Media Mentions

The Harvard Law professor whose planned legal defense of accused rapist Harvey Weinstein caused a campus furor that cost him a faculty dean position wants to use the episode to restore academic freedom, he said Thursday evening. In his first remarks since he lost the deanship last month, Ronald S. Sullivan Jr. said he envisions creating an institution that could work within and beyond Harvard to reform academia and restore reasoned discourse on campuses. It was unclear exactly what shape that might take. But with his wife, fellow Harvard Law professor Stephanie Robinson, he launched an online video to begin to marshal support...“Our firm belief is that universities are doing a disservice to its students to allow them to substitute emotion for rigor,” said Sullivan. “And part of our goal is to recenter the intellectual project at the university. It’s not just Harvard. We see this as a much more systemic problem. To the degree that we can use what happened with us to impact and change the ways in which universities are educating its students, then we’re happy to do that.”

Back in 2009, median pay for FTSE 100 bosses was £2.19m compared with £21,580 for the average UK worker. That meant the 2009 ratio of boss-to-worker pay was 102:1. Then, between 2009 and 2017, bosses’ median pay grew by 7.3 per cent a year while the average UK worker’s pay grew annually by just 1.8 per cent. The effect of those differing growth rates was to take the boss-to-worker ratio to 155:1...It would be fatuous to suggest that the average boss had somehow become 50 per cent more capable than the average worker in that period. Yet, in effect, this is what the apologists for UK corporate governance would have us believe...It fools no one. For example, Lucian Bebchuk, a professor at Harvard Law School who specialises in executive pay, is in no doubt that rising executive pay since the 1980s is all about power and rent extraction under the cloak of corporate-governance rules. These rules are chiefly framed by what Professor Bebchuk labels “the optimal contracting approach”, which attempts to overcome the core problem present in almost every organisation, namely that the people hired to run it don’t have the same interests as the people who hired them.

A New Zealand court on Tuesday blocked a murder suspect’s extradition to China, the latest repudiation of a Chinese legal system under Communist Party control...In a strongly worded ruling, the New Zealand court ordered the country’s government to consider human rights risks in China before deciding that the suspect, Kyung Yup Kim, should be sent there...But in its 99-page judgment, it directed the justice minister in New Zealand’s current center-left government to determine whether China valued adherence to the international human rights agreements it had signed. The minister, Andrew Little, must address evidence that torture of prisoners in China persists and is difficult to detect, the panel of judges wrote. Mr. Little must also seek evidence about “the extent to which the judiciary is subject to political control.”...Tony Ellis [Human Rights Program Visiting Fellow], Mr. Kim’s lawyer, said Mr. Little faced “a difficult if not impossible task” in answering “the profound and important questions posed by the Court of Appeal.”

The Mexican government has lodged a “cultural appropriation” complaint against Carolina Herrera for its use of indigenous patterns and textiles in its Resort 2020 collection. Garments from the New York-based brand’s latest collection that “feature a traditional flower embroidery known as ‘istmo de Tehuantepec,” as well as those with “a colorful ‘Saltillo Sarape’ stripe pattern” have led the Mexican culture ministry and the fashion media, alike, to call foul. But legal experts suggest there is more to consider here...“In some countries, courts have construed existing intellectual property laws to establish modest limitations on uses of traditional knowledge,” according to William Fisher, a professor of intellectual property at Harvard Law. For instance, “Australian courts have ruled that the importation and sale of carpets bearing images derived from motifs developed by Aboriginal groups violated Australian copyright law.” Other countries, he notes, such as Philippines and Guatemala, “have created sui generis regimes that [exclusively] govern traditional knowledge.”

If you’ve ever found yourself in your local grocery store wondering what the difference is between “sell by,” “best by,” “expires by,” or “use by” food labels, you’re not alone.  That confusion contributes to American consumers trashing $161 billion in food each year. Yet most people might be surprised to know that these labels often have very little to do with food safety...Apart from infant formula, which is required by law to have a “use by” date, there has never been federal oversight over date labels. According to Emily Broad Leib, the director of the Food Law and Policy Clinic at Harvard Law School, one way large companies set dates is by hiring taste testers to sample a given product over different periods, and then report when they think something tastes stale or slightly off. And, “in states that require date labels on a lot of different foods, some small food companies that we talked to said, ‘We don’t have any money to do taste testing. We just pick a date out of thin air,’” Leib says. These estimates are typically conservative, so the quality of food may still be fine long past the various best-by dates, Leib explains.

Things sure aren’t sparkling. La Croix’s parent company National Beverages facing a new lawsuit after new allegations that the company’s president considered falsely claiming its drink containers were free of the toxic chemical BPA. The chemical is said to affect neurological development in children. Shares of National Beverage fell to a multiyear low on Wednesday on the news of a lawsuit against the company...La Croix has been no stranger to controversy over the last year...Last year a Chicago law firm filed a class action lawsuit. The suit alleged that La Croix misled consumers by labeling La Croix as “all natural” in which the lawsuit says the product is “manufactured using non-natural flavorings and synthetic compounds...Although it can be misleading to consumers, “The term natural has escaped an enforceable definition by the Food and Drug Administration” according to Nicole Negowetti of The Harvard Law School Food Law and Policy Clinic.

An op-ed by Terri Gerstein and Brian Shearer:  Would it be ethical for a lawyer to draft an employment contract in which a fast food worker is paid not with money, but only in burgers and fries? What if the lawyer’s client—the employer—asked for it? Most lawyers would balk at fulfilling such a blatantly illegal request. Unfortunately, for years, many lawyers have done something very similar: They’ve routinely included clearly illegal or unenforceable terms—like bogus noncompete agreements—in worker contracts. Fortunately, someone is now asking questions about this practice. On Wednesday, the Center for Public Interest Law at the University of San Diego School of Law submitted a letter to the California State Bar requesting an ethics ruling to stop lawyers from writing employment contracts with clearly unenforceable terms. The California Bar’s Committee on Professional Responsibility and Conduct should swiftly respond that such conduct is unethical.

The National Rifle Association spent growing sums on overhead in 2018 even as it cut money for core activities such as gun training and political efforts, ending the year deeper in debt, new financial documents show...Professor Howard E. Abrams, a tax expert at Harvard Law School, said the NRA’s spending on overhead was “extraordinarily high.” “It is surprising that an organization as well-known as the NRA would have to spend that much on administrative and fundraising costs,” he said. “That is money that isn’t going to legislative programs, safety and training programs, and other core activities. It is sort of a cost of running the business. But it is a big cost.”

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. A new survey of ESG adoption rates, from UBS Group AG’s asset management unit and Responsible Investor Research, covers more than 600 asset owners in 46 countries, responsible for more than 19 trillion euros ($21 trillion) of assets...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.

Lawrence Lessig has a twinge of regret about not joining the massive field of candidates in the 2020 Democratic presidential primary, so he’s doing the next best thing — starting a podcast to interview and cajole them to support his agenda of political reforms. The prominent Harvard Law School professor and political activist briefly ran for president in 2016, an experience that he describes as both “the worst of times” and “the coolest thing I've ever done.”...So instead, he’s using his new podcast to go deep with candidates on campaign finance reform, voting rights, gerrymandering and more, and to push what he calls "POTUS 1” — a play on the name of a similar bill House Democrats’ passed this year called HR1.

Alex Whiting has joined the Specialist Prosecutor’s Office (SPO) as Head of Investigations. Whiting, 54, is a prosecutor of French and US nationality with extensive experience of both domestic and international prosecutions, including stints at both the International Criminal Court (ICC) and the International Criminal Tribunal for the former Yugoslavia (ICTY), as well as a distinguished academic career, the SPO announced on Thursday. According to the SPO Whiting came to the SPO from Harvard Law School, where he had been a professor of practice since 2013.

In an interview with NPR, Sen. Kamala D. Harris (D-Calif.) opined that if the facts warrant it, President Trump should be indicted for crimes outlined in Robert S. Mueller III’s report: "There has to be accountability," Harris added. "I mean look, people might, you know, question why I became a prosecutor. Well, I'll tell you one of the reasons — I believe there should be accountability. Everyone should be held accountable, and the president is not above the law." ... Constitutional scholar Laurence Tribe agrees that another look at the OLC memo is needed. “The 2000 OLC memo, which basically echoed the 1973 OLC memo and its reasoning, should certainly be revisited by whatever presidential administration succeeds the one now in power. To begin with, the OLC memo was analytically flawed from the start and rested on a theory fundamentally incompatible with the core constitutional premise that nobody, and certainly no president, is above the law.”

President Trump has threatened to take legal action if Democrats try to impeach him, musing that he’ll “sue.” He has peppered confidants and advisers with questions about how an impeachment inquiry might unfold. And he has coined his own cheeky term — “the I-word” — to refer to the legal and political morass that threatens to overshadow his presidency as he heads into his 2020 reelection campaign. ... Trump’s assertions that he would sue to prevent impeachment have prompted some criticism in the legal community, with Laurence Tribe, a constitutional law professor at Harvard who has called for Trump’s impeachment, describing the idea as “idiocy” in a tweet. “Not even a SCOTUS filled with Trump appointees would get in the way of the House or Senate,” Tribe wrote.

A letter to the editor by Charles Fried: The media, including, I regret to say, The New York Times, have slipped into the habit of referring to people like Clarence Thomas, the justices who often vote with him, the Senate majority leader and those he leads, and journalists like Sean Hannity as “conservatives.” Of course they have nothing to do with conservatism as it has been known in the life of our country. True conservatives share the mind and temperament of Edmund Burke. They are men and women like Dwight D. Eisenhower, John Marshall Harlan, Sandra Day O’Connor, Bob Dole, Howard Baker and many more. Those who today are called conservatives for ease of reference are nothing of the sort. The historical and correct term is reactionaries.

Half of U.S. adults consider fake news a major problem, and they mostly blame politicians and activists for it, according to a new survey. A majority also believe journalists have the responsibility for fixing it. Differences in political affiliation are a major factor in how people think about fake news, as Republicans are more likely than Democrats to also blame journalists for the problem...Republicans take the idea of made-up news to “mean news that is critical of Trump,” rather than nonsense stories, said Yochai Benkler, a Harvard Law School professor who wrote a book on disinformation and right-wing media.

President Donald Trump's unscripted musings about the transgender military ban in an interview with Piers Morgan earlier this week could complicate his administration's efforts to argue in support of the policy in federal court. Legal experts told Newsweek that plaintiffs in several of the cases challenging the ban will take note of Trump's commentary, but cautioned that a conservative-leaning Supreme Court might be disinterested in interjections from the commander-in-chief...."What he is saying is actually inconsistent with what the government said on appeal," retired federal judge and Harvard Law School lecturer Nancy Gertner observed. "The government said that this did not apply to people in the process of getting gender dysphoria surgery, that it didn't sweep that broadly. The president's comments suggest that he wants it to sweep as broadly."

The kids’ climate lawsuit faces a critical inflection point: A trio of federal appellate court judges could breathe new life into the case or kill it altogether. The lawsuit—brought in 2015 by 21 youth plaintiffs ranging in age from 10 to 21—has already faced a yearslong winding road. The June 4 oral arguments mark the second time that judges on the U.S. Court of Appeals for the Ninth Circuit will consider whether to halt the case before trial. The Supreme Court has twice weighed in, the last time just 10 days before a trial was slated to begin. The case, Juliana v. United States, tackles a consequential issue, climate change, by asking novel questions involving big legal dogmas—the Constitution and the public trust doctrine—with potentially significant consequences. If the kids are successful, it could force the government to develop a comprehensive plan to reduce greenhouse gas emissions across multiple sectors of the economy...“I think the only way they lose” on standing “is if the court basically concludes that no one ever has standing to bring cases about climate change,” said Shaun Goho, deputy director and senior staff attorney at Harvard Law School’s Emmett Environmental Law & Policy Clinic. Goho helped write an amicus brief with a group of public health professionals backing the plaintiffs.

For much of her life, Linda Fairstein was widely viewed as a law enforcement hero. As one of the first leaders of the Manhattan district attorney’s sex crimes unit, later the inspiration for “Law & Order: Special Victims Unit,” she became one of the best known prosecutors in the country. She went on to a successful career as a crime novelist and celebrity former prosecutor, appearing on high-profile panels and boards. But since last Friday and the premiere of “When They See Us,” Ava DuVernay’s Netflix series about the Central Park jogger case, Ms. Fairstein has become synonymous with something else: The story of how the justice system wrongly sent five black and Latino teenagers to prison for a horrific rape...In a statement, a lawyer for Ms. Fairstein, Andrew T. Miltenberg, accused Netflix and Ms. DuVernay of “misrepresenting the facts in an inflammatory and inaccurate manner” and threatened to take legal action. (John C.P. Goldberg, a Harvard law professor and expert on defamation law, said that Ms. Fairstein’s position as a public figure would make it difficult for her to win a defamation suit.)

One day, a building designer told Aladdine Joroff about a way to help buildings adapt to floods. It involved letting water flow through the ground floor of a building, like a parking garage. Joroff: “And I asked, ‘Well, if it’s parking that has electric vehicle charging infrastructure, you know, what’s the impact?’ and he said it was something he hadn’t thought about.” That concerned Joroff, an attorney at Harvard Law School’s Emmett Environmental Law and Policy Clinic. Joroff: “It was just imagining infrastructure standing in a foot or 2 of salt water, particularly.”

Not long before Attorney General William P. Barr released the special counsel’s report on Russian interference in the 2016 election, he strategized with Senator Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, about one of his next moves: investigating the investigators...Less than two months later, Mr. Barr began his cleanup with the most powerful of brooms: a presidential order commanding intelligence agencies to cooperate with his inquiry, and sweeping power to declassify and make public their secrets — even if they objected...Given the president’s threat to indiscriminately declassify every document related to the Russia investigation, Mr. Barr’s ability to persuade Mr. Trump to outsource those judgments to him is comforting, said Jack Goldsmith, a conservative former senior Justice Department official who has repeatedly criticized Mr. Trump. “There is no way to know now what Barr will find in his investigation or whether or how he will use this power,” said Mr. Goldsmith, who is also a Harvard Law School professor. “But Barr is not someone inclined to harm our national security bureaucracy.”

The Supreme Court has another big environmental case on its docket, as the justices today agreed to review a Superfund fight that could affect cleanup efforts across the country. The court will hear Atlantic Richfield v. Christian, a battle over an old copper processing site in Montana. At issue in the case is whether landowners can go to state court to seek money for restoration when EPA is already overseeing an effort under the Superfund law, officially known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)...Harvard Law School professor Richard Lazarus said he was surprised by the Supreme Court's decision to take the case against the administration's recommendation. "That the U.S. Supreme Court nonetheless granted review is not good news for the respondents and strongly suggests that the minimum of four Justices who favored review are currently inclined to rule in favor of Atlantic Richfield," he said in an email to E&E News.