Media Mentions

The future of the U.S. power grid may ride in part on an obscure tussle over transmission in the Lone Star State. Front and center is a new law in Texas — enacted as S.B. 1938 — that gives incumbent utilities first dibs on building new transmission lines. Critics say the measure effectively cuts out new entrants, clashes with the state's history of competition and could raise the costs of transmission projects that factor into consumers' power bills. Proponents counter that the language preserves Texas' approach to electricity and should help ensure reliability and affordability..."As competitive transmission expands, it's certainly plausible that other utilities will go to their state legislatures and ask for this kind of protection," said Ari Peskoe, director of Harvard Law School's Electricity Law Initiative

T-Mobile screwed over millions of customers when it collected their geolocation data and sold it to third parties without their consent. Now, two of these customers are trying to pursue a class-action lawsuit against the company for the shady practice, but the telecom giant is using another shady practice to force them to settle their dispute behind closed doors...T-Mobile, as well as other massive corporations, can lean on this mechanism to legally prevent individuals from both grouping together under a common mission as well as shield disputes from the public—just as Amazon has done with its terms of service, for example. “A lot of wrongdoing and harmful practices get protected or suppressed as a result of that,” Deepak Gupta, an attorney teaching a forced arbitration seminar at Harvard Law School, told Gizmodo in May.

When Apollo 8 Commander Frank Borman returned from the first voyage that orbited the moon, he addressed Congress to talk about the feat. Except he didn’t have the words to describe it in the way he wished he could, calling himself an “unlikely poet, or no poet at all.” So the astronaut instead recited the words of a poet to express the awe he felt looking down upon the planet we all call home: “To see the earth as it truly is, small and blue and beautiful in that eternal silence where it floats, is to see ourselves as riders on the earth together, brothers on that bright loveliness in the eternal cold—brothers who know now they are truly brothers.”  Those words were by Archibald MacLeish LL.B. 1919, a three-time Pulitzer Prize-winning poet, playwright and lawyer who a half century ago served as a literary interpreter of events beyond the imagination of most observers...On the...[day after the Apollo 11 landing], the [New York] Times presented the biggest headline in its history on its front page, which included two bylines. One was of a science reporter who wrote the news story. The other: Archibald MacLeish. As former Times editor A. M. Rosenthal later revealed: “What the poet wrote would count most, but we also wanted to say to our readers, look, this paper does not know how to express how it feels this day and perhaps you don’t either, so here is a fellow, a poet, who will try for all of us.”

Champions of human rights around the world are reacting with understandable suspicion to Secretary of State Michael R. Pompeo’s announcement that he is creating a “Commission on Unalienable Rights” that will “ground our discussion of human rights in America’s founding principles.” Pompeo said the commission — which will be headed by Harvard Law professor Mary Ann Glendon, who served as U.S. ambassador to the Vatican during the George W. Bush administration — wouldn’t opine on policy.

A letter to the editor by 19 Boston area faculty members, including Laurence Tribe, Dehlia Umunna, and David Harris.  WE ARE 19 FACULTY MEMBERS at universities across the Boston area, including Boston College, Boston University, Harvard University, and Northeastern University. We wish to respond to The Boston Globe’s recent article, “Stopping injustice or putting the public at risk? Suffolk DA Rachael Rollins’s tactics spur pushback,” which contained reporting that appears to us to be, at best, seriously misleading.

“Bear with me,” Jonathan Zittrain urged the audience as his talk — up to this point, a romp through the early history of the internet — lurched into Kantian philosophy: “I’m about to get all ‘East Coast’ on you.” Zittrain, faculty director of Harvard’s Berkman Klein Center for Internet and Society, was in Palo Alto, Calif., delivering an energetic presentation on the ethical responsibilities of tech companies toward consumers in the era of artificial intelligence. About the shift of technology environments from unowned to owned and tightly controlled, he asked, “When is it that ‘can’ implies ‘ought’?” His provocative keynote was the culmination of a Harvard Tech Startup Night hosted by Harvard Office of Technology Development (OTD) and the law firm WilmerHale at its Palo Alto offices.

The State Department established a new group to examine and define human rights, drawing skepticism from critics who worried the Trump administration was furthering its conservative political agenda. Secretary of State Mike Pompeo said Monday the Commission on Unalienable Rights will conduct “an informed review of the role of human rights in American foreign policy” and provide him with “advice on human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights.”...The new commission will be headed by human rights scholar Mary Ann Glendon of Harvard Law School, a former U.S. ambassador to the Holy See. Ms. Glendon said the commission will begin its work at a time when “basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators.”

The Trump administration said Monday that it will review the role of human rights in American foreign policy, appointing a commission expected to elevate concerns about religious freedom and abortion. Human rights groups accused the administration of politicizing foreign policy in a way that could undermine protections for marginalized populations, including the gay, lesbian and transgender community. Democratic senators have raised concerns about the panel’s intent and composition, fearing it would consist of members who “hold views hostile to women’s rights” and blow away existing standards and definitions...The commission will be chaired by Harvard Law School professor Mary Ann Glendon, a former U.S. ambassador to the Holy See. A conservative scholar and author, Glendon turned down an honor from Notre Dame the year President Barack Obama gave a commencement address there, protesting the school’s decision to recognize him in spite of his support for abortion rights...Glendon, who joined Pompeo at the State Department for the announcement, said she was honored to do the job at a time when “basic human rights are being misunderstood by many, manipulated by many and ignored by the world’s worst human rights violators.”

The three largest index-fund managers have grown so big that they ultimately could hamper the performance of public companies and the economy, according to research from corporate-governance scholars. The researchers—Lucian Bebchuk, professor of law, economics and finance at Harvard Law School, and Scott Hirst, a law professor at Boston University School of Law—recently published two papers that raise issues for investors...“We show and document that the Big Three have incentives to underinvest in stewardship and to be excessively deferential to the corporate managers of portfolio companies,” says Prof. Bebchuk. “Given this analysis and empirical evidence, we worry that the increased concentration of shares in the hands of institutional investors will not produce the improved oversight of public companies that would be beneficial for public companies and the economy,” he says.

Donald Trump is arguing he has made America an environmental leader, despite moving to gut dozens of rules meant to safeguard clean air and water and rescinding every major US effort to stem the climate crisis...Joe Goffman, a senior lawyer at the Environmental Protection Agency under Barack Obama, said Trump has been stalling environmental efforts since he signed an early executive order, in March 2017, to unwind Obama policies. “From his very first weeks in office the president has made it a priority to go backwards in terms of air quality and climate protections,” Goffman said.

Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark Tushnet, Michael Klarman, Jack Goldsmith, Daphna Renan, and Neil Eggleston].

A Wisconsin military veteran should not get relief from tax liability on income his ex-wife embezzled, since he must have known of the ill-gotten funds after she was arrested, convicted and jailed, the government told the Seventh Circuit. Rick E. Jacobsen is seeking so-called innocent spouse relief for taxes, interest and penalties owed on the embezzled income for 2011. His claim that he lacked actual knowledge of crimes committed by his ex-wife, Tina Lemmens, does not hold water since Jacobsen had access to bank statements showing the embezzled money, the U.S. said. The actual knowledge legal standard is used to determine whether a person must have been aware of a specific act...Carlton M. Smith of the Federal Tax Clinic at Harvard Law School, who represents Jacobsen, told Law360 that the lower court put too much weight on the actual knowledge factor in light of the fact that Jacobsen qualified for four of the seven factors and that the original purpose of spousal relief was to offer protection against a spouse who fails to report embezzled funds. "The taxpayer concedes that the court is not bound to consider all factors as having the same weight, and that even as many as two or three positive factors can be outweighed by one negative factor," Smith said. "However, the taxpayer argues that four positive factors can't be outweighed by one negative factor when there are only seven factors."

The House Ways and Means Committee lawsuit, in its quest for President Donald Trump’s tax returns, sets in motion a legal battle that may not be resolved before the 2020 presidential election. Courts will be asked to decide not just whether the panel’s request for six years of Trump’s personal and business returns is legitimate, but also whether Congress can sue the executive branch. How quickly it all happens will likely depend on the judge assigned to the case, according to tax practitioners and professors. The issue could eventually reach the U.S. Supreme Court...A second question has to do with the specific request for the tax returns. While Section 6103(f) doesn’t require the committee to explain the reasoning for its request to Treasury, some say a court may still ask for one. “Supreme Court precedent could be interpreted as requiring Congress to have a satisfactory motivation for the request,” said Harvard Law School professor Thomas J. Brennan. “So there’s debate to be had about what sort of rationale is needed.”...The courts may also decide that they can’t rule on the dispute because it involves a “political question,” a term that has special legal meaning. “There are some questions the Supreme Court has said have to be resolved by the political process rather than by the judiciary,” said Howard E. Abrams, who is a visiting law professor at Harvard Law School. The technical term the court would use is that the case is “nonjusticiable.”

The Trump administration’s legal strategy for overturning Obama-era power plant carbon dioxide controls goes beyond simply arguing it has the right to regulate differently, to contend that its way is the only way. If successful, the Environmental Protection Agency could close the door on any future Democratic administration using that section of the Clean Air Act to expansively regulate climate-warming emissions from power plants. The power sector was the second-largest emitter of greenhouse gases in the U.S. in 2017, according to EPA data. But the legal tactic is also risky, critics and supporters both say. If the argument fails, it could fail big—sending the EPA’s repeal and replacement of the Obama-era rule, known as the Clean Power Plan, back to the agency for a redo...“They’re playing a purist’s game,” Joseph Goffman, former senior counsel in the EPA’s air office during the Obama administration, said in an interview. “The authors of this strategy are very, very skeptical of any kind of climate policy and dead set against the EPA using the Clean Air Act as an authority for such a policy.” Goffman is now executive director of Harvard University’s Environmental and Energy Law Program. “The current EPA leadership is trying to shrink the EPA’s Clean Air Act authority over greenhouse gases so it’s small enough that they can ‘drown it in a bathtub,’ ” he added, likening the agency’s tactics to Americans for Tax Reform President Grover Norquist‘s famous quote about cutting the size of the federal government.

With Facebook, Twitter, and YouTube facing widespread criticism for the way they manage hateful, abusive, threatening, or fake content posted by users or content partners on their sites, many question whether private tech companies deserve to wield so much power to control what people can and can’t see on social networks....Facebook first established a massive force of content moderators—mostly employed by third-party companies—to help find and remove toxic content. The company said it had 15,000 content reviewers around the world by the end of 2018. Last November, Facebook CEO Mark Zuckerberg announced that Facebook would also, by the end of 2019, form an external, independent oversight board to oversee its content moderation decisions. The board would be “. . . a new way for people to appeal content decisions to an independent body, whose decisions would be transparent and binding” based on the idea that “Facebook should not make so many important decisions about free expression and safety on its own.”...The whole idea for an oversight board came from outside Facebook, from Harvard Law professor Noah Feldman, who is the main architect of Facebook’s plan. I spoke to him by phone about the details of his plan, and about some of the problems it’s likely to face.

An article by Noah Feldman:  President Donald Trump is politicizing the Fourth of July — so say the president’s critics in tones of frank outrage over his plans for a presidential speech accompanied by fighter jet flyovers. It’s not only, they say, that Trump is promoting militarism by parading some tanks through Washington. Rather, Trump is taking the wholesome, politically neutral, family fun of the holiday and using it to advance his own partisan interests. In place of hot dogs and fireworks, Trump is bringing us Republican elephants. There’s just one problem with this line of criticism: The Fourth of July was a partisan holiday from the time it was first celebrated in the 1790s. It became popular as a self-conscious endorsement of Thomas Jefferson, his Declaration of Independence and the first Republican Party — over George Washington, Washington’s Birthday and the Federalist Party.

An article by Noah Feldman:  We don’t know whether the Department of Justice lawyers working on the census case were fired en masse or quit. Either way, Sunday’s announcement was a genuinely shocking development in President Donald Trump’s efforts to add a citizenship question to the 2020 count. It’s bizarre to the point of being unprecedented for the government to change horses like this in the middle of such a highly time-sensitive legal process. The move signals that the Trump administration is very likely on the way to making some doubtful legal claims — claims that will have to be in stark contradiction to what the Department of Justice has already said to the federal courts, including the U.S. Supreme Court, in a lawsuit brought by civil-rights groups trying to scrap the question.

An article by Charles Fried:  The usual form for a justice who disagrees, no matter how fundamentally, with a decision of the Supreme Court is to end the opinion with the formula “I respectfully dissent.” Justice Antonin Scalia, in particularly high dudgeon, would sometimes drop the adverb. Last week, though, Justice Elena Kagan, writing for the four justices who disagreed with Chief Justice John Roberts’s opinion in Rucho v. Common Cause purporting to withdraw the Court once and for all from passing judgment on the constitutionality of partisan gerrymanders, ended thus: "Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent." Kagan’s occasion for sorrow is deep not only because the chief justice left a fundamental flaw in our constitutional democracy without hope of a judicial remedy, but because of the defective reasoning by which he came to that conclusion.

Collisions between academia and the legal system are in the news lately. Ronald Sullivan, a professor at Harvard Law School and a practicing attorney, had the nerve to join the legal team of a deeply unpopular defendant, Harvey Weinstein. This caused some Harvard students residing in Winthrop House, an undergraduate residence that Sullivan supervised, to declare that they “feel unsafe.” Sullivan is no longer advising Weinstein, ostensibly due to scheduling conflicts, and is no longer a faculty dean at Winthrop House. Meanwhile, some 650 miles to the west, Oberlin College outside of Cleveland found itself on the wrong end of a $44 million jury verdict, since reduced to $25 million. An Ohio court determined that the college had supported students who leveled defamatory accusations of racism against a local store, Gibson’s Bakery, after the arrest of three black Oberlin students who pled guilty to charges of attempted theft and aggravated trespass.

Through the Caselaw Access Project, Harvard Law School has made millions of legal decisions more accessible to researchers than ever before. On campus last week, the inaugural Caselaw Research Summit, hosted by the Harvard Library Innovation Lab, brought to light the diversity of research that the project is making possible. The Caselaw Access Project (CAP) was the result of five years of work by the Harvard Library Innovation Lab at Harvard Law School. Between 2013-18, the HLS Library digitized more than 40 million pages of data covering 6.5 million individual cases; the most comprehensive database of American law available anywhere outside the Library of Congress. But unlike the latter it gives nationwide researchers free, immediate access to judicial decisions from each of the 50 states, dating back to their founding. Tweaks are still being made to CAP, notably a new Historical Trends app that can trace the number of a times a word was used in legal cases over the years, with a timeline pointing to the relevant cases.

Secretary of State Mike Pompeo on Monday announced the creation of an advisory commission on human rights that has engendered controversy since it was proposed. Pompeo said the Commission on Unalienable Rights “will provide the intellectual grist of what I hope will be one of the most profound re-examinations of inalienable rights in the world since the 1948 Universal Declaration.” The panel will be headed by Mary Ann Glendon, a Harvard Law School professor who wrote a book about the United Nations’ 1948 Universal Declaration of Human Rights. Pompeo was Glendon’s research assistant when he studied law at Harvard. Glendon is also a former U.S. ambassador to the Vatican. Besides her academic research, Glendon is known for her antiabortion views. At the 1995 U.N. World Conference on Women in Beijing, she fought successfully to keep abortion from being listed as a human right.