Media Mentions

Republicans are trying to weaken a federal board that helps minority and low-income communities challenge how much pollution can be released in their neighborhoods by power plants and factories. ... “This is outrageous,” said Richard Lazarus, an environmental law professor at Harvard. “Individuals in communities will lose a way to seek relief from pollution that has historically been very effective. But industry will still be able to seek relief to pollute more.”

While in Ireland this week to attend meetings in Dublin, Vice President Mike Pence is staying at the Trump International Golf Links and Hotel in Doonbeg, approximately 180 miles away from Dublin. Pence’s chief of staff Marc Short said the VP was staying at the President’s property due to logistical and security reasons, though he also admitted Trump “suggested” he stay at the resort. In the wake of President Donald Trump indicating that he planned to hold next year’s Group of Seven (G-7) summit at his Doral golf resort in Miami, constitutional law expert Laurence Tribe on Tuesday decried both decisions, saying each violated a separate clause of the U.S. Constitution. “Memo to POTUS: There are TWO Emoluments Clauses,” Tribe wrote. “The one you’re violating when you line your pocket by having Pence stay at your resort & commute is the Domestic [Emoluments Clause]. The one you’re planning to violate by having the G7 stay at the Doral w/out Congress’s consent is the Foreign [Emoluments Clause].”

A letter by Elizabeth Bartholet:  The Massachusetts Department of Children and Families is supposed to be a child welfare agency. But the story told in “Innocents Lost” (Page A1, Aug. 25) demonstrates that DCF regularly functions as a child destruction agency. Governor Baker took an important first step in reforming DCF four years ago, when he eliminated its differential response program. This two-tier system assigned a significant percentage of child maltreatment cases to a voluntary track, with no prior investigation of the seriousness of maltreatment. Under this approach, parents were free to walk away from any protective supervision. Differential response has been shown to put children at risk, and several states have eliminated it for this reason. But Kay Lazar’s Globe story illustrates why this step is not enough. DCF needs a total overhaul. Keeping abuse cases on the traditional track, where DCF can require that parents engage in rehabilitative services, and can remove children at risk to foster care and adoption, will not help if DCF fails to act as needed to protect children.

An article by Noah Feldman:  It’s great news that a North Carolina state court has struck down partisan gerrymandering under its state constitution. The ability of states to read their own constitutions differently from the federal constitution is part of what make states laboratories for democracy. And no experiment is more dangerous for the future of democracy than highly effective, computer-modeled partisan gerrymandering. But don’t get too excited about the prospect that lots of states will overcome partisan gerrymandering through state judicial action.

Currently, Facebook relies on a combination of technical tools and human moderators to enforce its community standards. Soon, the company hopes that the final decisions about content it's flagged will be made not by its own teams, but by a group of outsiders. By the end of the year, Facebook plans to have up and running an external, independent oversight board to tackle its most challenging content moderation decisions — a body that Facebook CEO Mark Zuckerberg said will function like an appeals court, or the US Supreme Court...“It's going to consider a selected subset of the most difficult and controversial issues on which reasonable people could reach different conclusions,” said Noah Feldman, a Harvard Law School professor who came up with the idea for the oversight board. “It can’t realistically fix every possible mistake that either computers or humans make. That would be a strange thing for it to do.” Feldman said that when he came up with the idea for an independent oversight board in January 2018, he didn’t have a particular piece of contested content in mind. Rather, he said, he was thinking about the broader content moderation challenges facing the company: being criticized for taking down too much material, therefore stifling free speech, or leaving too many posts intact and jeopardizing users’ safety. When Feldman brought the oversight board idea to Facebook, he was pleasantly surprised by the reception. “I discovered, to my great interest, that Mark Zuckerberg had himself been thinking for a long time about different ways to devolve power, create accountability, put some kinds of decision-making outside of the company,” he said.

State Street Corp. has flexed its muscles as an influential shareholder, demanding that large U.S. companies including SL Green Realty Corp., Verisk Analytics, and Ford Motor Co. improve their corporate governance practices or explain their rationale to get its vote of approval...State Street, BlackRock, Vanguard Group, and BlackRock vote 25 percent of the stock in the largest U.S. public companies, a portion that could soon rise to 40 percent, according to a draft paper published last month by Alexander Platt, a lecturer at Harvard Law School. He suggested that policymakers in “heated debate” over the influence of the Big Three consider reforms that strengthen their overlooked roles as corporate enforcers.

Samantha Power has always had a self-righteous streak. She freely admits the “certitude” and “sanctimony” of her younger self. After a few years as a correspondent covering the Bosnian war, she found that her new Harvard Law School classmates didn’t know or care about the genocide unfolding there, so she stuffed a New York Times report on the Srebrenica massacre into every first-year’s mailbox. Her scholarship and activism on that topic culminated in “A Problem From Hell,” her incredible 2002 history of American apathy during the 20th century’s worst ethnic conflicts. The Pulitzer Prize-winning tome held that officials justified noninterference when even minimal efforts, from public shaming to sanctions, could have saved countless lives. “Decent men and women chose to look away,” she wrote. Power was, in this antediluvian period, a voice of piercing moral clarity. Then she went to work for Barack Obama. During her stints with him in the Senate, on the presidential campaign and inside the White House, pundits and critics wondered how the human rights advocate would reconcile her belief that America must act to protect vulnerable people with the dirty business of policymaking, where concessions taint every action. She finally answers in “The Education of an Idealist,” her new memoir.

“In Hoffa’s Shadow: A Stepfather, a Disappearance in Detroit, and My Search for the Truth,” Jack Goldsmith (Farrar, Straus and Giroux) Goldsmith, a Harvard Law professor and former assistant attorney general, reunites with his estranged stepfather, a one-time Jimmy Hoffa associate, to find out more about the labor leader and his famously unexplained 1975 disappearance. Out September 24.

Charles Hamilton Houston ’1922 S.J.D. ’1923 was an inspiring figure in American legal history and a sometimes controversial one as well. Both sides of his legacy were examined in a lively lecture and Q&A discussion at Harvard Law School this week, to coincide with the 124th anniversary of his birth on September 3, 1895. There was no disputing Houston’s status as a one of the key champions of American racial justice in the 20th century. In his opening talk, Professor Randall Kennedy outlined the obstacles Houston overcame as an African American lawyer in the early 20th century, and the accomplishments that ultimately led to the Brown v. Board of Education decision (which came four years after Houston’s death). Professor Kenneth Mack ’91 also celebrated Houston’s achievements, but pointed out decisions Houston made that reasonable minds might take issue with.

Jody Freeman comments on hurricanes and climate change policy.

Escalating an unusually public legal dispute, Suffolk District Attorney Rachael Rollins filed an emergency petition with the state’s highest court Wednesday to overturn a judge’s ruling against a protester arrested at the Straight Pride Parade, saying he overstepped his bounds by refusing to allow her prosecutors to dismiss the charges. Boston Municipal Court Judge Richard J. Sinnott “ignored the clear and unambiguous constraints placed on the judiciary by the separation of powers” in refusing to let prosecutors drop nonviolent charges against protesters who were arrested Saturday in a clash with police, Rollins wrote in a 16-page petition to the Supreme Judicial Court...Sinnott’s stance against prosecutors drew a sharp rebuke from many legal specialists. Nancy Gertner, a former federal judge in Boston who now teaches at Harvard Law School, said Sinnott was making “the kinds of judgments that a prosecutor makes.” “As a judge, I oftentimes disagreed with the cases brought in front of me,” Gertner said. But, “in a system of divided power,” prosecutors decide when to bring criminal charges, she said.

Who would have thought a play title as prosaic as “What the Constitution Means to Me” would in 2019 resound with such passion and urgency? But that’s been the intense reaction to Heidi Schreck’s celebrated performance piece, a Broadway hit this past season and a finalist for the Pulitzer Prize for drama...Laurence Tribe, professor at Harvard Law School: "To me, the Constitution is more verb than noun. Less a bequest from a few inspired but flawed white men than a challenge to build 'a more perfect Union,' a fairer and more equal nation, from their hopes and ideals — and from the dreams of those who marched and fought and died to make those ideals real."

Since the 2016 election, some Democrats have raged against the Electoral College as an anti-democratic institution that does not reflect the will of the people. Some Republicans have defended the institution as protecting the power of small states and preserving the federal system. But whether you like the Electoral College in theory or not, it turns out that the actual rules used to implement its use are creaky and dangerous. Indeed, thanks to new conflicting rulings, the institution could generate chaos and confusion in 2020 or in a future presidential election. In August, the United States Court of Appeals for the 10th Circuit heldthat the state of Colorado violated the Constitution in 2016 when it removed Micheal Baca, a presidential elector who acted “faithlessly” and voted for John Kasich over Hillary Clinton, who was chosen by the state’s voters. It followed a contrary ruling from the Washington state Supreme Court, which held that the state could fine electors $1,000 for being faithless. Now, Harvard Law professor Larry Lessig is planning to bring the Washington case to the United States Supreme Court—and in doing so, hopes to blow up the current Electoral College system.

There was more drama and confusion in Boston Municipal Judge Richard Sinnott's courtroom Wednesday, where prominent immigration and civil rights attorney Susan Church was held in custody for hours. Sinnott held Church in contempt of court while she was representing someone arrested for protesting this weekend's so-called "Straight Pride" parade. Guests [include] Nancy Gertner...

An article by Samantha Power:  Flying back to the United States from Asia on Air Force One in late November 2012, President Barack Obama was in high spirits. He had recently been reelected, and had just concluded a widely celebrated visit to Myanmar (also known as Burma)—the first ever  by a sitting U.S. president. The trip had almost fallen apart at the last minute, when it became clear that the military government was balking at reforms that were supposed to have been in place by the time Obama arrived. A few days before he departed Washington for Asia, the president dispatched me to Myanmar with instructions to lock down our desired terms before he landed, and over three bruising days of negotiations, I did so. The final agreement included a large release of political prisoners, a commitment to allow access for humanitarian workers to war-torn ethnic areas, and permission for critics of the Burmese dictatorship to return from exile or, if living in Myanmar, to travel outside the country. During the 20-hour journey back to Washington, Obama summoned me to his personal cabin on Air Force One and asked me what job I hoped for in his second term. My husband, Cass Sunstein, had just left the White House after three and a half years as the administrator of the Office of Information and Regulatory Affairs. He was now commuting between our home in Washington and a small rental apartment near Harvard Law School, where he had resumed teaching. I did not want to leave government, but after serving as Obama’s multilateral-affairs and human-rights adviser on the National Security Council since January 2009, I was ready to try something new.

Thirty-six people were arrested at Saturday's Straight Pride Parade and protests. On Tuesday, Boston Municpal Court Judge Richard Sinnott denied the prosecution’s motions to dismiss charges of "disorderly conduct and resisting arrest" against seven of the arrested. There are more arraignments pending. Four officers were injured during the response to Saturday's events. We review what we know about what happened. Guests [include]...Nancy Gertner.

I approach this Labor Day optimistic that a broad cross-section of American workers and leaders are ready to negotiate and build a new workplace compact that reduces income inequality, restores dignity and respect for all who work, narrows the divides that separate us and ushers in a new era of sustained prosperity. Workers and labor organizations are taking action to rebuild their bargaining power in new ways, business leaders are calling for a more balanced view of corporate responsibility than they have been espousing throughout the era of financial capitalism, educational institutions are offering new ideas and concrete programs to prepare for the future of work and Democratic candidates for president are determined to win back the support of the workers who abandoned them in 2016... The academic community is likewise poised to play a more activist and constructive role in supporting a new workplace compact...A broad-based coalition of labor law scholars convened by Harvard’s Program on Labor and Worklife will soon issue a report outlining a “clean slate” approach to updating the nation’s woefully outdated labor laws.

An article by Noah Feldman:  Critics of Boris Johnson’s decision to “prorogue” Parliament by sending its members home for several weeks say it is undemocratic: the Prime Minister is making it much harder for Parliament to influence Brexit, and thus making it more likely that the UK will leave the EU without a deal. Johnson’s supporters, however, maintain that there is nothing undemocratic about it, since it helps execute the will of the people as expressed in the 2016 referendum. Who’s right? Is the democratic will of the British people to be found in their Parliament, one of the oldest continuously operating institutions of representative democracy? Or is it to be found in the referendum’s Leave vote?

An article by Cass Sunstein:  Here is a puzzle about some of the Donald Trump administration’s most prominent deregulatory efforts: The very companies that are supposed to benefit from those efforts do not welcome them. In some cases, they strenuously oppose them. How can that be? There are several answers.

Let’s say it’s January 2021, and President Bernie Sanders has just assumed office. On his second day as commander-in-chief of the most powerful military in world history, Bernie and his foreign policy team are ushered into the White House Situation Room. After being seated at a long wooden table, a group of diplomats and military officers informs Bernie that armed militants in the Central African Republic have placed artillery around a town and are threatening to bombard its 10,000 inhabitants. The townspeople have requested that the United States destroy the weapons and save their lives. What should Bernie do? For Samantha Power, who served as U.S. ambassador to the United Nations during Barack Obama’s second term, this really is no question at all: You eliminate the weapons. Power has dedicated her life to promoting humanitarian intervention—the idea that the United States, as the world’s “indispensable nation,” has the moral duty to use its awesome military capabilities to prevent or halt atrocities.

The U.S. Department of Education has released its new Borrower Defense to Repayment rule, designed to give students debt relief in cases where they took out loans to pay for fraudulent schools. The new version, which goes into effect on July 1, 2020, makes it harder for federal student loan borrowers to have their debts forgiven, enforcing stricter criteria....But not everyone is feeling celebratory. Rep. Bobby Scott, chairman of the House education committee, criticized the new version, and Harvard Law School’s Project on Predatory Student Lending has already promised an upcoming lawsuit.