Media Mentions

If you hold a stock market index fund, congratulations. The S+P 500’s total return was a thumping 31.5% in 2019, and a fund that passively tracks that benchmark delivered almost all those gains, minus a tiny fee—perhaps just 0.04% of assets. Now here’s something you probably weren’t thinking about when you clicked on the box to choose an index fund in your 401(k) or IRA: You were also part of one of the biggest shifts in corporate power in a generation...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.

An article by Laurence Tribe: The United States is living through a remarkably convulsive period in its history. Donald Trump has reshaped the American presidency, and his norm-shattering behavior has tested the US Constitution in profound ways. He has placed stress on points of constitutional vulnerability, particularly when it comes to judicially unenforceable norms of respect for fact-based reality, for orderly decision-making, and for investigatory and prosecutorial independence. Trump’s rise to power has also raised questions about some of the Constitution’s most solidly entrenched provisions. His victory in 2016 highlighted the dangers posed by the Electoral College in the face of changing demographic realities, and now his presidency is testing the viability of the impeachment process to cope with a demagogue who has captured the machinery of an entire political party and controls one chamber of Congress.

A new law in California seeks to rewrite the rules of work and what it means to be an employee. Known informally as the gig-economy bill, or AB5, the legislation went into effect on Jan. 1, seeking to compel all companies ― but notably those like Lyft and Uber ― to treat more of their workforce like employees. The law represents a cataclysmic shift for workers who depend on apps to get gigs, and it has inspired similar efforts in New York, New Jersey and Illinois. Heavyweight presidential candidates like Elizabeth Warren and Bernie Sanders have championed the measure...A coalition of tech companies have pledged a reported $110 million for a new measure on the November ballot to exempt app-based drivers. Lyft and Uber, which together have more than 500,000 drivers in California, say they believe the law does not apply to their drivers, while simultaneously pursuing other avenues to exempt themselves from its provisions... “We are in this place because we have these really big companies that will put tens of millions up for the right to deny basic protections for workers,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School.

Three or four? It’s a question being hotly debated as House Speaker Nancy Pelosi (D-Calif.) prepares to transmit the articles of impeachment against President Trump to the Senate for trial. Will it take four Republican senators to buck Majority Leader Mitch McConnell (R-Ky.) and force the Senate to consider additional testimony and documents? Or could the votes of just three Republicans — bolstered by Chief Justice John G. Roberts Jr. — do the trick? The answer to the question hinges on the role of the chief justice, who the Constitution specifies shall “preside” over the trial...In any other setting besides the trial of the president, a 50-50 Senate tie would be broken by the vice president, who under Senate rules occupies the position of “presiding officer” in an impeachment trial. But the chief justice fills that role in the case of a presidential impeachment, which raises questions about whether he should behave any differently. Many have argued that the chief justice will play a strictly honorary role at the trial, with no substantive input whatsoever...Harvard Law School professor Laurence Tribe told me he “agree[s] strongly that the role is not solely honorific or purely decorative.”

Soon after a US drone strike killed Iranian Maj. Gen. Qassem Soleimani in Iraq earlier this month, President Donald Trump’s re-election campaign began touting the “swift actions of our Commander-in-Chief” in paid Facebook ads that cast the killing in a positive light. When it comes to posts that appear to support the dead general, however, it’s a different story: The company is employing some questionable legal reasoning about US sanctions law to justify deleting such content from its subsidiary, Instagram... “Facebook appears to be equating political or legal opposition to the Trump administration’s killing of Soleimani with indirect support for Soleimani himself and thus analogizing it to properly forbidden material assistance to non-state terrorist groups,” Harvard Law School professor Laurence Tribe wrote in an email. “Any such equation wades deep into clearly forbidden speech-suppressing territory, well beyond what even the majority in Holder v. Humanitarian Law Project authorized as consistent with the First Amendment.”

One can only imagine what evidence we have yet to see during the impeachment proceedings against President Trump. With each new tranche of evidence — including emails regarding the hold on military aid to Ukraine and now documents from Lev Parnas, an associate of Trump lawyer Rudolph W. Giuliani’s — the conclusion that Trump abused power and obstructed the investigation becomes incontrovertible. The Post reports: “Three House committees sent dozens of pages of new evidence to the House Judiciary Committee ahead of Wednesday’s transmission of the articles of impeachment, ramping up pressure on Trump to provide Congress with additional documents related to his efforts to get Ukraine to announce an investigation into the Bidens"...Constitutional scholar Laurence Tribe tells me the new evidence is " jaw-dropping" and “highly incriminating of both Giuliani and Trump.” Tribe says, “It’s bound to find its way into the Senate trial after Parnas is deposed by the House Judiciary and Intelligence committees, as he’s bound to be.” Tribe continues, “The Giuliani letter presenting himself to Zelensky as representing Donald Trump in his private capacity at a time when Zelensky was the president-elect of Ukraine is remarkable in itself. It is a kind of hologram of the whole Ukraine-gate scandal.”

Sen. Elizabeth Warren, D-Mass., has pledged to cancel up to $50,000 of debt for 95% of student loan borrowers if she is elected president. Sen. Bernie Sanders, D-Vt., has proposed an even more generous plan if he's elected. Both are bold, controversial pitches that would have a hard time making it through a divided Congress. But on Tuesday, Warren announced she would use a little-known shortcut, and wouldn't need Congress. As president, she says, she could cancel the debts of tens of millions of student borrowers all on her own. It turns out, she's probably right...43 million student borrowers owe the U.S. government $1.5 trillion, according to the U.S. Department of Education. And until now, the department has only offered student loan forgiveness or cancellation to borrowers who meet certain criteria. "Maybe it's because they've been working in a public service position or because they become disabled or because they're saying that their school fundamentally cheated them," says Eileen Connor, legal director of the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School. "Those pathways exist. And I think what Sen. Warren's proposal is pointing out is that there's also this freestanding power that the secretary of education has to cancel debts, not for those reasons, but really for any reason at all."

An article by Noah Feldman: If you’re expecting President Donald Trump’s impeachment trial in the U.S. Senate to be a matter of high drama, it’s time to lower your expectations. The trial won’t look much like “Law & Order,” or for that matter any other criminal trial you’ve seen on TV or in real life: There will be no witnesses in the opening phase, and likely none at any point in the proceedings. Instead, it will look much more like a series of speeches by the House impeachment managers and Trump’s lawyers. How can it be that the impeachment trial will barely be a trial at all? The answer lies in the Senate’s own changing practices over the centuries. Given the Senate’s love for protocol, you might imagine that there would be some time-tested, universally respected procedure for how an impeachment trial should go. The truth is otherwise.

An article by Laurence Tribe: The case for calling witnesses in the Senate’s impeachment trial of President Trump, and for subpoenaing documents that the White House has withheld from Congress, is now too compelling to deny. There is so much public support for hearing all the relevant evidence, and not just among Democrats, that it is becoming politically toxic for increasingly many senators to resist doing so. Senate majority leader Mitch McConnell’s efforts to bury the truth and turn the trial into a whitewash with a quickly delivered foreordained conclusion have all but come to naught, thanks in large part to the patience and savvy of House Speaker Nancy Pelosi, who wisely resisted the pressure to transmit the two articles of impeachment within days of the House vote impeaching Trump. If it’s already clear that the witnesses whom the president has successfully silenced thus far, despite their firsthand knowledge of what he knew and when he knew it in the context of shaking down Ukraine for his personal benefit, are indeed likely to be called, why take the trouble of saying more about the need for them to appear in the impeachment trial?...The reason is that we cannot afford to leave any stone unturned when dealing with as lawless and fickle a presidential administration and its Senate accomplices as the Trump/McConnell cabal has shown itself to be.

One of the talking points that supporters of President Donald Trump have been using in defense of the killing of Iranian military commander Qasem Soleimani on January 3 is that the killing is no different from the operation that resulted in the death of al-Qaeda leader Osama bin Laden in 2011 under President Barack Obama. But bin Laden, unlike Soleimani, was not a government official. And constitutional law professor Laurence Tribe is asserting that the Soleimani killing amounts to a “summary execution without trial” rather than an act of self-defense. Last week on Twitter, the 78-year-old Tribe (who co-founded the American Constitutional Society and teaches at Harvard Law School) posted, "In the fog of war, it’s easy to lose track of what counts. Whether Soleimani posed an ‘imminent’ threat that killing him would assuredly end isn’t just a debate over labels. It’s the difference (between) self-defense to protect Americans and murder to stave off Trump’s impeachment.”

The Seattle City Council voted Monday to ban most political spending by “foreign-influenced corporations,” in a move that could hinder attempts by multinational tech titans to influence the city’s elections. The legislation’s architect, Council President M. Lorena González, has said she believes the ban will apply to Amazon, despite the company being based here, because it will cover businesses substantively owned by foreign investors. The measure will close a loophole because foreign individuals and foreign-based entities already are barred from making contributions in United States elections, González said Monday...Federal Election Commissioner Ellen Weintraub encouraged the council to move ahead with the idea, as did Harvard Law School scholar Laurence Tribe. The Seattle Ethics and Election Commission and Washington State Public Disclosure Commission shared support.

The Supreme Court on Monday declined to take up an appeal filed by Michelle Carter of Plainville. Her boyfriend, Conrad Roy, killed himself in 2014 and Carter was convicted of involuntary manslaughter for encouraging him to do so. Her team said the conviction violated Carter's First Amendment rights. WBUR legal analyst Nancy Gertner is part of that defense team — she's also a retired federal judge, and senior lecturer at Harvard Law School. She joins us to discuss the case.

In recent days, Senate Majority Leader Mitch McConnell has floated the idea that the Senate might vote to dismiss the articles of impeachment against President Trump without ever holding a trial. Harvard Law professor Laurence Tribe, who helped House Democrats draft the articles of impeachment in the first place, told Salon this week McConnell has no right to do that. Senate rules dating to 1886, Tribe said, give the upper chamber of Congress "no jurisdiction to begin its impeachment trial until the articles have been submitted by the House to the Senate." Until that happens, he continued, the Senate "cannot purport to dismiss the articles that would trigger the trial. The House retains jurisdiction, under the rules it has duly enacted, until it selects impeachment managers and transmits the articles of impeachment to the Senate."

Senator Elizabeth Warren announced Tuesday that if elected president, she will use executive authority to cancel student loan debt on her first day in office. Warren introduced a sweeping plan in April to forgive massive amounts of student loan debt for middle-class Americans, but her new proposal argues that the Department of Education already has “broad legal authority” to cancel student debt without Congressional approval. The Secretary of Education has unrestricted authority to cancel existing student loan debt under the Higher Education Act, legal experts at Harvard Law School’s Legal Services Center wrote in response to the plan. “This authority provides a safety valve for federal student loan programs, letting the Department of Education use its discretion to wipe away loans even when they do not meet the eligibility criteria for more specific cancellation programs like permanent disability discharge,” Warren said in the plan, released ahead of Tuesday night’s Democratic presidential debate in Iowa. Under the plan, Warren would cancel up to $50,000 in debt for about 42 million borrowers as well as ensure that the loan cancellation won’t be taxed as income.

An article by Nancy Gertner: It’s common to hear television commentators intone about how an impeachment trial in the Senate is “just” a political process, not a legal one, as if that means a free for all, the typical horse-trading of a legislative session. While the Constitution is not often specific, when it comes to impeachment, the words are fairly clear, especially on the issues now being debated: Should there be live witnesses at a Senate trial? How impartial should the senators be? Should there be additional evidence in the Senate that was not produced before the House?...One thing, though, hasn’t changed. Jurors then and now take an oath to be impartial — just like the Senate’s impeachment oath...In fact, the reason why the Framers rejected having impeachment in the Supreme Court, according to Harvard Law Professor Larry Tribe and Georgetown Law Professor Joshua Matz, was not just that they knew the Court could include justices appointed by the sitting president; they reasoned that the Senate’s sheer size as compared to that of the Court would safeguard against corruption.

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.