Media Mentions

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.”

It looks like Northern Pass is really dead this time: The New Hampshire Supreme Court on Friday upheld the project’s rejection last year by the state Site Evaluation Committee. “We have reviewed the record and conclude that the Subcommittee’s findings are supported by competent evidence and are not erroneous as a matter of law,” Associate Justice Anna Barbara Hantz Marconi wrote in the unanimous decision. The ruling leaves no obvious way forward for the 192-mile transmission line carrying almost a Seabrook Station’s worth of electricity down from Quebec hydropower plants, ending almost a decade of often-contentious debate. ... “Really hard to beat the state in court on a siting denial,” wrote Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, in response to the ruling.

An op-ed by Chelsea Barabas, Karthik Dinakar and Colin Doyle [staff attorney at Harvard Law School's Criminal Justice Policy Program]: We can’t end mass incarceration without first changing what happens before trial. On any given day, the United States incarcerates nearly half a million people who have only been accused of a crime and await their day in court. In response, many cities and counties have started to use algorithms that try to predict people’s future criminal behavior, known as actuarial risk assessments. As researchers in the fields of sociology, data science and law, we believe pretrial risk assessment tools are fundamentally flawed. They give judges recommendations that make future violence seem more predictable and more certain than it actually is. In the process, risk assessments may perpetuate the misconceptions and fears that drive mass incarceration.

A group of libertarian and conservative lawyers that formed to counter alleged transgressions of legal norms by the Trump administration issued a statement Monday condemning tweets from the president that urged four minority female Democratic House members to “go back” to their home countries. Trump’s tweets, saying four freshmen members of the U.S. House should “fix” their home countries before criticizing the U.S., deeply angered Democrats but left Republicans largely silent. All four of the lawmakers are U.S. citizens, and three of them were born in the United States...In addition to George Conway, of counsel to Wachtell, Lipton, Rosen & Katz, other signatories included Harvard Law School professor Charles Fried, a former Reagan administration U.S. solicitor general...

President Donald Trump this week claimed he won an emoluments case brought against him after a federal appeals court dismissed the lawsuit. A Harvard law professor and constitutional expert says that's "bullshit." ... Harvard Law professor Laurence Tribe fired back at Trump, noting that the president didn't win the lawsuit at all. "It's all bullshit, of course. He didn't 'win'," tweeted Tribe, explaining that the appellate panel had merely ruled that D.C. and Maryland lacked standing to bring the action. "[A]nd he's still using the Oval Office to rob us blind and fill his coffers with piles of rubles that put him in debt to our adversaries," Tribe continued.

The National Labor Relations Board’s ruling last week that made it easier for employers to oust unions marked at least the 10th time during the Trump administration that the NLRB settled case law without giving prior notice or an opportunity for public input, according to a review of decisions. The Republican-controlled NLRB’s ruling also overturned precedent for employers withdrawing recognition of unions in its July 3 decision in Johnson Controls without being asked to do so by the parties in the case. The board has similarly overturned prior decisions on its own initiative in most of those cases in which it didn’t request public briefing. Not providing notice or inviting additional input en route to overruling precedent without being asked feeds criticism that the Trump NLRB is advancing its pro-management agenda more aggressively than past boards pushed their policy priorities...The NLRB has invited briefing in at least four cases since Republicans took control of the board in 2017. The Obama board more frequently sought outside views. It called for public briefing a dozen times from 2014 to 2016, for example. "It’s a norm to allow the public to weigh in for a reason,” said Sharon Block, a former Democratic board member. “It’s a really important part of the process. The current board certainly hasn’t provided a good reason for breaking with that norm.”

President Trump has struck out in the courts on his effort to add a citizenship question to the 2020 Census. The Supreme Court’s recent ruling essentially called out Commerce Secretary Wilbur Ross for giving a false excuse for including the question.  ...Constitutional scholar Laurence H. Tribe reiterates, “In my view, the president does not have either inherent or statutory authority to add the citizenship question by unilateral executive action. Article I of the Constitution — both textually and historically as well as structurally — manifestly assigns census matters to Congress.” He adds, “The 14th Amendment doesn’t alter that assignment but reinforces it. Article II does not give the president any role in this area beyond whatever role Congress delegates to him.” He concludes that Trump could not “could succeed along this path in getting the existing district court injunctions lifted.” Moreover, the existing ruling from the federal courts — preventing the inclusion of the census question — remain in effect.

As index investing giants exert a stronger grip on public companies, they have an opportunity to change the way such companies do business for the better. But according to new research, the indexing giants may not be doing such a good job. A new report from The Wall Street Journal cites researchers Lucian Bebchuk, professor of law, economics and finance at Harvard Law School, and Scott Hirst, law professor at Boston University School of Law. The duo recently published two papers on the power held and wielded by BlackRock, Vanguard, and State Street over US public companies. “Together, [they] control an average of one in five shares of S&P 500 companies, and that portion is likely to jump to more than 33% of shares over the next two decades,” the Journal said, citing a working paper issued in June by the National Bureau of Economic Research. The three fund managers also reportedly own 16.5% of shares in members of the Russell 3000 index, and could grow to hold 30.1% over the next two decades.

Emily Doe was nearly exiled from Maplewood, Missouri, because crisis hotline volunteers sent police to her home too many times within one year. Emily, who’s bipolar and suffers from anxiety and post-traumatic stress disorder, called a crisis hotline because she was suicidal. Crisis volunteers sent emergency personnel to her house on three different occasions, and in one instance, she was taken to a psychiatric hospital for evaluation and treatment. For doing what’s medically recommended — that is, calling for help — Emily received a citation and summons from the City of Maplewood to attend an ordinance enforcement hearing for “generating too many calls for police services.” Had the city determined her a “chronic nuisance,” officials would have not only evicted Emily but revoked her occupancy permit, effectively exiling her from the community for at least six months. “It’s just so callous it’s hard to believe,” said [Harvard Law School student] Sejal Singh, co-author of a new paper titled “When Disability Is a ‘Nuisance'” and published Monday in Harvard Civil Rights-Civil Liberties Law Review.