Media Mentions

An op-ed by Laurence Tribe: We are eye witnesses to the unraveling of the American project. Watching the old war hero stumble on the stage of history as he tried valiantly to overcome the limitations that his obviously ailing condition imposed on him was painful in itself. Watching the pitiless Republican vultures pick at his bones was even more so. But watching the ugly truth of what our nation threatens to become was worst of all.  That we are governed by a president who seized the office and wields its weaponry with the deliberate and felonious help of a hostile foreign power is now beyond denying.

Special Counsel Robert Mueller testified before Congress today, largely sticking to his earlier insistence that he would not depart from his written report if called before the cameras. He did refute a key mantra that Trump has frequently invoked by clarifying that his report did not, in fact, exculpate the president, and also took the time to warn Americans that efforts to undermine our nation’s democracy continue today at an alarming rate. But beyond a few key moments, did the public learn anything new about the investigation or its findings? Jim Braude was joined by retired federal judge Nancy Gertner, who is now a senior lecturer at Harvard Law; and former U.S. attorney Donald Stern, who worked alongside Robert Mueller both during his stint with the Department of Justice and in private practice at Hale and Dorr.

An op-ed by Cass Sunstein: Throughout his testimony in the U.S. House of Representatives on Wednesday, and despite multiple efforts to divert him, former special counsel Robert Mueller was focused on just the two issues that were the topics of his official report: Russia’s interference with the 2016 presidential campaign and possible obstruction of justice by President Donald Trump. Both Republicans and Democrats disliked it, and found it weak, when Mueller answered their lengthy questions by referring to that report. “I rely on the language of the report,” he sometimes said.

An op-ed by Noah Feldman: Questions to former special counsel Robert Mueller from both sides of the aisle in his House Judiciary Committee testimony made one thing clear: The path Mueller took in the section of his report on President Donald Trump’s obstruction of justice was indefensible — from both sides. The most important issue in Wednesday’s hearing was the way Mueller refused to address Trump’s possible guilt based on the legal theory that because the Department of Justice couldn’t indict a sitting president, it would be unfair to conclude that the president had committed a crime. Yet Mueller couldn’t manage a coherent response to either Democratic or Republican criticisms arising from that prosecutorial decision.

An op-ed by Noah Feldman: You can take the letter that the Department of Justice has sent to former special counsel Robert Mueller offering “guidance” on his testimony to Congress as evidence of several interesting things. For one, Mueller seems to have wanted an official document from the Justice Department to help him avoid answering questions. For another, the Trump administration seems worried about questions concerning unindicted persons, such as President Donald Trump and his family. But whatever you do, don’t take the Justice Department letter as the law. The only legal bars to Congress’s demanding answers from Mueller on Wednesday are the Constitution and federal statutes. Those are invoked in the letter, but without much bite. The core of the guidance focuses on departmental policy.

An article by Jonathan Zittrain: Like many medications, the wakefulness drug modafinil, which is marketed under the trade name Provigil, comes with a small, tightly folded paper pamphlet. For the most part, its contents—lists of instructions and precautions, a diagram of the drug’s molecular structure—make for anodyne reading. The subsection called “Mechanism of Action,” however, contains a sentence that might induce sleeplessness by itself: “The mechanism(s) through which modafinil promotes wakefulness is unknown.” ... In the past, intellectual debt has been confined to a few areas amenable to trial-and-error discovery, such as medicine. But that may be changing, as new techniques in artificial intelligence—specifically, machine learning—increase our collective intellectual credit line. Machine-learning systems work by identifying patterns in oceans of data. Using those patterns, they hazard answers to fuzzy, open-ended questions. Provide a neural network with labelled pictures of cats and other, non-feline objects, and it will learn to distinguish cats from everything else; give it access to medical records, and it can attempt to predict a new hospital patient’s likelihood of dying. And yet, most machine-learning systems don’t uncover causal mechanisms.

An op-ed by Cass Sunstein: George Orwell’s “1984” is the greatest fictional account of authoritarian leadership — the most astute, the most precise, the most attuned to human psychology. One of its defining chapters explores the Two Minutes Hate, which helps establish and maintain Big Brother’s regime. As Orwell describes it, the Hate begins with a flash of a face on a large screen. It is Emmanuel Goldstein, “the Enemy of the People.” His is “a clever face, and yet somehow inherently despicable,” and also unmistakably foreign. It produces fear and disgust.

An op-ed by Noah Feldman: The news on Tuesday that the U.S. Department of Justice will not seek civil rights charges against a New York police officer in the death of Eric Garner sounds like grounds for a straightforward controversy. ... Yet there is a less obvious problem lurking in the background here: What should the Department of Justice do about a possible civil rights violation in a close case that also has enormous symbolic importance? Garner’s final words, “I can’t breathe,” became part of Black Lives Matter protests of excessive police force throughout the country. Possibly no more complex, or indeed tragic, problem faces a well-meaning attorney general.

A decade after some of the nation’s largest U.S. banks helped to bring the financial system to its knees, a new kind of “too big to fail” risk may be emerging in a very different corner of the market: index funds. Three index fund managers currently dominate ownership of shares of publicly traded companies in the U.S., and their control is likely to tighten in coming years, according to a June research report. Concentrated ownership — what the authors refer to as the “Giant Three scenario” — means investors and policy makers need to keep a careful eye on the role of fund managers in upholding corporate governance, argue authors Lucian Bebchuk of Harvard Law School and Scott Hirst of Boston University in a working paper titled The Specter of the Giant Three.

When John Elwood argued before the U.S. Supreme Court as assistant to the solicitor general in the early 2000s, one gentle, cordial query always made his stomach clench. "May I just ask...," Justice John Paul Stevens would say, or, "Can I ask you a question?" Elwood admits he sometimes thought, "I wish you wouldn't." The polite question was invariably the wind-up to an inquiry that "really cut to the heart of the matter, and zeroed in on the weakest part of your case," said Elwood, who is now a partner at Arnold & Porter. "His mannerism was gentle, and the questions he asked were always fair ones." ... Harvard Law Professor Laurence Tribe, who has argued before the Supreme Court many times, said that style set Justice Stevens apart from his colleagues, who "obviously felt entitled simply to cut off an advocate in mid-sentence or even mid-word." "Justice Stevens was unfailingly courteous and kind, not just with his colleagues and his law clerks, but with counsel arguing at the court in front of him," he told Law360 in an email.

An op-ed by Noah Feldman: The career of Justice John Paul Stevens, who died Tuesday at 99, stands as a reminder of the U.S. Supreme Court of an earlier era, when partisanship was rare, pragmatism reigned, and a moderate Republican like Stevens could evolve into one of the most important liberal justices of the post-World War II era. Even at the height of Stevens’s influence in the late 1990s and early 2000s, when he had become the de facto leader of the court’s liberals, Stevens represented something of a throwback — a connection to a Supreme Court world only dimly remembered or read about in history books.

Justice John Paul Stevens' landmark decision in Massachusetts v. EPA forced the federal government to address the problem of climate change and unleashed a flood of decarbonization policies, a deluge that the Trump administration is trying to reverse. Justice Stevens, who died Tuesday, penned the 5-4 majority opinion in 2007 that greenhouse gases are air pollutants under the Clean Air Act and subject to U.S. Environmental Protection Agency regulation. Twelve states, led by Massachusetts, along with several cities and environmental groups had sued the EPA seeking to force it to regulate GHGs. The decision is considered one of the most important U.S. environmental law rulings ever made. ... “It showed that Justice Stevens was a consensus builder, somebody who could write an opinion in a way that would attract, not repel, votes,” said Jody Freeman, the founding director of Harvard Law School's Environmental and Energy Law Program and a former Obama energy and climate change counselor. “That's a very important skill for a Supreme Court justice.”

Two US law professors have challenged one of the key narratives deployed by the Principles for Responsible Investment (PRI) and others in favour of ESG investing. According to Max Schanzenbach, of the Northwestern Pritzker School of Law, and Robert Sitkoff, at Harvard Law School, the argument that ESG investing by pension trustees is mandated under fiduciary principles was usually based on a “syllogism” riddled with errors. Writing in an article destined for the Stanford Law Review next year, the professors argued that the reasoning behind this position typically followed three steps: “(1) ESG factors are related to a firm’s long-term financial performance; (2) the duty of prudence requires a trustee to consider material information; and (3) therefore a trustee must consider ESG factors”.

When documentary filmmaker Karney Hatch started visiting Heart 2 Heart Farms in Sherwood, Oregon, he says he was astounded to witness the five million pounds of food the owners rescue from its trip to landfill every year. “Even after having visited the farm many times,” he says, “it still takes my breath away to drive up and see 10,000 pounds of fresh nectarines or pallet after pallet of avocados, fresh off the truck.” And this is just a small fraction of the bigger picture nation- and world-wide. “The scope of the problem is just enormous,” he says. This gave Hatch the inspiration for a new documentary, “Robin Hoods of the Waste Stream”. ... Some of the leading food waste warriors who will feature in the documentary: Emily Broad Leib (Harvard Law School Food Law and Policy Clinic),

Altera Corp. is asking the Ninth Circuit to revisit a dispute with the IRS over taxes on assets shifted overseas, the latest development in a case that could have billion-dollar implications for multinational companies. The Intel-owned company is seeking an en banc review of a June 7 decision from a Ninth Circuit panel, which sided with the government. The three-judge panel found the Internal Revenue Service was able to require Altera to include stock option compensation to employees in a cost-sharing arrangement with its foreign subsidiary. ... Stephen E. Shay, a senior lecturer at Harvard Law School who focuses on international tax issues, said he doesn’t think the case merits an en banc review. “There is nothing new, unique, or obviously flawed in the panel’s application of the APA that would justify en banc review,” he said, referring to the Administrative Procedure Act.

... Still, the relative invisibility of Warren’s husband — the Harvard Law professor Bruce Mann, one of the country’s leading legal historians — is not merely a matter of what the public and the press choose to see. During her political career, Warren — who rose to national prominence while also a law professor at Harvard, particularly of bankruptcy law — has tended to cast Mann in a specific sort of role, one in which he is very supportive but rarely visible. ... Far from being “just” Warren’s husband, or even “just” her fellow-Harvard-Law-professor husband, Mann is a scholar whose work explores the same set of issues at the center of Warren’s work both in academia and in politics. Indeed, Mann’s work helps to deepen the urgency of Warren’s, connecting the difficulty of the present moment with historical strands that go back to colonial America, and to the foundations of human nature.

After years working in “dead-end” jobs, Morgan Marler decided to pursue a degree that would help her start a career working with computers. In 2013, Marler enrolled at ITT Technical Institutes feeling convinced they’d help her land a job once she graduated. ... Marler graduated from the school in 2016 with an associate’s degree in information technology. But just a few months later, ITT shut down amid claims the school misled students about job placement and graduation rates. ... In November 2017, she filed a claim asking the government to wipe away her debt under a law that allows borrowers to have their loans cancelled if they’ve been defrauded by their school. Nearly two years later, still waiting for an answer. ... Perhaps most “alarming,” according to Eileen Connor, the director of litigation at the Project on Predatory Student Lending at Harvard Law School, which is representing the borrowers: 96% of these borrowers say they’re lives are worse off now than before they attended a for-profit college. “It’s a wake up call for everyone about how we are managing the federal student-loan program,” Connor said. “It’s not what we like to think and what we tell people about how higher education will make your life better.”

There's a new debate emerging over the proposed memorial to slavery at Faneuil Hall. The idea for the memorial emerged as many activists called for Faneuil Hall to be renamed, because of Peter Faneuil's history as a slave trader. But last week the artist who proposed the memorial — Steve Locke — said he was withdrawing his project. ... Guests ... David Harris, managing director of the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School.

... Stoked Pizza Co. will open in a ground-floor space at the newest Harvard Law School building in Cambridge in early 2020, according to a spokesperson. It’s the latest iteration of a concept launched by musician-turned-pizzaiola Scott Riebling and co-founder Toirm Miller back in 2014, when the duo started crisping inventively-topped, Neapolitan-inspired pies inside a (still-roving) food truck equipped with a wood-fired oven.

No advocates for workers’ rights or labor were especially surprised last week when President Trump nominated Eugene Scalia for secretary of Labor, succeeding the utterly discredited Alex Acosta. Scalia — son of the late Supreme Court Justice Antonin Scalia — had made his reputation in Washington as a lawyer for big corporations resisting labor regulations, after all. ... As Terri Gerstein, a labor expert at Harvard Law School, observed in March, the Trump proposal would work out to less than $17 an hour — not exactly what most would consider “supervisor” pay — and would be silent on fast-food chains’ habit of suspiciously loading up their restaurant workforces with “general managers, assistant managers, night managers, managers for opening and closing and delivery, all paid a weekly salary.”