Media Mentions

If FERC does reverse itself and apply mitigation rules more broadly, it will have hampered clean energy participation in the three markets targeted by the Department of Energy’s 2017 grid resilience proposal, which would have provided ratepayer funded contracts to coal, nuclear and oil plants in those regions. FERC unanimously rejected that DOE plan in early 2018, but critics say the MOPR orders will do more to support fossil fuel plants because the price floors are more likely to withstand legal challenges than the poorly-designed DOE plan. States may not stand idly by. New York utility regulators already have a proceeding open that could pull them from the NYISO’s capacity market, putting the state in charge of long-term generation planning once again. “The more aggressive FERC Is on these issues, the more likely it will lead to the demise of the New York ISO capacity auction,” said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program.

There’s little pressure for corporations to accede to labor’s demands when Trump has hamstrung enforcement. ... This month, Democrats in the House passed a bill to broaden the right of employees to organize and strike to include independent contractors, who number between 10.5 and 15 million, and to increase the penalties for companies that violate the N.L.R.A. In January, Clean Slate for Worker Power, a coalition of more than 70 participants from labor, academia and nonprofit organizations brought together by Harvard Law School’s Labor and Worklife Program, released proposed reforms that would extend the N.L.R.A.’s protections to agricultural and domestic workers as well as independent contractors and also give all workers a say in how companies are run. One of Clean Slate’s most sweeping recommendations is for sectoral bargaining, which is common in Scandinavia, and makes it legal to negotiate a contract across an industry rather than one company at a time.

An op-ed by Noah Feldman: The president of the United States isn’t a king, and he isn’t above the law — or so constitutional law professors like me keep reminding everybody. But the painful truth is that there is one exception to this truth: the pardon power, exercised this week by President Donald Trump to free or absolve several white-collar criminals. The presidential power to pardon is a holdover from British monarchy. And pardoning by definition goes above and outside the legal system. The pardon power therefore poses a structural threat to the republican character of the U.S. government.

President Donald Trump’s associate Roger Stone will be sentenced Thursday on obstruction and perjury charges by a judge who has come under attack by the president as he assails the case against Stone.  ...“She is made of steel,” said retired Massachusetts federal Judge Nancy Gertner, who is now a professor at Harvard Law School. ...Gertner said that with his tweets Trump “is creating this cacophony that (Jackson) has to then work not to listen to.” “She's really strong, and she's really smart,” Gertner said. “And being smart makes all the difference in the world because you then know what the law requires.”

An op-ed by Ashley Nunes: Liberals love electric cars. The rest of America, less so. Just two percent of autos sold annually are powered by electricity. Democrats, meanwhile, are too busy trying to curb gasoline use altogether to care. Sen. Bernie Sanders (I-Vt.) wants to phase out traditional car engines in favor of electrified ones. So do former vice president Joe Biden, Sen. Elizabeth Warren (D-Mass.) and former New York mayor Mike Bloomberg. Standing in the way, however, is cost. Electric cars are pricier than their gasoline-powered counterparts. No matter. Democrats promise to underwrite the added cost by doling out billions in taxpayer cash to, well, taxpayers, if they go electric.

The Trump administration is going to send Border Patrol agents to “sanctuary” cities around the country, including the Boston area. The Department of Homeland Security said the extra personnel will help ICE agents with immigration enforcement. The Trump administration is going to send Border Patrol agents to “sanctuary” cities around the country, including the Boston area. The Department of Homeland Security said the extra personnel will help ICE agents with immigration enforcement. “This is like a SWAT team basically coming in,” said Philip Torrey of Harvard Law School. “These are folks with sniper certifications, they’re really designed for counter-terrorism, going after significant drug cartels.” Torrey believes the plan creates a bigger risk to public safety. “It has a chilling effect in terms of people reporting crimes, folks being willing to go to the police,” he said. DHS said the officers “have also been trained in routine immigration enforcement actions which is what they have been asked to do.” Sanctuary cities in the area include Boston, Somerville, Cambridge, Newton and Lawrence.

A podcast by Noah Feldman: Stacey Abrams talks about how to create lasting social change, her thoughts on 2020, and her plans for the future.

President Donald Trump threatened to file an expansive series of lawsuits aimed at various people involved in former special counsel Robert Mueller’s long-running probe into Russian-based electoral interference, corruption and obstruction of justice. As is typical of the Trump White House, those threats were issued during an early Tuesday morning Twitter screed....Noted anti-Trump critic, Harvard Law Professor Laurence Tribe, also weighed in—accusing Trump of crass hypocrisy by threatening legal action in light of the 45th president’s decidedly mercurial approach to abiding by the law itself. “For someone with no regard for the rule of law, Trump sure is enamored of invoking the law almost as often as he lies,” Tribe said in an email. “To him, it apparently makes no difference at all whether his lawsuits have even a smidgen of merit. He knows he can wear many litigants down just by making threats. When someone calls his bluff, he often folds. He is, in short, a serial abuser of the legal system just as he has become a serial abuser of the presidential power with which he was sadly entrusted.”

Local officials and advocates are condemning the Trump administration’s decision to send federal border patrol agents to Boston and other so-called sanctuary cities in coming weeks to support immigration enforcement, calling the move an intimidation tactic that could harm public safety. “None of this makes us safer,” said Suffolk District Attorney Rachael Rollins. The initiative, she said, aims “to strike fear and terror throughout our immigrant communities." ...Dispatching border patrol agents to Boston would represent “an incredible waste of resources,” said Phil Torrey, director of the Crimmigration Clinic at Harvard Law School. The tactical unit, Torrey said, is “designed for counterterrorism-type operations or large safety concerns like the Super Bowl.” It typically hasn’t been used for local enforcement efforts, he said. “It’s yet another example of the Trump administration using scare tactics on municipalities that don’t abide by detainers,” Torrey said. Detainers are requests from federal authorities for law enforcement to hold an individual in custody. Boston, Torrey said, has a policy that states Boston police are not authorized to abide by a request to hold someone solely for immigration purposes.

On a drizzly San Francisco day in December, Eric Ries is stationed inside the Succession-worthy offices of Orrick, Herrington + Sutcliffe...The 41-year-old’s 2011 bestseller, The Lean Startup, introduced the masses to product/market fit, minimum viable product, and the pivot. It also vaulted Ries into nerd celebrity status, a coach and mentor to Silicon Valley’s elite...Ries is now focused on his most ambitious — and risky — venture yet: a new stock exchange called the LTSE, or Long-term Stock Exchange...The LTSE is a controversial new exchange that, Ries argues, will create a fundamental shift in the capital markets...It turns out that the very tools of short-termism that Ries rails against — activist investing and short selling (often deployed in combination) — serve a purpose. “Activist investors and short sellers each play an important role in our market ecosystem,” says Jesse Fried, a Harvard Law professor who focuses on corporate governance and security regulation. “The former exerts a disciplining effect on managers, and the latter improves price accuracy.” Take that away, critics argue, and you have a sloppy system where power resides disproportionately in the hands of founders and a select group of institutional investors who can afford to buy and hold, consolidating power so they can effectively ignore other shareholders as they pursue bad ideas.

On Tuesday, President Trump pardoned or commuted the sentences of 11 people he said had served enough time or been treated unfairly. The moves come as the president has sharply criticized the Department of Justice for its handling of the case of longtime Trump advisor Roger Stone. William Brangham talks to two former judges, Harvard Law School’s Nancy Gertner and University of Utah’s Paul Cassell.

On March 24, the Supreme Court is scheduled to hear one of the most momentous tech cases in decades...The case is Google v. ­Oracle, and it turns on who owns scraps of computer code known as APIs. Short for application programming interfaces, APIs allow one computer program to talk to another by letting, for instance, a weather app pull live temperatures from a third party and then display them on a map. APIs are an essential building block of the digital economy, and in the blockbuster case Oracle says Google committed copyright infringement by using its APIs without permission...A final wild card in the case is the fact that the aged members of the Supreme Court are unlikely to have deep knowledge of APIs. Harvard law professor Rebecca Tushnet, who filed a brief supporting Google and its fair-use argument, believes the justices will get up to speed when the case goes to trial. Nonetheless, she acknowledges there is a risk they may overlook the technical intricacies of the case—including that Google is claiming only a specific subset of APIs shouldn’t be copyrighted. If this happens, the justices may rely instead on the broader story lines that the companies are arguing. “A compelling narrative always matters. It gives the court a reason to find in your favor,” says Tushnet. “One framing of the story is that Google went ahead and plundered. The other framing is Oracle took something that belongs to everyone else.”

An article by Noah Feldman: Since Virginia voted to ratify the Equal Rights Amendment in January, there’s been lots of speculative talk about the future of the long-stalled constitutional amendment. The House voted Thursday to remove the deadline for ratification (which came and went decades ago), and the technical questions about that deadline are intriguing — the deadline itself has elicited opinions from, among others, the Office of Legal Counsel and Justice Ruth Bader Ginsburg. But more important is an underlying question: Would it make any real-world legal difference if the ERA were enacted today? Or would the consequences be symbolic at most? The answer turns out to be more complicated than you might think. When the ERA was sent by Congress to the states for ratification in 1972, its passage would certainly have effected immediate change in constitutional doctrine. But in the years since, the Supreme Court has interpreted the Constitution to provide a set of protections against sex-based discrimination that come close to what ERA supporters hoped the amendment would achieve.

On a recent morning in Santa Monica, California, Sergio Avedian pulled into the parking lot of a Vons supermarket, signed into the Uber driver app, and waited. At 7:07 am, a ride request came in for a trip to LAX that the app promised would earn Avedian between $9 and $12. He declined it...Thirty minutes later, he got it: A 15-mile ride toward Glendale, near where he lives. Just over an hour later, he dropped his passenger off. She paid $93.51; he pocketed $76.68. Avedian has been driving part time for Uber and Lyft for four years, but just two months ago, or anywhere outside California, this sort of strategy wouldn’t have worked. But in January, in response to a new state law, Uber changed the workings of its driver app in the Golden State, affecting some 395,000 drivers. Drivers can now see where a rider wants to go and an estimated payout before they accept. They are, theoretically, not punished by the Uber algorithm for rejecting too many rides. (Though starting last week, Uber began sending fewer requests to those who reject or cancel the vast majority of their ride requests.) Driver bonuses are structured differently. And around three California airports, Uber is experimenting with allowing drivers to choose their own fares... “Employers often respond to changes in the law by tweaking their business practices to avoid responsibility, and that’s clearly what we’re seeing here,” says Benjamin Sachs, a professor of labor and employment law at Harvard Law School.

The importance of providing police officers with comprehensive animal encounter training was addressed in a measure approved by the ABA House of Delegates at the 2020 ABA Midyear Meeting in Austin, Texas, on Monday. Resolution 103A encourages the use of laws and policies that provide training on the amount of force that is reasonably necessary during encounters with family pets and other animals to protect both officers and the public, reduce potential legal liability, and ensure the animals are treated humanely...Chris Green, the executive director of the Animal Law and Policy Program at Harvard Law School and the former chair of the Tort Trial and Insurance Practice Section’s Animal Law Committee, spoke in favor of the resolution. He said shootings of animals increase the risk of police officers accidentally shooting innocent bystanders, including children, as well as the legal liability for governments that may need to settle with victims’ families. “When things go wrong, the physical, emotional, legal and financial consequences can be catastrophic,” he said. Green added that when states like Texas and cities like Chicago promoted nonlethal animal encounter training programs, they significantly reduced unnecessary accidents involving police officers and animals.

Sarah Elizabeth Adams was around 5 when her mother was sold to a slave dealer in Lynchburg, Va. The auction took place in the mid-1840s, in the town of Marion, Va. Sallie, as she was called, was herself sold that day, but not with her mother: A man named Thomas Thurman purchased Sallie to take care of his sick wife. Sallie and her family were among the 1.2 million enslaved men, women and children sold in the United States between approximately 1760 and 1860, according to the historian Michael Tadman. After the American Revolution, cotton production grew rapidly, and demand for enslaved workers on the vast plantations of the Deep South intensified...Even well-known sites of slave labor look different when seen through the lens of the auction. When Thomas Jefferson died, on July 4, 1826, the enslaved people he owned at Monticello suddenly faced a perilous future...Spurred on by the pioneering research of Annette Gordon-Reed, Lucia Stanton, Niya Bates and others, Monticello has more fully acknowledged Thomas Jefferson’s legacy as not just the writer of the Declaration of Independence but also an enslaver. At his plantation, the auctions are described in an exhibit, but in downtown Charlottesville, where the second occurred, there is no specific mention of the auction.

An article by Todd Carney '21: Since 2014, Russia and Ukraine have been locked in a conflict in Donbas that has killed thousands. Despite the fighting, the two countries have been able to maintain an economic relationship centered around one industry: energy. A new Russian energy project threatens to undermine that relationship and impact U.S. energy interests in Europe. The new project, Nord Stream 2, will enable Russia to provide natural gas to Germany directly instead of going through Ukraine. This has stark consequences for Ukraine: What little leverage Ukraine holds over Russia comes largely from the fact that Russia has to export most of its natural gas through Ukraine in order to reach Europe. If Russia can bypass Ukraine, the pipeline would make that leverage obsolete. But this project impacts not only Ukraine but also the United States. Some observers in the U.S. see the pipeline as a way for Russia to subtly spread its influence in Europe by deepening European dependence on Russia for natural gas. Analysts fear this will make it more difficult for the U.S. to recruit European support in holding Russia accountable for its transgressions. In response, the U.S. has enacted sanctions to try to slow down the Nord Stream 2. Despite the sanctions, Russia is nonetheless aiming to continue the pipeline project.

An article by Daniel Pessar '20: The growth of certified organic farming is booming; approximately 26,000 United States producers and businesses are now certified as organic operations and thousands of international firms have been certified as well. The road to getting certified by the USDA National Organic Program can be challenging; requirements include “no prohibited substances applied to [the land] for at least 3 years before the harvest of an organic crop,” specific rules for managing “soil fertility and crop nutrients,” and the absence of “genetic engineering, ionizing radiation and sewage sludge.” The time, complexity, and tools required for the transition can also be costly, especially during the three years of implementation when the farm lacks the benefit of the USDA Organic label. Of course, the overall benefits can outweigh the costs as higher prices for food products compensate for the new cost structure. And there could be long-term benefits from the organic farming practices such as reduced soil erosion and increased soil fertility. But another benefit that could be available to farmers considering the switch to organic is a tax benefit obtained by donating a conservation easement.

Index funds—the low-cost mainstay of retirement accounts and college funds—are so popular that they now hold a surprisingly large share of U.S. corporations. These passive investment vehicles purchase shares of companies so that their holdings mirror common measures of market performance, such as the S+P 500, which is weighted by market capitalization. Now, a series of papers from the Law School’s Program on Corporate Governance sounds the alarm about the ways index-fund managers are using their expanding influence—or not. Ames professor of law, economics, and finance Lucian Bebchuk, director of the program, shows through empirical analysis that index funds often vote against the financial interests of investors...BlackRock, State Street Global Investors, and Vanguard, the so-called “Big Three” index-fund investors, collectively cast about 25 percent of proxy votes in all S+P 500 companies (a common benchmark for large, publicly held corporations), Bebchuk says, a percentage that he and his coauthor, legal scholar Scott Hirst of Boston University, expect to increase. “If trends of the past two decades continue for another two decades, the ‘Big Three’ will grow into what we term the ‘Giant Three,’” he says, projecting that they would cast up to 40 percent of such votes by 2040.

President Trump’s attempt to threaten and bully a federal judge may well backfire, at least we should hope it does. The judicial branch is the last brake on a spiteful president determined to pursue political enemies and destroy the Justice Department’s reputation. ...Constitutional scholar Laurence Tribe tells me, “The Attorney General’s highly unusual and transparently political intervention in the thoughtful sentencing recommendations of the line attorneys in [Trump confidant Roger] Stone’s case was outrageous and understandably led to the resignations of the prosecutors who had been assigned the case.” He observes, “They should be commended for risking their careers to stand up for principle. Hopefully the federal court doing the sentencing will pay as little attention to what Barr recommends as his political intrusion into the matter warrants.”

An op-ed by Laurence Tribe: The Department of Homeland Security recently decided to bar New York residents from federal programs that allow “trusted travelers” expedited transit through airports and border checkpoints. The Trump administration is defending the decision as a rational response to New York’s enactment of a law denying federal immigration authorities free access to the state’s motor vehicle records. In truth, the department’s decision is spiteful retaliation against people who reside in a state that declines to bend to the administration’s immigration priorities. Whatever its other virtues or vices, the decision offends constitutional norms that are neither liberal nor conservative but simply American.