Media Mentions

An EPA advisory panel's sharp rebukes of the Trump administration's Clean Water Act protections and vehicle emissions standards have provided a partial blueprint for how critics could challenge the rules in court. EPA's Science Advisory Board (SAB), which includes many members selected by the Trump administration, last week finalized striking criticisms of the agency's proposed Safer Affordable Fuel-Efficient Vehicles Rule and its recently narrowed definition of the "waters of the United States," or WOTUS. ... In contrast, a court could reprimand EPA for disregarding such guidance without a rational explanation for that decision, said Joseph Goffman, an Obama-era EPA official who is now at Harvard Law School. "The way the D.C. Circuit expressed itself really invited the inference that if the agency hadn't aligned itself in a thoughtful way with the science advisers, the court would have made a different decision," he said.

An article by John Bowers and Jonathan Zittrain: Corporate pronouncements are usually anodyne. And at first glance one might think the same of Facebook’s recent white paper, authored by Monika Bickert, who manages the company’s content policies, offering up some perspectives on the emerging debate around governmental regulation of platforms’ content moderation systems. After all, by the paper’s own terms it’s simply offering up some questions to consider rather than concrete suggestions for resolving debates around platforms’ treatment of such things as anti-vax narratives, coordinated harassment, and political disinformation. But a careful read shows it to be a helpful document, both as a reflection of the contentious present moment around online speech, and because it takes seriously some options for “content governance” that–if pursued fully–would represent a moonshot for platform accountability premised on the partial but substantial, and long-term, devolution of Facebook’s policymaking authority.

Veterans call it “bad paper.” In a Pulitzer Prize-winning series of stories reported in 2013, The Gazette found that more soldiers than ever are receiving “bad paper”, which means they are receiving “other than honorable” discharges for some sort of misconduct ranging from drug use to insubordination. ... Just because a discharge is “other than honorable” doesn’t mean that a vet doesn't qualify for medical benefits, according to the VA’s own rules. But the new study by the Veterans Legal Clinic at Harvard Law School says the VA has unlawfully turned away thousands of veterans with other-than-honorable discharges because officials at the VA systematically misunderstood the law and didn’t review the vets’ applications properly.

The delivery of legal services to low income consumers is being transformed by automation technology such as TurboTax-like forms for people facing eviction, and that transformation only shows signs of picking up steam as researchers continue to mine its potential for legal aid. Among those access to justice experts, there's hope that automation technology can one day identify clients who don't even know they have a legal issue...Matthew Stubenberg, associate director of legal technology at Harvard Law School’s access to justice lab, is exploring the ways that technology could help legal aid organizations identify people with legal needs who themselves don’t even know they need to reach out to a lawyer. Where some legal aid organizations are headed, he said, is toward implementing systems that could eventually allow them to collect and review public data that will alert them that a given person could have a legal need, which would allow them to reach out and offer their services. As legal aid organizations continue to implement data-gathering as part of their delivery of services, they will be able to move toward developing artificial intelligence tools, Stubenberg explained. Some potentially relevant public records could include water bills and homeowner records, for example. If a tenant stops paying their water bill and the owner of that building has a record of wrongful evictions, an eviction case could be flagged as a possibility, he said. “Once that’s done they will be able to identify people with these legal issues and move forward much faster with helping them, from when people had to identify their problems themselves,” he said.

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.