Media Mentions

...[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?”

An op-ed by Terri Gerstein, director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program: Earlier this month, just in time for people’s summer vacations, American Airlines took a legal action that has the potential to expose travelers to more germs. The airline sued New York City over its paid sick leave laws. ... These lawsuits are one more example of American businesses’ frequent reflexive reaction against any pro-worker laws. Airlines themselves previously challenged, for example, a Miami living-wage ordinance and a San Francisco anti-discrimination ordinance requiring provision of employment benefits for domestic partners. The airlines’ problem isn’t the patchwork; if that were the case, they would be vigorously lobbying for a decent national paid sick leave policy. Their real problem is being told they have to do better by their workers.

Harvard has launched an animal law and policy clinic, becoming the latest law school to offer a hands-on course in the rapidly growing area. The clinic is part of the school’s animal law and policy program. Topics include litigation, legislation, policy, and administrative matters relating to issues affecting farmed animals, wildlife, animals in captivity, and threats posed by climate change. Kelly Levenda, student programs attorney with Animal Legal Defense Fund, said she is unaware of another top U.S. law school offering a hands-on legal clinic in addition to animal law courses. “We need to train attorneys and judges who work in this area,” said Levenda. “It’s great to have a top law school taking animal law seriously. Animal law is a social justice movement, and I think the more people who are exposed to it, the better.

...Indeed, while changes in both the nature of work and anti-union government policies abetted organized labor’s decline, Rolf is right to observe that the union business model may be an even bigger problem. ...In addition, as Harvard Law School’s Benjamin Sachs has proposed, unions should be allowed to “unbundle” their services so that they can advocate political causes without bargaining collectively. This could help give workers a stronger political voice without the necessity of getting involved in every workplace issue. Unions and employers should also be free to reach contracts that involve only some aspects of work — say, benefits and work rules but not wages and job tenure — and unions should be free to sell a range of services to anybody who wants to buy them, employers included.

An article by SJD candidate Evelyn Douek:  Two years ago, Matthew Prince, CEO of Cloudflare, saw this controversy coming and begged not to be put in this position. Then and now, his company—which helps provide some of the basic plumbing of the internet—found itself at the center of the battle over which speech should and should not be easily available online. The more fundamental question is who gets to make these decisions, and it’s being answered by default, in the absence of any legal norms. Who are the deciders? This week, at least, companies like Prince’s are. Until recently, the infamous message board 8chan was one of Cloudflare’s clients. A breeding ground for violent extremists, 8chan has been the host of advance announcements of three mass shootings in less than six months, including the shooting in El Paso, Texas, on Saturday. Early yesterday morning, Cloudflare stopped serving 8chan—thereby disabling it, if only temporarily.

On a crisp and gray September morning, Jeannie Suk Gersen stepped into a lecture hall at Tufts University...Gersen is a feminist legal scholar and a writer of wry, slightly elliptical commentary on legal matters at The New Yorker. She is our foremost guide to the challenges that the #MeToo movement poses to the legal system. She has staked out a position at once conventional and embattled. She shares #MeToo’s goal of ending the impunity surrounding sexual assault. But she remains committed to the principles of due process, presumption of innocence, and the right to a fair hearing. This commitment places her in tension with some of the most impassioned actors in American public life, some of whom have come to regard due process as a fatal obstacle to deterring and punishing sexual misconduct...Gersen, [Janet] Halley, [Elizabeth] Bartholet, and [Nancy] Gertner designed an alternative set of Title IX procedures — applicable only to Harvard Law students — that the Office for Civil Rights eventually certified as meeting the requirements laid out in the Dear Colleague letter, while also satisfying the principles of fair process as Gersen and her colleagues understood them.

When AT&T acquired Time Warner last year for $85 billion, the companies said the deal would be great for consumers, who would benefit from lower prices and improved service. The Justice Department said the opposite, predicting the merger would give AT&T so much market power that price hikes and channel blackouts were all but inevitable. Einer Elhauge, a professor at Harvard Law School, said the current circumstances “seem to be precisely what the Department of Justice predicted would happen after the merger of AT&T and Time Warner, and precisely what AT&T successfully persuaded the trial court was implausible for it to ever do post-merger.” His verdict? “It looks like the court just got it wrong.”

Under a new California law signed into law on Tuesday, President Donald Trump will be ineligible to appear on the state’s presidential primary ballot unless he first discloses his tax returns. ... Laurence Tribe, a professor at Harvard Law School since 1968 who is widely considered to be one of the most influential constitutional scholars in American history, immediately took to Twitter to preemptively rebuff arguments that the law unconstitutionally placed additional requirements on persons seeking the presidency. “California isn’t adding any requirements for the presidency — which it couldn’t do — but just ensuring that its voters are fully informed about all aspirants. This should survive the predictable constitutional challenge,” Tribe wrote. Also inclined to opine on the newsworthy legislation, Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School, said the California law “plainly” violates the U.S. Constitution. “Hey Dems, just stop. This law is plainly unconstitutional,” Lessig wrote on Twitter.

An op-ed by Laurence Tribe: The devil is a notoriously misleading advocate. Lawyers and pundits who revel in advancing arguments that they might like to act on but wouldn’t be caught dead making in a courtroom or legal brief seem to take perverse pleasure in making those demonstrably flawed arguments as “devil’s advocates.” Among the best recent examples is the way some lawyers and others who promote their views of sexual matters in public venues have been making the outlandish claim — as devil’s advocates, they say — that the age of consent to sex for youngsters, and young girls in particular, ought to be lowered if we’re to be consistent with the state laws and judicial rulings enabling younger women and girls to have safe and legal abortions without the consent of parents, guardians or other adults.

Dahlia Lithwick is joined by Michele Goodwin, Chancellor’s Professor of Law at the University of California, Irvine, for a wide-reaching conversation about race and gender and the stories America tells itself so it can sleep at night. ... This week’s show also features excerpts from a live discussion Dahlia moderated at 92nd Street Ywith Heidi Schreck (What the Constitution Means to Me) and professor Laurence Tribe (Harvard Law School).

An op-ed by Cass Sunstein:  President Trump apparently learned a kind of code from one of his mentors, Roy Cohn: Always hit back. Never apologize. A rough and occasionally vicious lawyer, Cohn was chief counsel for Joe McCarthy. He practiced what he preached. Was Cohn right? There is a lot of evidence that he was. But existing evidence is preliminary, and it does not involve presidents, let alone Trump. If a president, particularly this president, does something offensive or horrifying, is he better off if he says that he is sorry? And if not, why not? With the help of Amazon’s Mechanical Turk, I recently investigated these questions. I asked about 400 demographically diverse Americans how they would react if Trump apologized for his recent tweet suggesting that four Democratic congresswomen of color should “go back” to the countries from which they “originally came.”