Media Mentions

It was a blunt warning about the dangers of youth vaping: Georgia Attorney General Chris Carr announced late last month that his state had joined 38 others to investigate whether Juul Labs, the nation’s largest electronic cigarette company, promoted and sold its nicotine-heavy products to teens. It was a moment Juul had worked to avoid...“It means they’re in a world of hurt,” James Tierney, a former attorney general of Maine who now teaches at Harvard Law School, said of the multistate investigation. “The states are not buying what Juul is selling, and they’re saying, ‘We need to go deeper.’”

Why do certain countries make certain decisions? What are the interests of the players in question? What are the consequences and, of course, the legality of foreign policy choices. In a new book, Joseph Nye, professor emeritus and former dean of the Harvard Kennedy School, asks another question about foreign policy. Do morals matter? Jack Goldsmith sat down with Nye to discuss his new book, 'Do Morals Matter?: Presidents and Foreign Policy from FDR to Trump.' They discussed the ethical and theoretical factors by which Nye judged each president before going through many of the cases he focuses on in the book.

The Department of Veterans Affairs has unlawfully turned away veterans with other-than-honorable discharges for decades because of flawed training and guidance that created a “cycle of misinformation,” a report released Thursday found. Rather than telling veterans with other-than-honorable discharges to fill out applications for health care, sending a written denial and informing them about their options to appeal, VA staff often rejects them on the spot, the report says. While other-than-honorable discharges, commonly known as “bad paper,” can preclude veterans from some VA services, that’s not always the case — particularly with mental health care. The gay veterans group OUTVETS, along with the Veterans Legal Clinic at Harvard Law School, authored the report. They based findings on interviews with veterans, evidence from veterans advocates and legal aid attorneys, and documents obtained from the VA and Defense Department.

A study centered on veterans with “other-than-honorable” discharges reveals that they are routinely denied health care benefits – even if they’re potentially eligible. Many military veterans need help with medical issues after their service career ends. For that treatment, they can go to a medical center operated by the Department of Veterans Affairs, or VA.  But a study released Thursday by the Veterans Legal Clinic at Harvard Law School alleged that some are being turned away from local VAs without treatment to which they have a right.

The 2020 Food Law Student Leadership Summit was held on the University of Arkansas campus last week. We speak with Emily Broad Leib, the director of Harvard Law School's Food Law and Policy Clinic, about how the summit began and what takes place during the event.

Before Elizabeth Warren entered politics, she spent nearly two decades as a professor at Harvard Law School, imparting her extensive knowledge of bankruptcy and commercial law to hundreds of young legal minds. And on Thursday, after she announced her withdrawal from the race to become the Democratic nominee for president, students at the Ivy League school expressed their gratitude for the Massachusetts senator’s bid by writing encouraging messages on Post-it notes and putting them around a portrait of her that hangs in a campus building. Some of the messages read: “Voting for you was the easiest vote I ever cast! Thank you for inspiring me!” and “You inspired me to come to HLS. Thank you," and “Don’t give up. We are with you!”

One of the bad things about bad behavior by politicians (particularly by Donald Trump, because he’s president, but by others as well) is that it not only can encourage bad behavior by politicians of all ideological stripes but also can be cited to justify it. All of this is sadly illustrated by Senate Minority Leader Charles E. Schumer’s disturbing attacks against members of the Supreme Court. ... Schumer’s remarks received, thankfully, condemnation not just from Republicans but also from Democrats — among others, Harvard Law School professor Laurence Tribe, a staunch supporter of abortion rights and friend of the senator, and my friend Neal Katyal, a former acting solicitor general during the Obama administration. Both urged Schumer to apologize and praised the chief justice’s response.

Senate Minority Leader Charles E. Schumer (D-N.Y.) said Thursday that he misspoke when he said that two justices appointed by President Trump to the Supreme Court would “pay the price” for a vote against abortion rights, but he defended his passion on the issue, saying his anger reflected that of “women across America.” ...Schumer’s remarks also drew rebukes from some liberals, including Harvard law professor Laurence Tribe. “These remarks by @SenSchumer were inexcusable,” he tweeted. “Chief Justice Roberts was right to call him on his comments. I hope the Senator, whom I’ve long admired and consider a friend, apologizes and takes back his implicit threat. It’s beneath him and his office.”

An op-ed by A. Benjamin Spencer, the Bennett Boskey Visiting Professor of Law at Harvard Law School and the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law: On Wednesday, the U.S. Supreme Court heard oral argument in June Medical Services LLC v. Russo, a case challenging a Louisiana law requiring physicians who perform abortions to have admitting privileges at a local hospital. The case is widely viewed as the first vehicle that could allow the current court to chip away at Roe v. Wade, if not overturn it. However, it may be more likely that the court will beat back the challenge to the Louisiana law on narrower grounds that have received much less attention: a lack of standing. While deciding this case on standing grounds would mean that the court leaves Roe v. Wade untouched, the adverse consequences for future legal challenges to abortion restrictions would be significant.  

The Department of Veterans Affairs has for decades unlawfully turned away thousands of veterans with other-than-honorable discharges, rendering some of the most vulnerable veterans invisible and desperate for help, according to a study released Thursday. Systemic misunderstanding of the law within VA about which veterans it should care for — and which should be denied services — has triggered improper mass denial of care since 1980, the Veterans Legal Clinic at Harvard Law School said in the study, leaving an estimated 400,000 more at risk of never gaining access to health care they may have earned. The discharges, given for misconduct that can range from drug use to insubordination but not proved in court, are colloquially known as “bad paper” for the lifetime of negative consequences they can have.

In the past three months, regulators appointed by President Donald Trump have disrupted ambitious plans to combat climate change in electric grids serving 85 million people in the U.S., from Chicago to New York to Washington. ...“They’re taking these markets in a totally different direction than states want to go,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “It could backfire quickly.”

It is well known that one of the best services a retail broker can provide is not answering the phones during a crash. The market is down, the customers panic, their timing is terrible, they want to sell at the bottom, they call you up to say “sell everything,” you say “we’re sorry all our representatives are assisting other customers, your call is important to us,” they hang up and get distracted, the market rallies, they forget about selling, you have saved them a fortune, good work. I don’t think any retail broker has this as an official policy; it seems legally dicey and hard to pull off in practice.  ...But here are a blog post and paper from Lucian Bebchuk and Roberto Tallarita about “The Illusory Promise of Stakeholder Governance.” As the title suggests, they are skeptical. For one thing, unlike a lot of stakeholder-governance advocates, they try to draw a clear distinction between the second and third theories, and dismiss the second theory as just another form of shareholder value.

Fashions change and presidential administrations come and go, but the feud between corporate guru Martin Lipton of Wachtell Lipton Rosen & Katz and Harvard law professor Lucian Bebchuk will apparently always be with us. On Tuesday night, Wachtell put out a client alert castigating Bebchuk for a new paper, "The Illusory Promise of Stakeholder Governance." (Bebchuk summarized the paper in a March 2 post at the Harvard Forum on Corporate Governance.) Lipton, as you probably know, has been a leading advocate for the new corporate paradigm of directors and officers considering the interests not just of shareholders but of an array of stakeholders, from employees and suppliers to those who live in environments affected by the corporation’s actions.

An article by Cass Sunstein: The Supreme Court heard oral arguments on Tuesday in the most important separation-of-powers case in several decades. The central issue is simple: Did Congress violate the Constitution in making the Consumer Financial Protection Bureau independent of the president when it created that agency in 2009? Under the law as it now stands, the president can fire the bureau’s director only for “inefficiency, neglect of duty, or malfeasance in office.” Whether that restriction is constitutional bears on the entire structure of the U.S. government. Many federal agencies are “executive,” in the sense that their heads work for the president and can be discharged for whatever reasons he likes. That’s true, for example, of the Departments of State, Defense, Transportation, Agriculture, Justice, Education, Energy, Labor, Interior, Treasury and Commerce. It’s also true of the Environmental Protection Agency.

An attorney for Micheal Baca, a former Colorado member of the Electoral College, told the U.S. Supreme Court this week that the state of Colorado unconstitutionally violated Baca’s right to vote for the presidential candidate of his choice in 2016, calling it an act without precedent in American history. The state’s punishment of Baca, if it stands, would allow state governments to stop the Electoral College from electing candidates who have not released their tax returns, not visited the state, or who support policies the state government opposes, argued the attorney, Lawrence Lessig of Harvard Law. “A state’s power to appoint electors does not grant it the power to control or remove appointees,” he wrote in a legal brief Monday...In his brief Monday, Lessig often cited the Constitution and American history. There were more than 180 instances of electors voting against their state’s wishes — what Lessig calls “anomalous electoral votes” — without punishment until 2016, he told the Supreme Court. In 1968, for example, an elector chosen to support Richard Nixon voted instead for George Wallace. The matter was debated in Congress and it was determined the vote for Wallace should count. “Voting is the core act of discretion and free judgment on which our system of constitutional government depends,” Lessig wrote, adding that Electoral College voting “may not be controlled by a state.”

The Federal Reserve announced Tuesday morning it’s making an emergency half percentagepoint rate cut, as fears continue to mount about the global spread of COVID-19. Marketplace host Kai Ryssdal spoke to Daniel Tarullo, a former member of the Federal Reserve’s Board of Governors and professor at Harvard Law School, about what the central bank’s decision process may have been like. “The mood was probably a fairly somber one,” Tarullo said. “I suspect a lot of preliminary discussions were held last week.” Despite the rate cut, the Dow fell 700 points today. Tarullo said the market reaction implies that the Fed’s announcement may have further worried people about the severity of COVID-19.

A letter to the editor by Nancy Gertner: The Globe’s Feb. 19 editorial called on the government to appeal Judge Leo Sorokin’s 90-page decisionthrowing out the convictions of Kenneth Brissette and Timothy Sullivan on extortion-related charges(“Stopping corruption is everyone’s business”). Why? “When 12 jurors find that they know public corruption when they see it, their findings ought to count for something.” This glib comment ignores the facts of the case, Sorokin’s extensive findings, and most important, the law. Surely the jury’s findings “ought to count for something,” but not when government lawyers, as Sorokin expressly found, misstated the law, urged the jury to convict on a theory that the court had ruled out, and presented a closing argument “saturated with mischaracterizations of the evidence.” Certainly the jury’s findings should “count for something,” but the standard — that jurors “know corruption when they see it” — could not be more off the mark.

Members of the Electoral College get their authority from the US Constitution, not states, and shouldn't be punished for voting their conscience when it comes to presidential nominees, Harvard professor Lawrence Lessig told the Supreme Court in a court filing Monday. The case, which the justices will hear next month with a ruling expected by July, adds another hot-button political issue to the Supreme Court's docket in the middle of the presidential election... "This Court should restore the practice that has governed for more than 220 years and make clear that while states have plenary power 'to appoint' electors, it is the 'Electors' who have the power 'to vote' free of state control," wrote Lessig of the advocacy group Equal Citizens, representing the Colorado elector and the Powell voters. A state must appoint electors, but once that happens, Lessig argues, its power ends...Lessig suggests a hypothetical to the Supreme Court, asking that if states are allowed to enforce who electors vote for, there may not be a way to stop them from adding other conditions such as blocking candidates who don't release their tax returns. "If a state has the power to direct electors to vote consistent with the election returns, a state has the power to forbid electors from voting for candidates who fail to release their taxes returns, who fail to visit the electors' state, or who fail to commit to any political position deemed by a state legislature to be important and correct."

You don’t always need to camp for days on the sidewalk to grab a seat at a US Supreme Court hearing. But this week, this winter, is different. On March 4 the justices are hearing arguments in one of the most anticipated cases of the term—June Medical Services v. Russo. The matter stems from a Louisiana law ostensibly designed to protect women’s health, but with the practical effect of limiting abortion access. The high court already ruled in 2016 that a similar law out of Texas, which required doctors at clinics to be associated with local hospitals, was unconstitutional because it unduly burdened women without advancing a legitimate government interest. But that was before justices Neil Gorsuch and Brett Kavanaugh were appointed by US president Donald Trump...An amicus brief from legal scholars, including Lee Bollinger of Columbia University and Laurence Tribe from Harvard, argues that there’s no real difference between the Louisiana and Texas cases and that the Fifth Circuit’s decision masks “recalcitrance” behind alleged factual considerations. The outcome here should be clear, they say, urging the justices to rein in lower courts who fail to follow the law and arguing that the implications extend far beyond the abortion context.

Sen. Elizabeth Warren is crusading against big banks as one of her core platforms for the 2020 presidential election, but it’s her social media policies that may have the most direct impact on bitcoiners. Namely, she’s taken a hard stance against bank overreach, wants to reduce risky corporate lending and weaken the “monopoly influence” of companies like Citibank, Wells Fargo and Google...Warren has apparently not made any public statements directly related to a clear policy on bitcoin. Yet, it’s her platform on curtailing rampant disinformation campaigns – the promotion of falsehoods online for political or commercial ends – that relates most directly to the bitcoin market. Digital media experts believe current market conditions for cryptocurrency are shaped by social media chatter, some of which is deliberately designed to misinform and misdirect...Oumou Ly, a staff fellow at Harvard’s Berkman Klein Center working on the disinformation research program, said disinformation campaigns impact “financial markets and stock market movements.” It stands to reason that bitcoin markets are not an exception. “We don’t, at this time, have great metrics for how to measure the impacts of disinformation,” Ly said. “As a starting point, I think Warren has the strongest platform related to finding misinformation.”

In the past three months, regulators appointed by President Donald Trump have disrupted ambitious plans to combat climate change in electric grids serving 85 million people in the U.S., from Chicago to New York to Washington. It was easy: an agency just rewrote some obscure pricing rules. With that, the Federal Energy Regulatory Commission cranked up to a new boil the simmering debate over whether the U.S. should get its electricity from fossil fuels or sources that don’t spew carbon. The commission’s Republican majority decided the playing field should be leveled so no one generator gets special treatment. “They’re taking these markets in a totally different direction than states want to go,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “It could backfire quickly.” The rulings set up a battle over whether left-leaning states including New York, New Jersey and Illinois can effectively promote clean power. Wind and solar have long depended on state quotas and subsidies for growth, and those incentives could now be hobbled.