Media Mentions

Including environmental, social and governance considerations in investment decisions is becoming of paramount importance for the fund management industry. Moreover, those principles may be coming into force in asset allocation even faster than previously thought...Legally, trustees “must consider only the interests of the beneficiary,” Max Schanzenbach of Northwestern University and Robert Sitkoff of Harvard Law School wrote. That would bar a fund manager motivated purely by ethical considerations from allowing ESG concerns to steer investment decisions. If, however, the trustee is convinced that pursuing such an investment philosophy will generate higher returns, the legal requirement would be satisfied. But the professors warn that the evidence for that is far from conclusive. Studies “have exaggerated the potential for ESG factors to generate excess risk-adjusted returns, and have failed to appreciate the instability and lack of robustness in academic findings,” they wrote.

Jeff Alson was sitting in his apartment in Ann Arbor, Mich., when he felt like he was going to explode. The retired environmental engineer, who worked at the Environmental Protection Agency for 40 years, had just read a letter written by one of his old bosses, agency chief Andrew Wheeler. In it, Wheeler told Congress that EPA career experts had not been cut out of the process of crafting one of the Trump administration's most controversial environmental proposals to date — one that would abandon one of President Barack Obama's signature climate policies. Alson was one of those EPA experts before retiring in April 2018. He was fuming, he later said, because he believed what Wheeler was saying was wrong...California and other states have vowed to challenge the freezing of the fuel-efficiency standards in court once they are finalized. If the EPA's technical staff were cut out of the process, as Alson contends, that may provide fodder for a lawsuit. “The Clean Air Act requires EPA to be 'the decider' for its own rules, so IF it could be clearly shown in the record that EPA relinquished decision-making authority to NHTSA, that could be a problem for EPA in the courts,” Jody Freeman, director of Harvard Law School's Environmental and Energy Law Program, wrote by email.

An article by Cass Sunstein: The Office of Legal Counsel can be seen as the Navy Seals of the U.S. Department of Justice. It consists of a relatively small, and quite powerful, group of lawyers who provide legal advice to the president and the Cabinet departments, often on the very hardest questions. If the State Department and the Department of Homeland Security disagree about a legal issue, OLC, as it is called, might well be asked to settle their dispute. If the question is whether Congress can require the president of the United States to hand over his tax returns, or whether the president can fire members of the Federal Reserve Board, or whether executive privilege applies to conversations not involving the president personally, or whether the president is immune from criminal prosecution – well, there is a good chance that OLC will have the final word, at least within the executive branch. This helps explain why Robert Mueller deferred to a crucial judgment of the OLC, to the effect that the president is immune from criminal prosecution as a matter of constitutional law. The special counsel was criticized for following the office’s opinion, but he was right to do so. Robert Mueller is a straight shooter.

An article by Noah Feldman: Amid the flood of opinions the U.S. Supreme Court is releasing in the last two weeks of its term, it would be easy to neglect Gundy v. U.S., in which the court very narrowly upheld a federal law that allows the attorney general to decide whether to require registration by sex offenders who were convicted before the passage of the registration law. But ignoring the Gundy case would be an unfortunate mistake. What matters about it isn’t so much its consequences for sex offenders, or even its unexceptional outcome. What matters is the dissent by Justice Neil Gorsuch, which forms an important bridgehead in the conservative assault on the administrative state. His dissent squarely rejects a foundational constitutional doctrine that underlies almost everything federal agencies do: the doctrine that says Congress can delegate whatever decision-making authority it wants to executive branch agencies provided there is an “intelligible principle” to guide the agencies’ discretion.

An article by Noah Feldman: The U.S. Supreme Court has painted itself into a corner. Two years ago, it held that the First Amendment required the Patent and Trademark Office to register the trademark for a band called the Slants, despite the “offensive” character of the name. Now it has held that the office must register a clothing brand by the designer Erik Brunetti under the name “FUCT,” even though the PTO deemed the mark “immoral” or “scandalous.” Monday’s decision is a big step in the direction of an absolutist conception of free speech. Although several justices wrote separately to say that they thought trademark law could be tweaked so that the government wouldn’t have to give the coveted “TM” designation to pure vulgarities, it’s far from clear that a majority of justices would uphold such a law if Congress adopted it. For now, it’s open season for parties seeking trademark protection for essentially anything.

The gravediggers of liberalism believe that their moment has arrived. Hungary’s prime minister — who condemns “shipwrecked” liberalism — has weakened his country’s courts, changed the electoral system to favor his party and cracked down on universities. Poland’s Law and Justice party has followed suit. On the home front, President Trump openly praises strongmen, disparages judges and the free press, and disdains institutions like NATO that many people view as pillars of the postwar “liberal order” uniting Western democracies. Conservative intellectuals in this country don’t praise all these moves but have suggested they result from genuine frustration with the current political order...The current debate in the United States over liberalism’s worth might be traced to Notre Dame political theorist Patrick Deneen’s “Why Liberalism Failed,” an unlikely bestseller last year. The Roman Catholic right, to which Deneen belongs, has long been skeptical of liberalism. But while Deneen counseled that the faithful should drop out of national political life and focus on local communities, Harvard law professor Adrian Vermeule, a Catholic convert, advocates for a more aggressive approach. He has expressed the hopethat “nonliberal actors” could “strategically locate themselves within liberal institutions and work to undo the liberalism of the state from within.”

A rogue Chinese scientist stunned the world last year when he announced the birth of genetically modified twin girls, prompting widespread outcry from the broader scientific community and calls for a “global moratorium” on editing human embryos that result in births. Yet months later, Democrats on Capitol Hill surprised many science policy experts when they attempted to roll back a related, 4-year-old ban on altering the DNA of embryos intended for pregnancies. To many health policy experts here, and research advocates across the country, the timing — just months after the biggest genome editing scandal in world history — was inexplicable...Research advocates say there’s a way for Congress to roll back the ban on MRT without opening the door to other types of heritable gene editing in or accusations of “designer babies” — or inviting the kind of political criticism that characterized this month’s appropriations debate. “One easy, quick suggestion would be to differentiate mitochondrial replacement therapy” from the other types of germline gene editing, said I. Glenn Cohen, a Harvard law professor specializing in bioethics and health law. “That would then let FDA evaluate it directly, which it is currently prohibited from doing.”

If the President of the United States opposes a bill passed by Congress, he may veto it. But is he allowed to sabotage through executive action a law passed by Congress and signed by an earlier President? This is the central question in a recently filed lawsuit against the Trump Administration that alleges the Administration has intentionally acted to undermine the signature health insurance reform legislation signed by President Barack Obama...Several scholars have previously taken positions similar to the arguments made by the cities in their challenge to the Trump Administration’s actions. Yale Law School Professor Abbe Glucksuggests that the duty to faithfully execute laws entails ensuring “that our laws are implemented in good faith” and using “executive discretion reasonably toward that end.” Similarly, Harvard Law School Professor Noah Feldman contends that the Constitution “recognizes that the president can’t necessarily enforce every law. But it requires a good faith effort.”

The Trump administration has lauded its Clean Power Plan replacement rule as a more legally defensible option for regulating greenhouse gas emissions from power plants. An anticipated flood of lawsuits from environmental groups and states will soon put those claims to the test..."I'm guessing that the challengers to this rule will frame their case in a way that really forces the EPA to grapple with the fact that, as recently as 2015, the agency came up with a very different interpretation of the best system of emission reduction and that it was backed up with a reality-based record," said Joe Goffman, former counsel for EPA's Office of Air and Radiation and the current head of Harvard Law School's environment and energy law program."I think the challengers will really make EPA and [the Department of Justice] work hard to persuade the court to ignore all that."

President Trump's new industry-friendly carbon rule for power plants was greeted with little fanfare among the field of Democrats hoping to run against him. While eight of the two dozen 2020 hopefuls responded negatively to EPA's Affordable Clean Energy rule, most reactions were published by candidates' government offices, and very few explicitly promised to take action against the regulation if they are elected...Jody Freeman, a Harvard Law School environmental law professor who served in the Obama White House, said the subdued responses show how far climate policy has come. "The thinking has moved beyond just reinstating CPP," Freeman said. "Candidates are coming out with bold and ambitious, economywide plans, and they don't feel tethered to the CPP." Freeman argued it would nonetheless behoove candidates to think about what emissions reductions they could accomplish using solely the executive branch's authority, as both the Clean Power Plan and ACE do. "They always do this, they campaign on big, bold plans that require Congress to act," Freeman said of presidential candidates. "Then at some point, they realize that they need to examine their existing authorities like the Clean Air Act to see what can be accomplished there."

In public remarks and classified briefings, Trump administration officials keep emphasizing purported ties between Iran and Al Qaeda. Some lawmakers suspect that the executive branch is toying with claiming that it already has congressional authorization to attack Iran based on the nearly 18-year-old law approving a war over the Sept. 11, 2001, attacks...“If Iran has, in fact, been harboring Al Qaeda operatives, especially recently, then the A.U.M.F. by its terms plausibly authorizes the president to use force against Iran,” said Jack Goldsmith, a Harvard law professor who ran the Justice Department’s Office of Legal Counsel for a year under President George W. Bush. He cautioned that even if the Sept. 11 war law could be invoked, it would satisfy only the domestic law requirements for an attack and leave open a separate international law problem: The United States would also seem to need permission from the United Nations Security Council or a self-defense rationale to attack Iran. But once the two countries were engaged in an armed conflict, Mr. Goldsmith said, the United States could lawfully strike nuclear installations with a military dimension. Still, he said, if that is the only sort of attack the Trump administration has in mind, that would mean any invocation of purported Qaeda links to justify the conflict would seem “pretextual.”

Facebook Inc. appears to be moving ahead with the Supreme Court-like content oversight board it has been discussing for a year. It’s a worthy step but also a 1% solution for an unimaginably vast problem. Mark Zuckerberg, Facebook’s co-founder and chief executive officer, has been talking for more than a year about an independent authority that would become a final arbiter about whether a social network post should stay online or be wiped away for breaching the company’s rules against hate speech, calls to violence or other abuses...(Noah Feldman, a Harvard Law School professor and Bloomberg Opinion columnist, pitched the concept of an independent oversight board to Facebook. I haven’t spoken with him about this oversight body.)

You probably don’t think about intellectual property laws when you go shopping or watch the World Cup or surf the web, if ever. Yet the stuff we covet is governed by rules that have developed over hundreds of years around the world, which dictate what is made and sold, how, and for how much money. The new book, A History of Intellectual Property in 50 Objects, examines these dictates through the lens of iconic items that have influenced global culture. Released in June by Cambridge University Press, this collection of 50 essays on everything from ancient Korean clay-glazing techniques to Coca Cola bottles, Post-It notes, and internet protocols takes an unusual and accessible approach to its opaque topic...Designer Coco Chanel wasn’t much of a stickler for intellectual property law herself...Chanel died in 1971. By the 1980s, imitations of her small, rectangular quilted purse with its long chain-link shoulder strap were everywhere, as the book’s essay about the bag by Harvard Law School professor Jeanie Suk Gersen explains.

Artificial intelligence is often hailed as a great catalyst of medical innovation, a way to find cures to diseases that have confounded doctors and make health care more efficient, personalized, and accessible. But what if it turns out to be poison? Jonathan Zittrain, a Harvard Law School professor, posed that question during a conference in Boston Tuesday that examined the use of AI to accelerate the delivery of precision medicine to the masses. He used an alarming metaphor to explain his concerns: “I think of machine learning kind of as asbestos,” he said. “It turns out that it’s all over the place, even though at no point did you explicitly install it, and it has possibly some latent bad effects that you might regret later, after it’s already too hard to get it all out.”

It turns out that the dates on our food labels do not have much to do with food safety. In many cases, expiration dates do not indicate when the food stops being safe to eat — rather, they tell you when the manufacturer thinks that product will stop looking and tasting its best. Some foods, such as deli meats, unpasteurized milk and cheese, and prepared foods such as potato salad that you do not reheat, probably should be tossed after their use-by dates for safety reasons. Tossing out a perfectly edible cup of yogurt every once in a while does not seem that bad. But it adds up. According to a survey by the Harvard Law School Food Law and Policy Clinic, the Johns Hopkins Center for a Livable Future, and the National Consumers League, 84 percent of consumers at least occasionally throw out food because it is close to or past its package date, and over one third (37 percent) say they always or usually do so. That food waste in landfills generates carbon dioxide and methane, a greenhouse gas 28 to 36 times more effective at trapping heat in the atmosphere than carbon dioxide. And you are not just wasting calories and money...Emily Broad Leib, of the Harvard Law School Food Law and Policy Clinic, says that to have an effect, these changes need to be federally mandated. “We’re going to need the main government agencies that regulate food to be able to say: These are what these labels mean. When you see these on products, here’s what you should do, here’s how you should interpret them,” she said.

IIt is somewhere on the outer edges of conceivable that a sitting president will refuse to step down if he loses his re-election campaign. Nothing close to that has ever happened before. If that scenario plays out, America could still be saved from tyranny — but our democratic institutions would need to rise to the challenge. ..."There is no precedent for any such thing, any more than there is a precedent for the Trump presidency," Laurence Tribe, the Carl M. Loeb University Professor at Harvard Law School, told Salon by email. "Exactly what would happen is hard to guess. At a minimum, we would be in a time of extraordinary danger and chaos. The very fact that one has to imagine a circumstance in which a president refuses to leave office after being lawfully defeated is more than enough to remind us of the existential danger posed by the current occupant of the Oval Office. ..."

An op-ed by Ronald Sullivan:  In May, Harvard College announced that it would not renew the appointment of me and my wife, Stephanie Robinson, as faculty deans of Winthrop House, one of Harvard’s undergraduate residential houses, because I am one of the lawyers who represented the Hollywood producer Harvey Weinstein in advance of his coming sexual assault trial. The administration’s decision followed reports by some students that they felt “unsafe” in an institution led by a lawyer who would take on Mr. Weinstein as a client. I am willing to believe that some students felt unsafe. But feelings alone should not drive university policy. Administrators must help students distinguish between feelings that have a rational basis and those that do not. In my case, Harvard missed an opportunity to help students do that.

Retired federal judge Nancy Gertner, now a lecturer at Harvard Law and WBUR's Legal analyst joins us to discuss two Supreme Court decisions — Gundy v. United States and The American Legion v. American Humanist Association — and their implications.

An op-ed by Noah Feldman: In what is destined to become a landmark decision, the U.S. Supreme Court on Thursday upheld the constitutionality of a World War I monument in the form of a large Latin cross in a public intersection in Bladensburg, Maryland. The controlling opinion, by Justice Samuel Alito, flatly acknowledged that “the cross is undoubtedly a Christian symbol.” But that wasn’t the end of the story, because the court also said the cross functioned as a monument, a symbol of the nation and a historical landmark. The opinion in American Legion v. American Humanist Association marks the first time the Supreme Court has squarely held that religious symbols dating back many decades should be evaluated under a different standard than newly erected ones.

House Speaker Nancy Pelosi is letting President Donald Trump know he can "get away with murder" by refusing to open an impeachment inquiry on him, a constitutional law professor at Harvard University opined Wednesday. Constitutional law scholar and Harvard Law School professor Laurence Tribe admitted he is a lifelong Pelosi fan but agreed with George Conway, husband of Counselor to the President Kellyanne Conway, who criticized the House speaker for her continued stance against impeaching Trump. ... Tribe elaborated to Newsweek on Wednesday afternoon that George Conway is right and Pelosi is wrong "because both the Constitution and common sense tell us you don't refuse to convene a formal process to investigate a serious crime just because it looks like the criminal has the jurors in his hip pocket."

An article by Cass Sunstein:  If we are living through historic events, would we know? In 1965, Arthur Danto, a philosopher at Columbia University, argued that it is impossible to tell, when you’re in the midst of things, whether an event is going to be deemed “historic” by future historians. If something happens – Russia successfully reclaims Crimea, for example, or Pete Buttigieg declares that he’s running for president – its ultimate significance will be determined by causal chains that cannot possibly be anticipated, and by an assortment of events that have yet to take place.