Media Mentions

In July, Secretary of State Mike Pompeo announced a new Commission on Unalienable Rights. This new commission will distinguish between the “unalienable rights” of the 1948 United Nations Universal Declaration of Human Rights and “ad hoc rights” added after the Cold War. By making this distinction, based upon a deeply conservative definition of human rights, however, Pompeo’s commission will actually threaten sexual equality, LGBTQ rights and reproductive health globally. Pompeo’s definition of “unalienable rights” draws on the ideas of a legal scholar who has staked her career on making a stark distinction between human rights and women’s rights. Mary Ann Glendon is a Harvard Law School professor, former U.S. ambassador to the Vatican and outspoken opponent of same-sex marriage and abortion. Pompeo has not just drawn on Glendon’s ideas but also appointed her as the head of the new commission. According to Glendon, “Human rights are women’s rights. … But it is not the case that whatever a particular nation state decides to call a woman’s ‘right’ is necessarily a universal human right.”

Attorneys general from about two dozen Democratic states are challenging the Trump administration’s rollback of one of President Obama’s signature climate regulations. But what the blue state lawyers are really worried about is how the rule may limit future administrations from tackling heat-trapping pollution. ... The case, filed in the U.S. Court of Appeals for the D.C. Circuit, could wind its way to the Supreme Court should Trump win a second term and stop a Democratic rival from repealing his rule before it reaches the high court. "No doubt, it’s going to be a grinding legal battle," said Jody Freeman, founding director of Harvard Law School's the environmental law program.

...This month is the 400th anniversary of that ship’s arrival. To commemorate this historic moment and its legacy, The New York Times Magazine has dedicated an entire issue and special broadsheet section, out this Sunday, to exploring the history of slavery and mapping the ways in which it has touched nearly every aspect of contemporary life in the United States. The 1619 Project began as an idea pitched by Nikole Hannah-Jones, one of the magazine’s staff writers, during a meeting in January.  ... Those involved knew it was a big task, one that would require the expertise of those who have dedicated their entire lives and careers to studying the nuances of what it means to be a black person in America. Ms. Hannah-Jones invited 18 scholars and historians — including Kellie Jones, a Columbia University art historian and 2016 MacArthur Fellow; Annette Gordon-Reed, a professor of law and history at Harvard; and William Darity, a professor of public policy at the Samuel DuBois Cook Center on Social Equity at Duke University — to meet with editors and journalists at The Times early this year.

An op-ed by Cass Sunstein: Can a new regulation be something to celebrate? If it stands to save lives, absolutely. Here’s one that does: the Food and Drug Administration’s new proposalrequiring warnings, including graphic images, on cigarette packages and in cigarette advertisements. The regulation, now out for a 60-day comment period, also appears to fix the problems that hobbled previous attempts to mandate graphic cigarette warnings. It’s been 10 years since Congress first directed the FDA to require graphic warnings, and that job was supposed to be done by mid-2011. The FDA duly aimed to meet the deadline, proposing labels that were indeed graphic. (As administrator of the Office of Information and Regulatory Affairs at the time, I helped oversee that process.) But the tobacco companies convinced a federal court that, by compelling speech, the FDA’s regulation violated their First Amendment rights.  

An op-ed by Noah Feldman: If you’re trying to figure out China’s next move in Hong Kong or how India will proceed in Kashmir, here’s a clue: follow the logic of an empire. China and India each inherited control from the British Empire, and are following a script that could have been written a century or more ago. Both governments probably have more legitimacy among their subjects than the British Empire had, but that’s beside the point when it comes to their reasons for acting today. Start with China, which got Hong Kong back from the U.K. in 1997. China promised “one country, two systems,” an arrangement that was supposed to allow a common-law-style judiciary to continue operating in the former British colony. Yet, it’s not as though Hong Kongers enjoyed democratic self-government under the British. The handover of Hong Kong was the exchange of one imperial sovereignty for another. The government of the People’s Republic of China was just much closer at hand, and had a stronger traditional claim to the territory.

Attorneys general from about two dozen Democratic states are challenging the Trump administration's rollback of one of President Barack Obama's signature climate regulations. But what the blue state lawyers are really worried about is how the rule may limit future administrations from tackling heat-trapping pollution. ... The case, filed in the U.S. Court of Appeals for the District of Columbia Circuit, could wind its way to the Supreme Court should Trump win a second term and stop a Democratic rival from repealing his rule before it reaches the high court. "No doubt, it's going to be a grinding legal battle," said Jody Freeman, founding director of Harvard Law School's the environmental law program.

The founder of bombastic sports website Barstool Sports is the latest boss to potentially face an unfair labor practice complaint for an anti-union tweetstorm threatening workers who talk to union attorneys. ...Federal law allows managers and other agents of a company to criticize unions, but restricts them from threatening to punish employees who organize. “As an employer, you can hate unions, denigrate unions, oppose unions,” said University of Wyoming law professor Michael Duff, a former NLRB attorney. “But you may not, in reaction to real or imagined concerted employee activity, make statements containing threats of reprisal” like Portnoy’s. “Under any reading of the federal labor law, telling workers that they’re going to be fired if they seek advice or help about a unionization campaign is flatly illegal,” said Harvard law professor Ben Sachs. “In my estimation, even the Trump NLRB would consider that illegal.”

In his 2,300-word manifesto, the gunman who killed 22 people in El Paso earlier this month laid out his views on many topics including the environment, corporations, economics, automation and, most forcefully, the “invaders” who arrive in the United States from other countries. Speaking of Democrats, he wrote, “They intend to use open borders, free healthcare for illegals, citizenship and more to enact a political coup by importing and then legalizing millions of new voters. Compare those thoughts to what Fox News host Tucker Carlson said on air on May 17. In a standard anti-immigration riff, Carlson laid out what he saw as the partisan dimensions of the topic ...[I]t’s hard to avoid Fox News’s influence on immigration or any other contemporary controversy, especially for those inclined to seek out conservative news on the Internet. The influence is malign, too. Yochai Benkler, a scholar affiliated with Harvard’s Berkman Klein Center, has studied the network’s ability to seed its ideas across the web. He told The Post last year: "Our data repeatedly show Fox as the transmission vector of widespread conspiracy theories. The original Seth Rich conspiracy did not take off when initially propagated in July 2016 by fringe and pro-Russia sites, but only a year later, as Fox News revived it when James Comey was fired. The Clinton pedophilia libel that resulted in Pizzagate was started by a Fox online report, repeated across the Fox TV schedule, and provided the prime source of validation across the right-wing media ecosystem.

Mayor Bill de Blasio on Monday joined a host of prominent figures in sharply questioning how Jeffrey Epstein died in an apparent suicide in federal jail, insisting that he was not dabbling in conspiracy theories even as he echoed them.... Other prominent figures, including former Mayor Rudolph W. Giuliani, President Trump’s personal lawyer, Joe Scarborough of MSNBC’s “Morning Joe,” Representative Al Green, a Democrat of Texas, and Laurence Tribe, a Harvard law professor, all said on Monday that they did not need to wait for an official investigation to assert that something did not add up.... Professor Tribe, who teaches constitutional law at Harvard and who has a social media following of more than half a million people, said on Twitter on Saturday that “you don’t have to be a conspiracy theorist to see an evil cover-up to protect lots of powerful men here.”

U.S. Attorney General William Barr says the Department of Justice has found "serious irregularities" at the Manhattan jail where financier Jeffrey Epstein apparently killed himself over the weekend. Media reports suggest Epstein was left unsupervised at the time of his death despite a prior suicide attempt in July. Barr also said today that Epstein's death won't stop the investigations into his alleged sex trafficking of young women. Guest Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, WBUR legal analyst.

...[S]he lives in New Jersey, the only state where it remains illegal to sell homemade foods for profit, so she can only give away her creations or donate them to bake sales. If she tried to sell them, she could be fined up to $1,000. Every other state has dropped such restrictions. ...In just the last decade, 19 states and the District of Columbia have moved to allow sales of homemade foods, said Emily Broad Leib, the director of the Harvard Law School Food Law and Policy Clinic and a lead author of an August 2018 report that documented a “dramatic increase in small-scale food production” nationwide. ... In 2013, the institute started the National Food Freedom Initiativeto challenge restrictions on laws related to food. The New Jersey bakers reached out to the institute in 2016 after reading about its work nationwide, including lawsuits in Wisconsin and Minnesota that significantly expanded cottage food laws there. A lawyer from the institute, Erica Smith, is lead attorney on the New Jersey suit. “States aren’t doing this on their own,” Ms. Broad Leib said. “They’re doing it because they’re pressured to pass these things.”

When word got out earlier this year that law professor Ronald Sullivan Jr. had joined Harvey Weinstein’s legal defense team, all hell broke loose at Harvard College. Students protested, #MeToo activists clamored, and the school administration ultimately terminated his appointment as the in-residence faculty dean of an undergrad dorm. But Sullivan—who’s spent his career securing exonerations for the wrongfully convicted and representing notable figures such as Aaron Hernandez—is no stranger to controversy. Which might explain why, as he prepares to move off-campus for the first time in 10 years, he was eager to meet in his office and talk about the circumstances prompting his sudden change of address.

Activist funds face an uphill effort getting the votes they need to effectuate change. That’s the view of Mark Roe, professor of Law at Harvard Law School. Roe spoke with The Deal for its Activist Investing Today podcast about why he thinks that observers should be wary about blaming activist hedge funds for perceived short-termism in the markets. “They [activists] have to have a really persuasive explanation for why something should change in their target company, enough so that index funds, pension funds and others, who initially are inclined to favor management, back their efforts,’ Roe said. In a wide-ranging conversation, Roe suggested that there is a widespread, possible misperception that the public stock markets are particularly short term, with hikes in buybacks and cuts in research creating problems in corporate America. However, Roe argues there is mixed data on the subject. He points out that capital expenditures are down everywhere in the developed world, but less so in the U.S. “There is something else going on,” he said. “Activist engagements are up over the past 10- or 15 years. R&D is up significantly over the past 10 or 15 years.”

Law School grad Nisha Vora '12 left the legal life for vegan cooking.

Donna Ferguson awoke in the resort city of Cancún before sunrise on a sweltering Saturday in July. She wasn’t headed to the beach. Instead, she walked down a short hallway from her Sheraton hotel and into Galenia Hospital. ... I. Glenn Cohen, a law professor at Harvard and an expert on medical tourism, called the model used by NASH and a few other similar operations a “clever strategy” to attack some of the perceived risks about medical tourism. “It doesn’t answer all concerns, but I will say it’s a big step forward,” he said. “It’s a very good marketing strategy.”

A book review by Noah Feldman: This year is a propitious time for Stephen Budiansky’s new biography of Justice Oliver Wendell Holmes Jr. Exactly a century ago, dissenting in the case of Abrams v. United States, Holmes invented the metaphor of the marketplace of ideas, single-handedly laying the groundwork for the modern constitutional protection of freedom of speech. A year later, writing for the Supreme Court’s majority in Missouri v. Holland, Holmes inaugurated the metaphor of the living Constitution. Such a constitution should properly be interpreted “in the light of our whole experience, and not merely in that of what was said a hundred years ago.” Not bad for a man who was already 78 years old in 1919 — and who had been three times wounded in the Civil War, escaping an early death by just inches. When Holmes wrote in the Missouri case that it had cost the framers’ successors “much sweat and blood to prove that they created a nation,” it was his own blood and that of his closest friends that he had in mind.

Speaking to Adv. Avani Bansal (for Live Law), Professor David Wilkins shared his thoughts and opinion on Rule of Law, its challenges, Globalization and Legal Profession in India. He had recently published his book, 'India Legal Profession in the Age of Globalization' and pointed out that the book was as part of a larger project, Globalization Lawyers & Emerging Economies (GLEE) that he is associated with. He said that one of the reasons why he was attracted to study in India (working on the project) was that according to him, among the BRIC countries, India has the deepest and strongest commitment to Rule of Law and India is undergoing tremendous  transition. Therefore the study of evolution of Rule of Law in a rapidly developing country like India is interesting.

An op-ed by Noah Feldman:  After the El Paso shooter posted a manifesto on the anonymous message board 8chan, the network provider, Cloudflare, suspended the site’s account, taking it offline — at least for now. Whether you applaud or oppose the action, it raises a fundamental problem for the future of free speech: Should there be some place on the Internet where even the most repellent, vile discussion is allowed? Or would we be better off collectively if we hounded such speech wherever it crops up, driving it ultimately to the dark web, and attacking it even there in the hopes of eliminating it altogether? The case of 8chan seems to provide the basis for the strongest possible case that some speech just shouldn’t be allowed to appear on the Internet.

An op-ed by Noah Feldman: Joaquin Castro’s tweet listing the names of maxed out Trump donors in the San Antonio area has come in for intense criticism, with multiple Republican congressmen sticking to the talking points that by publicizing these names, Castro was “targeting” private citizens. What is fascinating to me is the intuition that there is something inherently wrong with tweeting out information that is already mandated by law to be in the public domain. This feeling transcends partisan politics: Remember when Democrats were upset when Trump tweeted that special counsel Robert Mueller’s investigative team contained “13 hardened Democrats” based on publicly available voter registration information? Is there, in fact, something wrong or worrisome about a public official actively publicizing this kind of information? Federal election law already requires public disclosure of all donations to candidates for federal office.

Over half a century ago, Congress struck a blow for gender equality when it passed the Civil Rights Act of 1964.... In a brief prepared for several former solicitors general, Joshua Matz, a lawyer in New York, and Laurence Tribe, a Harvard law professor, begin by reminding the court that the meaning of a law “is distinct from how people may have expected the statute would apply when it was enacted”. Citing Oncale v Sundowner Offshore Services, Inc.—a 1998 Supreme Court decision recognising that Title VII bars sexual harassment of male employees—the authors recall the late Justice Antonin Scalia’s clarion call to textualism: “it is ultimately our laws rather than the principal concerns of our legislators by which we are governed”. The brief then turns to the “plain text” of Title VII and observes how it protects LGBT people. It’s not necessarily because “sex” means “sexual orientation” or “gender identity”, the brief argues, but because an employer logically cannot fire someone on one of these bases without paying close attention to their perceived or actual sex, and applying stereotypes governing how people of that sex should present themselves or whom they should be attracted to.

...A cynic may point to antitrust investigations into Facebook by the Justice Department and the Federal Trade Commission, partly focused on how it has reduced competition, including by buying rising competitors. One of Facebook’s biggest fears seems to be that it could be forced to split off WhatsApp and Instagram. So it’s hard not to view the branding exercise as a (clumsy?) play to demonstrate that the services are too tightly intertwined to be torn apart. In the same spirit, Bloomberg reported that Facebook planned to take its first real steps toward technical integration of the services by rebuilding Instagram’s chat feature using Messenger technology. Can Facebook deter a potential breakup? Einer Elhauge, a Harvard law professor, told me that the answer could be contingent on how feasible the authorities deemed a successful split to be. “It’s hard to unscramble eggs,” he said. “Can these eggs be easily unscrambled or not?”