Media Mentions

An article by Noah Feldman:  It’s a great story: the Cherokee Nation is asserting its right to send a delegate to Congress under treaties dating back to 1785 and 1835. But it is also potentially a legal puzzle in the making. The 1785 treaty says the tribe is entitled to send a “deputy” to Congress whenever it wants. But that was before the Constitution, so “Congress” was a different body — and it isn’t clear what the role of a “deputy” would have been. A quasi-permanent presence of a Cherokee representative? Or simply someone who would show up on a one-time basis to speak on behalf of the tribe?

An article by Noah Feldman:  The news that an Oklahoma court is ordering Johnson & Johnson to pay $572 million for its part in feeding the opioid crisis probably comes as a surprise to no one familiar with the weird way the United States deals with crises. From IUDs to tobacco and beyond, Americans rely on self-interested plaintiffs’ lawyers to sue deep-pocketed manufacturers – and on state courts to impose big verdicts that are meant to redistribute wealth from companies and their shareholders to state taxpayers and (sometimes) victims. It’s worth pausing to notice the extremely bizarre structure of this uniquely American practice – and to wonder whether it achieves the social goal of creating incentives to avoid the next public health crisis.

An op-ed by Nancy Gertner:  It doesn’t seem to matter who sits in the US attorney’s office when it comes to prosecuting union members or the politicians who advocate for them. Democratic appointee Carmen Ortiz prosecuted Joseph Burhoe and John Perry of Teamsters Local 82 for extorting nonunion employers to hire union workers at various fund-raising events. She also prosecuted four Teamsters in connection with the 2014 filming of the reality TV show “Top Chef.” While Ortiz began the prosecution of Walsh administration officials Kenneth Brissette and Timothy Sullivan for Hobbs Act violations in connection with their efforts to get union jobs at the Boston Calling music festival, the case against them was enthusiastically finished by Republican appointee Andrew Lelling.

The average business manages between 20,000 and 40,000 contracts at any given time. With that kind of volume, and the risk of compounding inefficiencies in time and cost, firms simply can’t afford to get contract management wrong...There is a key component of contracting, however, that is being overlooked—collaboration...Research from Harvard Law Distinguished Fellow Heidi Gardner has found that average revenue per customer rises among firms that have a high degree of collaboration. Better collaboration enables organizations to recognize and elevate employee contributions.

The president’s ability to index capital gains to inflation has been widely viewed as illegal, although supporters see hope in recent legal developments...Regardless of the legal questions, it’s unclear whether someone could show they were injured by the policy change in order to have standing to try to stop it in court. Hemel and Kamin identified at least one example that could meet standing requirements: if a taxpayer were to see their overall tax liability increase because indexing caused them to lose out on charitable giving deductions. This hypothetical seemed to fit into the traditional approach to standing in tax cases where a taxpayer is complaining about their own higher liability, according to Howard E. Abrams, a visiting professor at Harvard Law School who agreed presidential indexing would be illegal.

A newly proposed Trump administration rule would allow for weaker monitoring of methane, a major greenhouse gas contributing to global warming. The proposed rule rolled out Thursday morning by the Environmental Protection Agency (EPA) would eliminate current requirements on oil and gas companies to install technology to monitor methane emissions from pipelines, wells and facilities...“I would say it’s a lose-lose-lose. It’s a bad environmental outcome, it’s a bad outcome for what the industry itself is now saying it needs, and it’s pretty much outright sabotage of the EPA’s own legal authority and what the Clean Air Act was enacted to accomplish,” said Joseph Goffman, who helped develop the Obama-era regulations on methane at EPA and now serves as executive director of the Environmental & Energy Law Program at Harvard Law School.

Attorney General William P. Barr has booked a ballroom in President Trump’s hotel for his annual holiday party, an event that he could spend tens of thousands of dollars on and that drew criticism from ethics experts. Mr. Barr booked the Presidential Ballroom at the Trump International Hotel for a 200-person holiday party that he holds every year. It could cost more than $30,000, according to a Justice Department official, speaking on the condition of anonymity to discuss a nongovernment function. His decision to hold the event at the Trump hotel comes as the Justice Department works to defend Mr. Trump against charges that he is trying to profit from the presidency...Laurence H. Tribe, a professor of constitutional law at Harvard Law School and a vocal critic of the Trump administration, said he did consider the contract a “tasteless” decision that would harm Mr. Barr’s reputation, but not an impeachable offense.

Students enrolling at Harvard’s Business School, Law School, and Graduate School of Education (HBS, HLS, HGSE) for M.B.A., J.D. and LL.M., and Ed.M. degrees now can—and in some cases must—begin their programs of study before matriculating. Making use of the summer before the new academic year, each school has linked a new kind of instruction with online technology to introduce entering students to content critical to their coursework and, for HBS and HLS, their distinctive pedagogies...Shortly after he became dean of the law school in mid 2017, as part of his plans for online education, John F. Manning expressed interest in developing a common learning experience “meant to ensure that all incoming students, whatever their backgrounds and previous areas of study, start with the foundational knowledge that will enable them to thrive at HLS,”as a Harvard Law Today (HLT) report put it...Attwood and Williams professor of law I. Glenn Cohen, who had taught an online course on the HarvardX platform and also leads a first-year section, was tapped to lead the faculty group developing a pilot program—not least, he said, because he “thought it was a supercool project.” One reason for that, Cohen explained, derived from his own “origin story”: he was a first-generation college student, too (neither parent finished high school); there were no lawyers in his family; because he had studied bioethics (philosophy) and psychology, coming to HLS was a “big transition” (he is J.D. ’03); and as a native of Canada, “I knew nothing about the U.S. legal system.”

Last month, Roxanne Armbruster joined Harvard Law School as assistant dean and chief human resources officer. She brings a wealth of private and public sector experience to the position, having served as director of business operations at Ropes & Gray in Boston, as human resources business partner at TJX Companies and as a yeoman for eight years in the U.S. Coast Guard. In a conversation with Harvard Law Today, she talks about her wide-ranging career experiences, from tending buoys in Maine to building an HR business partner model in Boston.

Harvard Law School has announced the launch of its new animal law and policy clinic, as the number of institutions in the states offering Animal Law courses skyrockets. The new clinic, part of the school's Animal Law & Policy Program, covers a range of issues 'affecting farmed animals, wildlife, animals in captivity, and the overarching threat to all forms of life from climate change'...The clinic will be led by Visiting Assistant Clinical Professor Katherine Meyer and Clinical Instructor Nicole Negowetti, while recent HLS graduate Kate Barnekow JD '19 will be returning as the first Clinical Fellow, and Sarah Pickering will be joining the team as Communications Manager. "Animal law is a vitally important and rapidly growing field," said Harvard Law School Dean John F. Manning. "Our new Animal Law & Policy Clinic will give students real-world experience in this burgeoning field, build on Harvard Law School’s long tradition of innovative pedagogy, and prepare future graduates to address significant societal challenges."

President Trump stepped into another controversy of his own making Monday by suggesting the U.S. could host world leaders at his golf resort outside Miami for next year's Group of Seven (G-7) summit. If Trump were to make his resort the meeting venue, his critics argue it would be another clear violation of the Constitution’s Emoluments Clause, which prohibits presidents from accepting payments from foreign countries, U.S. states or the federal government. ... Laurence Tribe, a Harvard Law School professor, tweeted that Trump’s pitch was “Emolumentally clear! Trump keeps proving that he is deliberately violating the Constitution’s main safeguard against financial corruption and compromise of presidential decisions by foreign powers.”

Sen. Bernie Sanders proposed a $16.3 trillion climate plan Thursday, an expansive blueprint meant to enlarge American ambitions on combating planetary warming in a presidential campaign already marked by aggressive Democratic approaches...“I see these proposals as both markers and mobilizing tools,” said Jody Freeman, who was a climate adviser to Obama and now teaches at Harvard Law School. “They are a marker that says, ‘We care about climate change. We really, really do.’ And they are a mobilizing tool because we are in a primary and the idea is to try to attract the left side of the spectrum.”

Early Wednesday morning, federal agents arrested the former president of the Massachusetts State Police union and the group's Beacon Hill lobbyist at their respective houses in Worcester and Hull. The Massachusetts U.S. attorney is charging Dana Pullman and Anne Lynch with conspiracy and obstruction of justice — accusing the two of running a scheme that gathered thousands of dollars in illegal kickbacks. Guests [include]...Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, WBUR legal analyst.

U.S. Citizenship and Immigration Services notified local immigration attorneysthat asylum officers from Boston will be sent to the southwest border with Mexico to address the influx of asylum seekers there. It's a move Boston immigration attorneys say will impact their clients' chances of asylum. Guests [include]...Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, WBUR legal analyst.

A recent op-ed from a progressive advocacy group that called on future Democratic presidents to shut Big Law partners out of consideration for the federal judiciary has prompted an uproar of opposition in some corners of the bar while others are nodding their heads. Law professors, plaintiffs-side trial lawyers, students, public defenders and Big Law lawyers have taken to social media in the past two days to express a full range of feelings on a proposal appearing in the Atlantic by the group Demand Justice to cut “corporate” lawyers from Democratic presidential hopefuls’ lists of potential nominees to the bench...Nancy Gertner, a former federal judge in Massachusetts who is now a professor at Harvard Law School, agreed that diverse backgrounds should be a factor for considering future judges, but also spoke out against a bright-line rule against Big Law. She chairs a committee that advises Massachusetts’ senators on good picks for the federal bench, and she noted that it has put forth employment lawyers, environmental lawyers and other nontraditional candidates because it has cast a wide net.

Earlier this month, the U.N. Intergovernmental Panel on Climate Change released a dire report highlighting the enormous environmental impact of agriculture. But the report also pointed to a clear way for us to feed more mouths without causing more planetary destruction: We can stop wasting food...Standardizing date labels could also make a difference. They became common in the 1970s as a marker of food quality, but many of us today wrongly assume that once the “sell by” date has passed, the food’s spoiled. In fact, these dates are often a manufacturer’s arbitrary estimate of when the food will taste most fresh — and different states have different standards. The result is we throw out loads of food that’s still fine to eat, according to Emily Broad Leib, director of the Harvard Law School Food and Policy Clinic.

Senator Bernie Sanders of Vermont on Wednesday rolled out an ambitious plan to strengthen organized labor in the United States, setting a goal of doubling union membership in his first term as president...The plan “is an important recognition of the fact that tinkering around the edges isn’t going to be enough to return power to American workers in our economy,” said Sharon Block, a former National Labor Relations Board member appointed by President Barack Obama, who is executive director of the Labor and Worklife Program at Harvard Law School.

It is no longer so unusual for people to show spontaneous online appreciation for the place they work — or, more often, the people they work with. But when Amazon “fulfilment centre ambassadors” took to social media this month to defend the company against criticism of working conditions, Twitter’s inauthenticity klaxon sounded immediately. Amazon has been coy about the details, stating the ambassadors — who first became visible a year ago — are real warehouse staff and part of a wider education programme that also includes tours of fulfilment centres. Twitter users dealt with this creepy public relations campaign in the way they know best, trolling Amazon’s dime-a-dozen diplomats and imitating the accounts so it became impossible to distinguish reality from parody. Terri Gerstein, a former labour lawyer now at Harvard Law School, pointed out on Slate that the initiative was part of a more general rise in “ventriloquist employers” that use “workers as a prop to serve company interests”.

Nathan Carman is either a criminal mastermind, or the victim of a series of unfortunate, fatal events. His aunts say he shot his multimillionaire grandfather to death in 2013, and killed his mother on a fishing trip in 2016 to get a portion of the family’s $44 million estate. But 25-year-old Carman has so far eschewed criminal charges, let alone gone to criminal court...After a six year legal battle that depicts the inner workings of an upper-class New England family, which feels like something out of the show Revenge, what finally lured Carmen to a witness stand in Rhode Island’s federal courthouse Thursday, was an $85,000 boat insurance claim...Nancy Gertner, a Harvard Law professor and former federal judge, also says Carman’s testimony in the boat insurance trial “could be used in the homicide case” and handed over to a prosecutor. And Carman could have avoided all of this if he backed down from the $85,000 claim. But he didn’t.

Newspaper publisher Conrad Black, who disagrees with just about everything she does and believes, says, “she would get my vote as an ecumenical saint.” Alan Dershowitz, who disagrees with only most of what she does and believes, says he would “trade her for two American Supreme Court justices and a draft choice to be named later.” Ruth Bader Ginsburg, who probably agrees with her on just about everything, says she is “proud to count her among dearest sisters-in-law.”...Martha Minow, onetime dean of Harvard Law School, calls her work “pathbreaking.

Controversy over laws prohibiting members of the Electoral College from voting their conscience rather than the presidential candidate who won their state appears headed to the U.S. Supreme Court. A challenge is likely now that a federal appellate ruling this week split the courts over whether states can lawfully remove or sanction “faithless electors,” or those who stray. An unsual number did so in 2016 in the election of President Donald Trump. Harvard Law professor Lawrence Lessig, who founded the progressive non-profit Equal Citizens, said Electoral College outcomes are going to get closer, raising the possibility of a small number of electors changing an outcome. “Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election,” Lessig said.