheduled due to the pandemic. They argue that federal law allows the courts to expedite the naturalization process during special circumstances...The agency recently began conducting naturalization ceremonies in small groups, but immigrant rights groups complain its not moving fast enough to get through the backlog of would-be citizens in time for election season. Registration deadlines for primary elections are approaching in a number of states this summer, and would-be voters must be citizens when they register or risk facing criminal charges or even deportation. In Massachusetts, Harvard Law School’s Immigration and Refugee Clinical Program and other organizations have asked the Boston federal court to consider holding virtual ceremonies or waive the oath requirement.

Alibaba (NYSE:BABA) stock has held up relatively well in a chaotic 2020. Alibaba stock’s 5.3% year-to-date gain is nothing to get excited about. However, there are at least three potential bullish catalysts that could make for a big second half of the year for BABA investors. The first potential catalyst to love about the stock is its technical picture. This week, Alibaba closed above $220 for the first time since February. It also closed above its April and May peaks. Since the initial novel coronavirus sell-off in March, BABA shares have been making a series of higher highs and higher lows, a textbook market uptrend....A lot of U.S. investors are freaking out about a potential delisting of BABA stock. I say it’s unlikely to actually happen. First of all, losing Alibaba and other Chinese stocks would cost Wall Street stock exchanges, brokers and investment banks millions of dollars. They would lose trading fees, underwriting fees and other income. “Wall Street will be lobbying to try to block it, because it makes a lot of money off of listings of Chinese companies in the United States,” Harvard Law School professor Jesse Fried said. Fried said the House may not even bring the bill up for a vote. Voting against it would make representatives look weak on China. But voting for it would anger their deep-pocketed Wall Street donors. I think people may be underestimating how much of an impact the investment community has on U.S. politics. When it becomes clear to investors that BABA stock isn’t going anywhere, it could trigger a relief rally.

A cross-ideological group of U.S. Supreme Court practitioners and former clerks on Thursday called for U.S. Attorney General William Barr to be held accountable for what they called the Trump administration’s “immoral” and “undemocratic” use of force against protesters in Lafayette Square on the evening of June 8. “A line was crossed last week. And we, as lawyers, must speak out to defend it,” the group wrote in a statement posted on Medium. The statement was signed by more than 100 attorneys, including 39 former Supreme Court clerks and 20 alums of the Justice Department’s office of solicitor general. Among them were Sidley Austin partner Carter Phillips, Mayer Brown partner Andrew Frey, Orrick Herrington + Sutcliffe partners E. Joshua Rosenkranz and Kelsi Corkran, Ropes & Gray partner Douglas Hallward-Driemeier, Hogan Lovells partner Catherine Stetson, and Harvard Law School’s Charles Fried. The statement also was signed by a number of former U.S. Justice department lawyers and constitutional law scholars. The statement followed one posted Wednesday, also critical of the Justice Department, from more than 1,260 former Justice Department lawyers across presidential administrations. “Last Monday, the Attorney General violated his oath by overseeing violence against peaceful protesters exercising their First Amendment rights. Those actions are irreconcilable with the unbiased administration of justice and the rule of law,” the new statement from the Supreme Court practitioners, former clerks and constitutional law scholars said.

Social media can be a scary, dangerous place under regular circumstances, but in a time of civil unrest due to the deaths of unarmed black men and women at the hands of police officers, social platforms become uncharted territory — particularly for many nonblack people hoping to show that they are allies. Under these circumstances, posting, or even knowing what to post, can sometimes create anxiety. Like many things, the rules of engagement on social media are different for black and nonblack people, especially now. For black people, anxiety can come from having posts critiqued by other black people because they don’t seem “angry enough,” “sad enough” or not enough of some other emotion. Kishonna Gray, an assistant professor in communications and gender and women’s studies at the University of Illinois at Chicago, doesn’t think there are any unspoken social media rules for different races, but rather there are entirely different spheres. That’s why Black Twitter, and other similar spaces, exist, she said...For nonblack people, especially white folks, the anxiety of posting can come from being unsure or fearful about what to say or do, but also from just being in this movement for the first time. “This has been a marathon that has gone on for centuries, so they’re getting aboard a fast-moving train and trying to make sense of it,” said Gray, who is also a faculty associate at the Berkman-Klein Center for Internet and Society at Harvard University “So they don’t know. It’s not laid out easily for them; there’s no GPS on the path to liberation and freedom. And so it’s exhausting ... especially for folks who’ve never had to think about it.” ...But that shouldn’t stop them from trying. If a nonblack ally doesn’t have anything of substance to contribute, don’t take up more space, said Gray, but amplify and highlight the voices — particularly the black voices — that have already said what you’re feeling, thinking or trying to express.

Online finance marketplace Jiayin Group’s stock price [NASDAQ:JFIN] surged more than 10 times during trading yesterday as a number of Nasdaq-listed Chinese companies saw their stock price somersault as the tech-heavy New York bourse advanced to close at a record high. Wins Finance Holdings [NASDAQ:WINS], a financial services company, was up more than two and a half times and gained more than seven-fold during the day. China Finance Online [NASDAQ:JRJC] closed up 51.5 percent after seeing its price double in the day. Shenzhen-based real estate firm Fangdd Network Group [NASDAQ:DUO] surged 13 times on June 9. It rose 30 percent yesterday before plummeting 66 percent to close at USD15.82. These major price fluctuations could be down to the fact that some of these companies do not have a large number of stocks in circulation...Last month, the US Senate passed a bill requiring businesses listed in the country to prove that they are not “owned or controlled by a foreign government” and to adhere to stricter audit requirements, a move that could squeeze out a number of Chinese firms. There are around 248 Chinese companies worth USD 1.6 trillion listed in the US, according to incomplete statistics. But the Senate’s move appears to have done little to dampen investor sentiment. Its bill could not only “backfire” on American investors, but could also hurt Wall Street, in which case investment institutions are likely to lobby against the legislation, Jesse Fried, professor at the Harvard Law School, told CNBC on June 9.

Shares of US-listed Chinese mainland companies set off on a roller coaster on Wednesday, with multiple stocks seeing turnovers surging dozens of times and the trade-halting circuit breaker being triggered more than 100 times. The volatility might have been triggered by the news that Wall Street is reportedly hindering the US government from taking action against mainland companies listed there, experts said. On Wednesday, some Chinese companies listed in the US saw their share prices flying high and then tumbling abruptly. The share price of mainland fintech company Jiayin Fintech at one point skyrocketed a stunning 900 percent but fell suddenly approaching closing. The company closed at $5.80 per share, up 96.61 percent. Wins Finance, another mainland finance company listed in the US, saw its share price surge 169.01 percent by closing...Harvard Law School Professor Jesse Fried recently said in an interview that the Holding Foreign Companies Accountable Act - designed by the US government to improve financial reporting by China-based firms trading on US stock exchanges that might force mainland companies to delist from US markets - is unlikely to pass due to opposition from Wall Street. According to Fried, Wall Street will be lobbying to block the legislation as it makes a lot of money from Chinese listings in the US.

On May 20, the Senate passed the Holding Foreign Companies Accountable Act (HFCAA), a bill that would potentially delist Chinese stocks that fail to comply with Public Company Accounting Oversight Board’s (PCAOB) audits for three years in a row. On the surface, the bill is intended to protect U.S. investors from potential fraudulent accounting by Chinese companies. Bank of America analyst Michael Carrier said Wednesday that delisting foreign stocks like Alibaba Group Holding Ltd - ADR (NYSE: BABA) and JD.Com Inc (NASDAQ: JD) could have a negative impact on Wall Street...He estimates the exchanges could lose between 2% and 3% of listing revenue, between 1% and 2% of US equity transaction revenue and roughly 1% of total revenue. Carrier’s comments come a day after Harvard Law School professor Jesse Fried told CNBC that the bill is unlikely to pass due to opposition from Wall Street.  “Wall Street will be lobbying to try to block it, because it makes a lot of money off of listings of Chinese companies in the United States,” Fried said.

Judge Emmet Sullivan’s appointed amicus curiae issued a stinging rebuke of retired lieutenant general Michael Flynn and the U.S. Department of Justice (DOJ) in a brief filed Wednesday. “[T]he Court should deny leave because there is clear evidence of a gross abuse of prosecutorial power,” retired judge and former prosecutor John Gleeson wrote in his 82-page filing–directly addressing the extraordinary intervention of Attorney General Bill Barr in the case. In early May, the DOJ head directed his subordinates to ask the U.S. District Court in the District of Columbia to dismiss charges of lying to federal agents against the president’s one-time national security advisor. Judge Sullivan, who has overseen Flynn’s case for years and who has been critical of the defendant in the past, took umbrage at the request and asked for any interested parties to intervene in the case in order to assess the merits of such a dismissal. Gleeson, known for his perspicacity viz. federal standards, was hand-selected by Sullivan for his analysis on May 13...Harvard Law Professor Laurence Tribe was also firmly on board with the retired judge’s thorough trashing of the DOJ’s position. “The amicus brief on behalf of Judge Gleeson is genuinely spectacular,” he said in an email. “It is thorough, careful, precise, candid, utterly devastating as a legal matter, and not in the least bit overstated. No judge who rules against the position articulated in this brief can possibly retain the respect of his or her peers.”

Activists who were outraged by George Floyd's death welcomed the criminal charges against Derek Chauvin and three other former Minneapolis police officers who were involved in that horrifying incident. But some of those charges raise issues that would trouble many of the same criminal justice reformers if the context were different. The second-degree manslaughter charge against Chauvin, the officer who kneeled on Floyd's neck for nearly nine minutes, seems to easily fits the facts of the case. It alleges that Chauvin caused Floyd's death "by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another." That offense carries a maximum penalty of 10 years in prison...Chauvin also faces a third-degree murder charge, which alleges that he caused Floyd's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." That charge, Harvard law professor Laurence Tribe and Minnesota criminal defense attorney Albert Turner Goins have argued, is not appropriate in this case, because Minnesota courts have restricted it to "reckless or wanton acts" committed "without special regard to their effect on any particular person."

Upcycled food is an officially defined term, which advocates say will encourage broader consumer and industry support for products that help reduce food waste. Upcycling — transforming ingredients that would have been wasted into edible food products — has been gaining ground in alternative food movements for several years but never had been officially defined. The Upcycled Food Association announced May 19 that it defined upcycled foods as ones that "use ingredients that otherwise would not have gone to human consumption, are procured and produced using verifiable supply chains, and have a positive impact on the environment." The definition was drafted by a working group convened by the Upcycled Food Association, which included representatives from Harvard University, Drexel University, Natural Resources Defense Council, World Wildlife Fund and ReFED, a nonprofit that analyzes solutions to food waste...Standardizing the term is also a first step toward legislation that supports upcycling, according to Emily Broad Leib, a Harvard University law professor and director of Harvard’s Food Law and Policy Clinic. "Further research can be done to identify and leverage policy incentives to support upcycled foods as a model to reduce food waste and support a more sustainable food system," she says in a statement.

Like the cavalry riding over the hill to save the day, guardians of justice are rushing forth to support the sanctity of the rule of law and due process from the maundering authoritarians in the Trump administration. For nearly four years, the Justice Department has been deformed and corrupted, becoming the unbridled defender of President Trump’s personal interests...Also on Wednesday, retired New York federal judge John Gleeson filed his amicus brief at the invitation of U.S. District Judge Emmet G. Sullivan on whether to accept the Justice Department’s decision to dismiss the charges against former national security adviser Michael Flynn — for which Flynn had already pleaded guilty — concerning his lies to the FBI about his conversations with the Russian ambassador Sergey Kislyak during the 2016 transition...Gleeson’s brief receives widespread praise from legal experts. “It is thorough, careful, precise, candid, utterly devastating as a legal matter, and not in the least bit overstated,” constitutional scholar Laurence H. Tribe tells me. “No judge who rules against the position articulated in this brief can possibly retain the respect of his or her peers.” Tribe continues, “As this amicus brief meticulously demonstrates beyond any reasonable doubt, a decision in favor of DOJ in this case would have to be ‘based solely on the fact that Flynn is a political ally of President Trump.’ I cannot recall reading a more compelling or more obviously irrefutable legal submission in years.” Finally, Tribe adds, “If I had been a lawyer on the other side of this matter, I’d be thoroughly ashamed of myself.”

A podcast by Noah Feldman: Dr. Manisha Juthani, an infectious disease specialist and associate professor of medicine at Yale School of Medicine, provides tips for protesting safely and explains why she chose to participate.

An article by Jack Goldsmith: In recent months, President Trump has fired or removed five inspectors general and sought to replace at least four of them with officials he perceives to be more loyal. Members of Congress have responded with bills to check the president through “for-cause” removal restrictions on inspectors general. I argued in the Washington Post last week that these efforts might not be constitutional and are destined to fail in any event. A better approach, I maintained, is for Congress to limit the president’s discretion to temporarily fill vacant inspector general slots either to someone already confirmed for an inspector general position in another agency or to a senior career official in the agency’s Office of Inspector General. This post explains why this and similar approaches are clearly constitutional. The Constitution specifies two basic paths for the president to appoint officers: the Appointments Clause, which requires Senate advice and consent; or the Recess Appointments Clause, which requires that the Senate be in recess. The executive branch has taken different positions (pp. 4-7) on how much authority Congress has to specify qualifications for these offices. In recent decades, it has taken a particularly narrow view of Congress’s authority. Notably, then-head of the Office of Legal Counsel (OLC) William Barr’s 1989 memorandum on “Common Legislative Encroachments on Executive Branch Authority” criticized qualification requirements and stated that the “only congressional check that the Constitution places on the President’s power to appoint ‘principal officers’ is the advice and consent of the Senate.” One can expect the Barr Justice Department in 2020 to hold this view.

An article by Jeannie Suk Gersen: In the more than two hundred and thirty years since the Constitution was ratified, no lawsuit had attempted to enforce its anti-corruption provisions—until the Presidency of Donald Trump. Two previously obscure provisions of the Constitution, known as the emoluments clauses, aim to prevent public officials from being improperly beholden to foreign and domestic governments. One, the foreign-emoluments clause, requires a person holding a federal “office of profit or trust” to get Congress’s consent before accepting any “emolument”—an advantage, gain, or profit—from a “foreign state.” The other, the domestic-emoluments clause, prohibits the President in particular from receiving any “emolument” from the federal government or from a state, other than the preset standard salary for the job of President. Previous Presidents did not present the need for courts to interpret these clauses’ meaning. And, for the same reason that Trump is so different from other Presidents—his brazen disregard of legal norms—several lawsuits claiming that he is violating the emoluments clauses may end up forcing the unfortunate recognition that the Constitution’s anti-corruption measures are ineffectual when most needed.

Education Secretary Betsy DeVos is being sued again. This time she’s the target of a class action brought by student borrowers who say she’s illegally limiting the amount of debt relief they should get under federal law. The suit, filed by the Project on Predatory Student Lending at Harvard Law School and the Public Citizen Litigation Group, challenges a policy change DeVos issued last year. Before this change, defrauded student borrowers could get full debt relief, but now DeVos is only allowing partial forgiveness. Under the Higher Education Act, the “borrower defense” rule allows the Secretary of Education to discharge debt from schools that defrauded students. Instead of forgiving the entire debt a student took on to attend a school that defrauded them, the new policy would only forgive a portion based on what their predicted earnings were, according to a formula proposed by the Department. This formula would impact students seeking debt forgiveness after for-profit schools like ITT Tech and Corinthian Colleges defrauded them. When DeVos and the Department of Education proposed the new policy, she defended the formula as “scientifically robust” in a House Committee of Education and Labor hearing. But academics and policy analysts soon poked holes in the formula.

An attempt by the Senate to prevent China from using American investments in Chinese firms against the United States might prove to be self-defeating in the long run. Already an epicenter of anti-Chinese communist sentiment, the Senate on May 20 overwhelmingly approved the "Holding Foreign Companies Accountable Act (S. 945)," a bill that might lead to Chinese firms being barred from listing on U.S. stock exchanges. The bill will require foreign companies doing business in the U.S. to certify they’re not controlled by their governments. They will also have to submit to audits by U.S. regulators for three consecutive years...The intent of S.945 is laudable but the real world application might not redound to the benefit of the U.S., contended Jesse Fried, a professor of law at the Harvard Law School. “So, I think in terms of protecting American investors, this bill if it becomes law, could backfire” and might also hurt Wall Street, warned Fried. He told CNBC he's “not sure that this bill ... will actually make American investors better off" because there’s a good chance Chinese firms will stop trading on Wall Street after three years if the bill becomes law...Fried also noted not much can be done to protect the interests of American investors in Chinese firms. He believes there’s “good reason” to think S. 945 won’t be signed into law because of staunch Wall Street opposition. “Unfortunately, I think that money that American investors have already paid for stocks in Chinese companies -- especially money that’s gone back to mainland China -- is basically money that these people may never see again. But there’s not really that much you can do to protect them at this point."

Today, the Harvard Law School Food Law and Policy Clinic (FLPC) released a first-of-its-kind interactive resource to inspire long-term policy solutions to food waste, hunger, and climate change: The Global Food Donation Policy Atlas. In partnership with The Global FoodBanking Network (GFN), and with the support of the Walmart Foundation, The Global Food Donation Policy Atlas maps the laws and policies affecting food donation around the globe and provides recommendations to prevent unnecessary food waste and improve food distribution to those in need. The research released today focuses on Argentina, Canada, India, Mexico, and the United States, the first five of 15 countries participating in this project...The Global Food Donation Policy Atlas looks at six main barriers to food recovery: food safety for donations, date labeling, liability protection for food donations, tax incentives and barriers, government grants and funding, and food waste penalties or donation requirements. It identifies several opportunities for governments to prevent unnecessary waste and to promote food donation... “It’s more important than ever for policymakers, government agencies, food donors, companies, food banks, and the public to understand the impact of unnecessary food waste in their countries and the need to change it,” said Emily Broad Leib, Faculty Director at FLPC and Clinical Professor of Law at Harvard Law School. “The Global Food Donation Policy Atlas is the first research study to compare food donation policies and best practices across the world, providing us with the global perspective we need to address this complex issue,” Broad Leib concluded.