Media Mentions

An op-ed by Alister Martin and Cass R. Sunstein: What if long emergency room wait times, an unfortunate fact of life, could also be a key to increasing voter participation among traditionally underrepresented groups in our electorate? The demographic overlap between those who most use the ER for their health care and those who don’t vote presents a potential opportunity. In 2014, a US Census Bureau report found that nearly 1 in 4 Americans were not registered to vote. That’s over 51 million potential voting-age adults, or more than the entire population of Spain, who were not registered to vote in the United States.

Op-ed by Ashley Nunes, a research fellow at Harvard Law School:  Crash investigations are a complex affair. When a plane goes down, investigators normally spring into action. Some of these individuals work for the company that built the jet, some for the country where the jet was registered and others for the airline itself. All, however, are looking for clues about what caused the crash and what must be done to prevent another one. They do this with rigour and with attention to detail, because what we can learn from an aviation disaster should make the skies safer. That, however, is not what will happen with the tragic plane crash on Wednesday that killed 176 people, including 63 Canadians.

The Trump administration heralded its latest environmental rollback as an end to drawn-out legal brawls challenging high-profile energy and infrastructure projects. But experts say the legal implications of planned changes to rules surrounding the National Environmental Policy Act would be much less dramatic...Even if the Trump administration's changes usher in a higher threshold for NEPA-based challenges, the proposed regulations wouldn't affect current litigation, said Caitlin McCoy, a climate, clean air and energy fellow with Harvard University's Environmental & Energy Law Program. "Even once finalized, the regulations will not apply retroactively to lower the bar for NEPA analyses that were performed before it was final," she said.

Used to be that the promise of earning a sterling line on a resume and connections to stars of the legal profession was enough to lure Harvard law students to federal clerkships...The expectation is that judges and their clerks will act and make decisions based on the law, not in the interest of ideology or political party, said Charles Fried, a Harvard constitutional law professor and former solicitor general in the Reagan administration. “If the only people who will clerk for a Trump-nominated judge are the people who voted for Trump, it will drive things to further extremes,” Fried said. “It’s odd and self-defeating.” Judges without strong experience who may be too ideologically driven need smart law clerks who will offer different perspectives, he said...“We work to share available clerkship opportunities with our students, confident they will apply for the ones that best suit their interests and needs,” said Mark Weber, assistant dean for career services at Harvard Law School in a statement. “We understand that different judges appeal to different applicants for different reasons.”...Nancy Gertner, a retired Massachusetts federal judge who teaches at Harvard, said neither the president nor students should have narrow slates of judges that they are willing to consider. “You can’t be in a position to say there has to be an orthodoxy to become a judge or work for a judge,” Gertner said.

The potential impact of common ownership reaches beyond antitrust matters to questions about how companies are run. Index fund managers may follow passive investment strategies, but they don’t blindly choose stocks and sit back, says John Coates, a Harvard law professor. Fund companies have multiple tools to influence corporate behavior, such as developing preferred policies on executive compensation, carbon footprints, gender diversity, and other governance matters. They often do this in coordination with other industry leaders, Coates says. “A small number of unelected agents, operating largely behind closed doors, are increasingly important to the lives of millions who barely know of the existence much less the identity or inclinations of those agents,” Coates wrote in a widely cited 2018 paper. The agents, in this case, are the managers of fund companies—and the most important of those are the index giants...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. In a 2019 paper, he writes that the Big Three spent minuscule amounts on stewardship. According to Morningstar, Vanguard employed 21 people to do the work of corporate oversight at a cost, by Bebchuk’s estimate, of about $6.3 million—a drop in the bucket considering Vanguard’s trillions of dollars under management.

An article by Lawrence Lessig: Before the Senate begins its trial to determine whether the president should be convicted of the charges for which he has been impeached, the jury — the members of the Senate — must be sworn to service. The oath is mandated by the Constitution; its language, set by Senate rules, requires each senator to swear to “do impartial justice according to the Constitution and laws.” To swear a false oath is perjury — the crime President Bill Clinton was charged with in his impeachment. Yet given the Constitution’s speech or debate clause, a senator likely could not be charged with perjury for swearing falsely on the Senate floor. Instead, it is the Senate itself that must police members’ oaths — as it has in the past.

An article by Ashley Nunes: Crash investigations are a complex affair. When a plane goes down, investigators normally spring into action. Some of these individuals work for the company that built the jet, some for the country where the jet was registered and others for the airline itself. All, however, are looking for clues about what caused the crash and what must be done to prevent another one. They do this with rigour and with attention to detail, because what we can learn from an aviation disaster should make the skies safer. That, however, is not what will happen with the tragic plane crash on Wednesday that killed 176 people, including 63 Canadians. The jet – operated by Ukraine International Airlines – had left Tehran for what should have been a four-hour flight to Kyiv. It ended up only taking a few minutes. Air traffic controllers lost contact with the jet shortly after takeoff, and the plane’s wreckage was later found on the outskirts of Tehran.

The potential impact of common ownership reaches beyond antitrust matters to questions about how companies are run. Index fund managers may follow passive investment strategies, but they don’t blindly choose stocks and sit back, says John Coates, a Harvard law professor. Fund companies have multiple tools to influence corporate behavior, such as developing preferred policies on executive compensation, carbon footprints, gender diversity, and other governance matters. They often do this in coordination with other industry leaders, Coates says. “A small number of unelected agents, operating largely behind closed doors, are increasingly important to the lives of millions who barely know of the existence much less the identity or inclinations of those agents,” Coates wrote in a widely cited 2018 paper. The agents, in this case, are the managers of fund companies—and the most important of those are the index giants...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. In a 2019 paper, he writes that the Big Three spent minuscule amounts on stewardship. According to Morningstar, Vanguard employed 21 people to do the work of corporate oversight at a cost, by Bebchuk’s estimate, of about $6.3 million—a drop in the bucket considering Vanguard’s trillions of dollars under management.

An article by Cass Sunstein: Facebook says that it is banning “deepfakes,” those high-tech doctored videos and audios that are essentially indistinguishable from the real thing. That’s excellent news — an important step in the right direction. But the company didn’t go quite far enough, and important questions remain. Policing deepfakes isn’t simple. As Facebook pointed out in its announcement this week, media can be manipulated for benign reasons, for example to make video sharper and audio clearer. Some forms of manipulation are clearly meant as jokes, satires, parodies or political statements — as, for example, when a rock star or politician is depicted as a giant. That’s not Facebook’s concern.

Hundreds of lawyers have signed onto an open letter criticizing Senate Majority Leader Mitch McConnell for his comments saying the Senate’s upcoming impeachment trial does not have to be impartial. In the letter to the Senate, published Tuesday by the group Lawyers Defending American Democracy, the lawyers said that McConnell’s “assertions cannot withstand scrutiny"...Harvard Law professor Laurence Tribe is also among the signatories. In a phone interview Tuesday, he described McConnell’s efforts as an attempt to turn the Senate trial into a 'political whitewash.' “The reason the Framers gave the Senate the sole power to try impeachments, rather than conducting merely a poll of some political kind, is that they contempted that there would be evidence, there would be witnesses,” Tribe, who advised House Democrats during the impeachment proceedings, said. He noted that senators have to take an additional oath ahead of a Senate impeachment proceeding, and said the country “is entitled” to each senator having “an open mind and try to get to the truth.” However, Tribe predicted that not all is lost when it comes to getting witness testimony in the Senate trial.

Dominion Energy said Tuesday it selected Siemens Gamesa to supply offshore wind turbines for its 2,600-MW installation off the coast of Virginia, but the project's economics could be challenged if the wind farm is excluded from PJM Interconnection's capacity market. Dominion described the decision made through a competitive solicitation as a "significant milestone" in what is currently the largest proposed offshore wind project in the US. The wind farm will be constructed 27 miles off the coast of Virginia Beach and is scheduled to be completed by 2026, according to a statement.... "Most PJM states require utilities to meet renewable energy targets or support specific clean energy resources, such as nuclear plants or yet-to-be-constructed offshore wind farms," Ari Peskoe, Director of the Electricity Law Initiative at Harvard's Environmental and Energy Law Program, said in a blog post Tuesday. "Some of these programs could become more expensive, as clean energy resources that are unable to earn PJM capacity revenue seek additional ratepayer support," Peskoe said.

Unexpectedly, the 2020 presidential campaign is drilling down on petty crime and homelessness. Donald Trump and his Republican allies are reviving law-and-order themes similar to those used effectively by Richard Nixon and Spiro Agnew in the late 1960s and early 1970s to demonize racial minorities. To this end, Republicans seek to discredit liberalized law enforcement initiatives adopted by a new breed of Democratic prosecutors...While many of the Democratic presidential candidates have effectively joined the decarceration movement, the same unity cannot be found among House and Senate Democrats...Laurence Tribe, a professor of constitutional law at Harvard, described the thinking underpinning progressive Democratic policies broadening the rights of the homeless. In an email, Tribe wrote, "The supposed 'rights' of those who are upset or psychologically threatened by the homeless, the deinstitutionalized, or others similarly situated are what I would call second-order rights, rights that a polity cannot fairly treat as having as strong a claim to protection, as trumps that override utilitarian claims as is true of genuine rights."

Samantha Power, a former U.S. ambassador to the United Nations, would tell you that one of the most pivotal moments of her career as a war reporter, diplomat, and Pulitzer Prize-winning author occurred during a baseball game between the Atlanta Braves and the San Francisco Giants.  It was the summer of 1989, and Power had just wrapped up her first year at Yale and was working in the video booth at a CBS station in Atlanta. While taking notes on the game, she suddenly found herself engrossed in another screen depicting tanks rolling into Tiananmen Square. Up until that point, Power told an audience of  more than seven hundred at Northeastern’s Boston campus Tuesday night, she had little interest in politics, and was considering a career in sports journalism. The Tiananmen Square protests changed all of that. “My epiphany was not ‘I’m going to one day be U.N. ambassador and be a human rights lawyer;’ it was nothing so grandiose,” Power said during an installment of Northeastern’s series, The Civic Experience. “It was simply maybe there’s more to life than sports.”

An article by Noah Feldman: Has John Bolton had some sort of constitutional revelation? Back in November, President Donald Trump’s former national security adviser made it clear that he would not testify voluntarily before the House of Representatives’ impeachment inquiry, and that if subpoenaed he would go to court to ask for judicial direction. Yesterday, Bolton issued a statement indicating that if subpoenaed by the Senate during Trump’s trial, he would testify. What changed? Although Bolton gave a constitutional explanation for his flip-flop, it’s difficult to see a coherent argument in it. The most likely explanation is politics: Bolton seems to be calculating that Senate leader Mitch McConnell will do everything he can to avoid allowing Bolton to be called. That would mean Bolton can now present himself as willing to testify without actually having to appear.

An article by Noah Feldman: Mitch McConnell is giving every indication that President Donald Trump’s Senate impeachment trial will not introduce any new evidence. Instead, it will use only the evidence gathered by the House of Representatives and cited in the articles of impeachment. Is this, have some Democrats have argued, a travesty of justice? The short answer is no. There is already more than enough evidence to convict Trump of the high crimes and misdemeanors with which he is charged. And although they’ll protest, this outcome might be better for Democrats politically than striking some kind of deal with McConnell. Of course, it would be preferable for the Senate to call former national security adviser John Bolton, acting chief of staff Mick Mulvaney, Mulvaney’s adviser Robert Blair and budget official Michael Duffey. Bolton has even said he would testify if called — although the timing of his announcement, on the eve of McConnell’s, lends credence to my theory that he only offered to testify on the expectation that he would not actually have to do it.

Avid hiker Alexis Wheeler '09 founded the Harvard Club of Seattle's Crimson Achievement Program (CAP) in 2018. The initiative helps illuminate the path to college for high-potential ninth- and 10th-graders from Western Washington school districts in low-income areas

Let’s start this piece with two provocative claims. The first, which is hotly contested by legal experts, is that President Donald Trump broke the law when he ordered an airstrike that killed Maj. Gen. Qassem Soleimani, a powerful Iranian paramilitary leader. The second claim is that it doesn’t matter...There’s a great deal of disagreement among legal experts regarding when a president may lawfully target another nation. Some believe that, with rare exceptions, Congress must vote to permit such a strike. Others take a more permissive approach, arguing the president should be able to act to prevent sudden attacks on US personnel... One consequence of judicial deference is that there is fairly little case law explaining when the executive branch can and cannot take military action. Instead, most of the legal opinions in this space were drafted by executive branch officials. According to Jack Goldsmith, a professor at Harvard Law School who led the Justice Department’s Office of Legal Counsel during the second Bush administration, “Practically all of the law in this area has been developed by executive branch lawyers justifying unilateral presidential uses of force.” These lawyers, Goldsmith warned, “view unilateral presidential power very broadly.”

Former national security adviser John Bolton said Monday that he is “prepared to testify” if called as a witness by the Senate. Bolton’s attorney previously said he would be guided by the courts on whether to testify in the impeachment proceedings...Why Bolton would now decide to make himself available will be a matter of speculation...Whatever the reason, Bolton’s announcement on Monday put Majority Leader Sen. Mitch McConnell (R-Ky.), not to mention other persuadable Republican senators, in a box. Facts subsequent to the House impeachment have become known that directly pertain to Trump’s conduct and, to boot, a critical witness is now suddenly available. Do Senate Republicans try to sweep all that under the rug, risking that Bolton will later tell his story publicly and incriminate a president whose misdeeds the Senate helped cover up? That would seem intensely unwise. “This means that only McConnell and his GOP caucus stand between what Bolton says he’s ready to testify under oath in a Senate trial and the American people,” tweeted constitutional scholar Laurence Tribe. “Your move, Mitch.” House Speaker Nancy Pelosi (D-Calif.) is in the driver’s seat because she wisely held up the articles of impeachment. She can now turn to the Senate and say: Agree upon rules for the trial that guarantee Bolton’s and other key witnesses’ appearance or we will hold on to the articles and subpoena Bolton ourselves.

Ten Republican senators have signed onto Sen. Josh Hawley’s proposal to change the Senate rules to enable the chamber to dismiss President Donald Trump’s impeachment. The Missouri Republican’s proposed rules change would empower the Senate to dismiss articles of impeachment if the House fails to deliver them within 25 days of its impeachment vote. Hawley’s resolution, unveiled Monday, is a response to House Speaker Nancy Pelosi’s decision to withhold the articles of impeachment against Trump...A change to the Senate rules requires a two-thirds majority of 67 votes. Republicans only hold 53 seats in the Senate, but Hawley hinted Monday that Republicans could bypass the requirement through a tactic often referred to as the nuclear option...Laurence Tribe, a Harvard Law School professor who advised House Democrats during the impeachment process, warned that any efforts to bypass the 67-votes requirement would be “not just nuclear but thermonuclear. As long as there are any cloture rules at all, a simple majority cannot suffice to amend the Senate’s standing rules. Without cloture rules, the Senate would cease to be the Senate.” On top of that, Tribe said that if Hawley’s proposal received the 67 votes required to change a Senate rule it could apply to future impeachments but not necessarily Trump’s impeachment.

According to the American Library Association (ALA), about one fifth of the books sold in the U.S. are eBooks. Some publishers are worried that the ease of borrowing a digital book from a library is hurting sales and have decided to limit how and when libraries can access digital books. Now, libraries in Massachusetts and nationwide are vowing to fight back. They say the practices are not just unfair and unethical, but they might be illegal...Librarians are also hopeful that relief will come from a Congressional antitrust subcommittee investigating competition in digital markets...Einer Elhauge, an antitrust expert at Harvard Law School, has looked into this topic. “Antitrust law is basically competition law. It’s a law that regulates how firms can compete with each other,” he said. “So, it’s similar to a referee in a sports competition.” Elhauge parsed the arguments, and as far as he can tell from all the media reports, libraries would not have an easy time winning this case. The publishers do not seem to be violating the rules. There’s no single publishing house with monopoly power. Publishers are not “meeting in a smoke-filled room and agreeing to do the same thing,” he said.

On a freezing night in 2017, two white Boston police officers were searching for a shooting suspect. They drove up to a black teenager in Roxbury, determined he was acting suspiciously, and tried to question him. When they got out of their cruiser, the teenager fled. The Supreme Judicial Court on Tuesday will hear a case, Commonwealth v. Tykorie Evelyn, about a 17-year-old charged with murder and unlawful possession of a firearm, that centers on questions related to racial bias in policing...“Black youth have been accustomed to — and therefore expect — to be treated with suspicion by police, regardless of whether they committed a crime,” attorneys for the NAACP Legal Defense and Educational Fund and the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School wrote in an amicus brief in support of Evelyn. “And Black youth are confronted regularly with the potentially deadly consequences of noncompliance, or even perceived noncompliance, with police.”