Media Mentions

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.

In just the last few weeks, activists have helped shut down fraternities at Swarthmore, ousted a dormitory leader at Harvard who had signed on as a lawyer for Harvey Weinstein and pushed Princeton to review the way it handles sexual assault complaints. Administrators have initiated talks with the protesters to address their concerns...Janet Halley, a legal and feminist scholar at Harvard, said she supported the right of students to demand that Ronald Sullivan Jr., a fellow law professor, be removed from his dormitory position for representing Mr. Weinstein. But she thought it “cowardly” of the university not to be more forceful in defending the legal principle at stake. “We’re living in a hyper-polarized time,” Dr. Halley said. “If we can all be fired because of people who can be offended, there’s going to be a gigantic housecleaning around here.”

Harvard Law School has formed a new partnership with Service to School’s VetLink program, an initiative that directly connects transitioning military veterans seeking higher education with partner schools that align with their academic goals, aspirations, and potential. This partnership aims to further grow the veteran student body of HLS, and provide guidance and opportunity to veterans who may be considering a law degree...Hailing from all services and both the officer and enlisted ranks, veterans form an important and growing community at Harvard Law School...During the 2018-2019 academic year, 45 U.S. military veterans were enrolled at HLS. This fall, HLS is projected to have approximately 20 veterans in the incoming class, the largest group in recent years.

Just hours before a panel of prosecutors and former Watergate figure John Dean was set to testify before the House Judiciary Committee, its chairman, Rep. Jerrold Nadler (D-N.Y.), announced that a deal had been struck to make available the “most important” underlying materials that were the basis for report by special counsel Robert S. Mueller III. ... Third, strong supporters of impeachment have put out a false narrative that casts the House as relatively helpless. Far from it. The House can get relief in the courts. Moreover, it seems Barr thinks that being held in contempt of Congress is enough of a threat to pry loose at least some evidence. “At least at first glance, this is a very promising development. It strongly suggests that even Bill Bar has his limits in terms of facing down a threat of being held in contempt by the House of Representatives,” says constitutional scholar Laurence H. Tribe. “This is incremental movement, and the pace is glacial, but the glass, though far from half full, no longer seems entirely empty.”

An article by Jack Goldsmith: President Trump’s delegation of a narrowly defined declassification authority to Attorney General Bill Barr has attracted criticism, notably on this site by my colleagues David Kris and Benjamin Wittes. I think these criticisms tell only one side of the story, and that the matter is more complicated than they let on.