Media Mentions

Every now and then, an idea comes along about how businesses should be run. And right now, the idea in vogue is “stakeholderism”. Basically, it’s a response to the bashing business leaders have taken for the downsides of modern shareholder capitalism: whether the excessive pay of chief executives and fund managers, or the spillover effects from heedless shareholder-focused entities that can hurt communities by squeezing wages, closing factories or polluting the environment...But is there much more to all this gush than an urge for self preservation? Not according to a new working paper from the academics Lucian Bebchuk and Roberto Tallarita. They claim the public declarations are little more than PR releases. And thank goodness, say the authors, because real stakeholder capitalism would not benefit those it purports to help. Their analysis divides stakeholderism into two categories. First, there’s the halfway house of “enlightened shareholder value” where directors still work for shareholders, but are supposed to “take into account” other interests. (This is the sort of “directors’ duties” regime the UK’s Companies Act prescribes). The authors regard it as being mainly wallpaper, with almost no direct effect.

Each of our stakeholders is essential.” Those words were part of a declaration signed last August by 181 bosses of big American companies belonging to the Business Roundtable (BRT), an eminent lobby group. It seemed to represent quite a u-turn—nothing short of a repudiation of America Inc’s shareholder-first orthodoxy. As investors pour billions into funds promoting environmental, social and governance objectives beyond profitability, a vision of a cuddlier capitalism has taken hold. Or has it? In a new paper Lucian Bebchuk and Roberto Tallarita of Harvard Law School pore over data from the companies of some of the brt signatories and find little evidence (so far) that the declaration has altered corporate behaviour. For example, they found that only three of the 20 companies whose ceos sit on the brt’s board—Boeing, Stryker and Marriott—have amended their corporate-governance guidelines in any way since the declaration. And none of the amendments had anything to do with stakeholder welfare, the authors say.

A podcast by Noah Feldman: Stefanie Stantcheva, Professor of Economics at Harvard, discusses the economic harms of COVID-19 and measures governments can take to soften the blow of a recession.

An article by Todd Carney '21: Though most of the headlines regarding disputed territory in Eastern Europe focus on Crimea and Kosovo, there is another region in Eastern Europe that continues to be in question, Transnistria. This blog has been one of the few outlets to consistently pay attention to the conflict. While the conflict has remained cold for quite some time, there are still uncertainties that could impact Moldova’s chance to join the EU. This piece evaluates whether international law can realistically resolve the dispute between Transnistria and Moldova.

The late-night decision Monday by Ohio Gov. Mike DeWine (R) to close the polls in his state due to the “unprecedented public health crisis” surrounding the coronavirus pandemic created a wave of confusion and drew criticism from voting advocates. “We have a constitutional crisis now in Ohio,” tweeted state Rep. Jon Cross, a Republican who vowed to keep the polling locations open in his district in northwest Ohio. He added, “...the Ohio Department of Health can not shut down an election.” ... “Treating court orders as options would be the beginning of the end,” wrote Harvard Law School professor Laurence Tribe. “Ohio mustn’t become the graveyard for the rule of law.” Tribe’s sentiment was echoed by voting advocates nationwide, including Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Clarke wrote that she was “ASTOUNDED” by the cryptic messaging DeWine had put out beforehand.

A podcast by Noah Feldman: Richard Lazarus, a law professor at Harvard and a leading Supreme Court advocate, discusses where public health stops and our individual liberties begin. Plus, what does it mean that the Supreme Court has postponed oral arguments?

Six counties in the San Francisco metro area made headlines when they announced Monday they were ordering all their residents to “shelter in place” in response to the novel coronavirus. The sweeping proclamation is the most striking example to date of state and local governments in the United States taking sweeping action to halt the spread of the novel coronavirus and to limit the impact of the disease it causes, Covid-19. While the Bay Area is the first region in the U.S. to issue such an order, a number of states have mandated school and business closures and vastly curtailed nearly all major events... “The good news [is] there are a number of cases on public health needs, the constitution, and the so-called state ‘police power.’ The bad news is they are quite old, mostly turn of the 20th century, and a huge amount of constitutional law has changed since then. As a result there is a lot that is vague and uncertain in this area,” said Glenn Cohen, the faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School.

An article by Noah Feldman: It’s good news that the Supreme Court has suspended oral arguments indefinitely. If nothing else, it helps keep Justice Ruth Bader Ginsburg safe. Spry but still a cancer survivor, she celebrated her 87th birthday yesterday. I would say it’s practically a national security imperative to keep the nation’s unofficial favorite Jewish grandmother away from anyone who might give her the coronavirus. Apart from the health of the other justices (such as Justice Stephen Breyer, 79), the court personnel and the lawyers, the suspension of Supreme Court arguments also carries an important lesson for the rest of the justice system: It must respond creatively to the pandemic by maintaining core operations while limiting those aspects of its usual functioning that might endanger public health. At the Supreme Court, it’s relatively easy to eliminate situations that might lead to infection. That’s because the justices in general have relatively little public interaction with the parties who appear before them.

Two years ago, Twitter Inc. Chief Executive Jack Dorsey issued 13 tweets emphasizing the need to make conversations on the platform less toxic. Mr. Dorsey said Twitter needed to work with outside researchers and hold itself publicly accountable for its progress. Now experts working with the company say those efforts have stalled, and some worry that Twitter’s commitment last week to boost growth—made in response to pressure from an activist investor—could further complicate those attempts...“For Twitter to increase its user rate quickly while also decreasing harmful content, Twitter would have to learn how to get users to post less harmful content,” said Susan Benesch, a faculty associate at Harvard University’s Berkman Klein Center who has studied online speech and is a member of the company’s council. The problem, Ms. Benesch said, is “Twitter’s leadership has talked plenty about wanting to improve civility or ‘health’ as they call it, but they’ve failed to do—or even allow others to do—the actual work.”

Treasury Secretary Steven Mnuchin said on Sunday that he would ask Congress to reinstate powers that were used during the 2008 financial crisis to support the economy as the coronavirus threatens to grind business activity in the United States to a halt. The comments suggest that the White House is bracing for a widespread downturn that could harm sectors well beyond the travel and cruise ship industries, and that the federal government could need to return to the type of crisis-era measures that were ultimately scaled back by lawmakers in the 2010 Dodd-Frank Act...Hal Scott, an emeritus professor at Harvard Law School and the director of the nonprofit Committee on Capital Markets Regulation, said the Fed must restore its ability to be the world’s most powerful lender of last resort. It was unfortunate that such authorities needed to be reinstated amid a crisis, he said. “It would have been better to do it before the crisis,” Mr. Scott said. “When you get into a crisis and you do it, there’s a concern that you’re sending a panic signal — that we’ve got to do this, we need this power.”

An op-ed by Susan Crawford: After the stock market collapsed in late 1929, many people in the United States lost their jobs. By 1932, one in four Americans was suffering from lack of food. President Hoover, enamored of the efficiency of the private market and suspicious of all foreign countries, raised tariffs and waited, confident that the market would recover and all would be well again. Government intervention, he warned, would plunge the country “into socialism and collectivism.” The world seemed dark. With the COVID-19 crisis growing worse by the hour, the federal government’s colossal mishandling of it from the start — with faulty and too few tests and President Trump’s false claims that the virus was contained — may finally wake up our complacent country. We desperately need competence and courage in our government. In 1932, Franklin Roosevelt trumpeted this message before cheering crowds, and went on to swiftly create a set of government structures based on the idea that government planning and support are necessary to keep us safe, provide opportunities to all, and ensure that no one is left out. It’s too bad that it takes a crisis to remind us what government is good for, but that’s where we are today.

An article by Cass Sunstein: Can a press release save lives? No doubt about it. At least if it comes from the Occupational Safety and Health Administration, and it publicizes a serious violation of the occupational safety and health laws. The tale begins in 2009, when OSHA initiated a new policy: If one of its inspections found sufficiently serious workplace safety violations (warranting a fine of at least $40,000), it would issue a press release, identifying the violator. According to David Michaels, the OSHA administrator at the time, press releases would be a form of “regulation of shaming.” Michaels’s hope was that the releases would have “educational and deterrent purposes for other companies in the same industry and geographic area.”

An article by Cass Sunstein: The coronavirus epidemic has produced several different kinds of crises. It is of course a public health crisis, first and foremost. But it’s also an economic crisis, an international-relations crisis and a crisis of public morale. Fear is widespread and mounting. There was no pandemic, of course, but the economic crisis was incomparably worse. And the crisis of public morale, though also much worse, had similar features. The U.S. has not been here before, but it has been in the vicinity. In some ways, the closest analogy is to the Great Depression.

The U.S. Senate overturned a major student loan forgiveness rule. Here’s what you need to know. Student Loan Forgiveness: The U.S. Senate voted 53-42 to overturn a new student loan forgiveness rule introduced by U.S. Secretary of Education Betsy DeVos that critics argue limit student loan forgiveness for students when a college closes due to fraud. All Senate Democrats and 10 Republicans voted on a bipartisan basis. ... A federal judge previously ordered DeVos to comply with the borrower defense rule. However, rather than comply with the judge’s order, the Education Department instead did the following, according to the Project on Predatory Student Lending at Harvard Law School. “The Department demanded incorrect loan payment from 16,034 students Of those students, 3,289 student borrowers made one or more loan payments because of these demands, which they were not actually supposed to pay. ..."

Democracy and capitalism coexist in many variations around the world, each continuously reshaped by the conditions and the people forming them. Increasingly, people have deep concerns about both. In a recent global survey, Pew found that, among respondents in 27 countries, 51% are dissatisfied with how democracy is working. Further, Millennials and Gen Zs are increasingly disinterested in capitalism, with only half of them viewing it positively in the United States. ... Isabelle Ferreras, Tenured fellow of the Belgian National Science Foundation, professor at the University of Louvain, and a senior research associate of the Labor and Worklife Program at Harvard Law School: Clearly not: Capitalism, as we can see across the globe, is compatible with all different kinds of political regimes: liberal democratic, communist, autocratic — and now illiberal democracies, too. Democracy is a system of government based on the recognition that people are equal “in dignity and rights” and should therefore have equal political rights. This ideal can be applied to entities of any size.

The top rated law schools in the country will all be moving to virtual instruction in order to help prevent the spread of the coronavirus. All of the T14 law schools, which hold the top rankings in U.S News and World Report, had announced plans to move to virtual instruction in the coming weeks as of Thursday. Many other law schools across the country, including those in areas among the most affected by the virus, such as Washington State and New York, have also suspended in-person classes. Harvard Law School brought broad attention to the issue of coronavirus spread with an announcement March 10 that students will be asked to go remote.

A key debate on climate change is coming into focus for November's US presidential election. Voting this week in Michigan and several other states has cemented former vice-president Joe Biden’s lead over Bernie Sanders as the person to take on president Donald Trump in November. ... A first step for any future Democratic president would be to rejoin the 2015 Paris climate accord and restore climate rules and regulations that Trump has been busy repealing, says Jody Freeman, an environmental-law specialist at the Harvard Law School in Cambridge, Massachusetts, and a former White House adviser under Obama.

Public health experts, law professors and green groups are supporting a group of children's effort to have the Ninth Circuit review a panel's decision to sink their lawsuit claiming the federal government is endangering their futures by not acting to curb climate change. Several health groups, including the American Lung Association and American Pediatric Society, and a slew of doctors, told the Ninth Circuit in an amicus brief on Thursday that the court should grant the children's en banc rehearing request because the case could help force the government to change its policies and make the greenhouse gas emissions reductions that are necessary to avoid future climate change damage. ... The public health experts are represented by Wendy B. Jacobs and Shaun A. Goho of the Emmett Environmental Law & Policy Clinic at Harvard Law School.

Texas officials prevailed in the first round of a legal fight that carries implications for the national grid, but federal courts will have more chances to shape the outlook of competitive transmission in the U.S. The Texas saga involves a state law passed last year as S.B. 1938, which essentially gives incumbent utilities first dibs on building new high-voltage power lines that serve the state. ... "The future of competitive transmission is on the line," said Ari Peskoe, director of Harvard Law School's Electricity Law Initiative. "The question will be ... if these laws are upheld by these two federal appeals courts, are other states going to follow suit?"

Harvard Law School will shift from in-person instruction to remote classes beginning on March 23, immediately following the school’s spring break, in order to limit the possible spread of coronavirus. President Larry Bacow announced the policy, which applies to the law school and the rest of the Cambridge, Mass., university’s students, on Tuesday.

The Ohio federal judge overseeing multidistrict litigation over the opioid epidemic tasked a Harvard Law School professor on Monday with helping the court navigate "novel" legal issues about how to compensate attorneys, some of whom say their payday could amount to more than $3.3 billion. U.S. District Judge Dan Aaron Polster said in a notice that William B. Rubenstein, who previously worked on the multimillion-dollar NFL concussion settlement and subsequent fee fight, is best positioned to help navigate the debate over how much attorneys will be able to take home after the dust settles on a wave of opioid-crisis lawsuits.