Media Mentions

America's first major offshore wind project is caught in a crosswind. The Federal Regulatory Energy Commission declined this week to rule on a waiver that would have eased the wind developer's entry into New England's electricity market. The decision, or lack thereof, prompted an unusual round of public sniping among FERC commissioners on Twitter and highlights the simmering tensions in New England, where state climate ambitions are straining against the structure of the region's wholesale electricity markets. ... But it's a fragile compromise. In many ways, the disagreement over Vineyard Wind's waiver is best understood as a fight over money, said Ari Peskoe, who leads Harvard Law School's Electricity Law Initiative. He pointed to a New England Power Generators Association filing with FERC this week, in which the power plant owners argued that Vineyard Wind's participation in the auction would prompt total market revenues to fall by $270 million. For the wind developer, on the other hand, the capacity auction represents an additional revenue stream outside its state contract.

President Trump lost a big one when he caved to Nancy Pelosi’s demand on the spending bill. Does that mean that “it’s all over for Trump,” as headlines have regularly blared? No. But it does mean that until he reasserts his authority, the locus of power is with the speaker and not with the president. Power unused is power lost. It’s a political truth that Democrats understand and Republicans pretend doesn’t exist. What is frustrating about this for supporters of border integrity is that the defeat was entirely self-inflicted. It didn’t have to happen at all. In fact, the president had the whip hand — if he had only recognized it and chosen to use it. Adrian Vermeule, a constitutional law professor at Harvard, noted on Twitter that “Trump’s advantage in various negotiations, for a time, was that he seemed crazy and capable of doing something genuinely rash if he didn’t get his way. Lately he (or his advisers) have become excessively rational, and they’re getting slaughtered.”

The vast majority of companies that reported their fourth-quarter earnings between Jan. 1 and Feb. 1 did so without completing an audit, a practice that experts say could have troublesome consequences. Data provided by research firm Audit Analytics shows that of 174 companies with a market cap of at least $10 billion that reported earnings in that period, just six filed their 10-K and auditors report with the Securities and Exchange Commission on the same day or earlier. ...“To the extent the new regulations increase the proportion of firms announcing earnings prior to the audit report date, we expect a commensurate decrease in the reliability of preliminary earnings information in the marketplace,” wrote the authors of that report, which was published by the Harvard Law School Forum on Corporate Governance and Financial Regulation.

Evidence is a cornerstone of the law. The accused cannot be convicted without evidence, and sufficient evidence must support civil claims. But when it comes to improving the justice system and access to justice, are we using good evidence? “Often, we come up with an idea and we just run with it,” said April Faith-Slaker, associate director of research innovations at Harvard Law School’s Access to Justice Lab (A2J Lab). “Sometimes that may work. But with an issue like access to justice, resources are extremely limited. We need to understand the best ways to use them.” ...“We are pushing for a transformation in the legal profession through rigorous research,” said Faith-Slaker, who is leading randomized control trials (RCTs) in multiple states. “There’s a real need for doing the research to figure out the best way to go about doing things,” she said. The A2J Lab, still relatively new, focuses on issues in the legal profession related to low-income and vulnerable populations, civil and criminal.

An op-ed by Cass Sunstein: In his State of the Union address, President Donald Trump was entirely right to reject “new calls to adopt socialism in our country.” He was right to add that “America was founded on liberty and independence — not government coercion,” and to “renew our resolve that America will never be a socialist country.” Yet to many Americans, the idea of socialism seems to have growing appeal.  Representative Alexandria Ocasio-Cortez, one of the nation’s most influential new voices, is a member of the Democratic Socialists of America. Senator Bernie Sanders, a leading voice among progressives, has long described himself as a socialist. Since 2010, most Democrats have had a favorable attitude toward socialism. Recently, 57 percent of Democrats reported such a favorable attitude, well above the 47 percent who said they have a positive attitude toward capitalism. (By contrast, 71 percent of Republicans are upbeat about capitalism, and only 16 percent feel positively about socialism.)

An op-ed by Noah Feldman:  The U.S. Senate passed a bill Tuesday that says state governments can refuse to do business with companies that boycott Israel. The bill passed, 77-23, with 22 Democrats and Republican Rand Paul maintaining that it threatens free-speech rights. So you might be wondering, as I was: Is the bill actually unconstitutional? The question is straightforward, but the answer isn’t — because of the strange way that the federal bill is written with regard to the boycott, divestment and sanctions (BDS) movement.  The bill essentially declares that, if states want to pass measures targeting companies that boycott Israel, nothing in federal law prohibits the states from doing that. The strange thing is that no one really seems to think that the state laws violate any federal statute.

An op-ed by Mark Tushnet:  If Congress doesn’t come up with an appropriations bill funding his beloved wall, can President Trump declare a national emergency and build the wall anyway? The answer depends on law and politics. The Constitution is the starting point. It says that the government — even the president — can’t spend money unless Congress passes a law authorizing the spending. Without a bill funding the wall, where can the president find the money? Several places, it turns out. The National Emergencies Act says that a presidential declaration of an emergency triggers a bunch of other provisions. One provision allows a president to spend already appropriated money for “military construction projects.” There’s a pot of about $10 billion available under that provision. Another allows him to divert the emergency money already appropriated for disaster relief.

According to the official records, U.S. workers went on strike seven times during 2017. That’s a particular nadir in the long decline of organized labor: the second-fewest work stoppages recorded by the U.S. Bureau of Labor Statistics since the agency started keeping track in the 1940s. ...Beyond the growing number of union alternatives, demonstrations by employees are part of a rise in political activity overall. The years since the 2016 election have witnessed the largest protests in U.S. history, inspiring a lot of people—particularly college-educated twentysomethings—to demonstrate for the first time. And while a Black Lives Matter protest or a Women’s March on Washington may seem unrelated to work, they can inspire people to speak out for other causes. “I think there’s a real desire for working people to not segment their lives so much,” says Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. Companies know that, too. That’s why places such as Comcast, Facebook, and Google gave workers time off to join political protests in 2016. The problem, Block says, is that political issues are often workplace issues, too. “Immigration, racial justice, gender equality—people are seeing these things as interconnected, and that’s giving rise to movements that aren’t so easy to characterize but are very powerful.”

In his State of the Union address Tuesday, President Trump promised legislation to invest in "the cutting edge industries of the future." But the speech was characteristically backward-looking. Trump talked up gains in manufacturing jobs and oil and gas exports, but didn't once mention the word "technology," nor any other tech policy issue, such as privacy, broadband, or antitrust. ...Last year, leaked documents revealed a proposal for the government to build a 5G network to complement commercial networks. The idea was widely panned across the political spectrum, and the White House denied that the idea was ever seriously considered. But, as Harvard Law professor Susan Crawford wrote for WIRED last year, a national program to build more fiber optic networks isn't a crazy idea.

When it comes to corporate crime, retribution and incapacitation get a bad rap. Now comes William Robert Thomas. Thomas is a Climenko Fellow and Lecturer on Law at Harvard Law School. He wants to rehabilitate retribution and incapacitation for corporate crime. To that end, he has written a law review article titled – Incapacitating Criminal Corporations (forthcoming Vanderbilt Law Review, 2019). “If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up,” Thomas writes. “Whatever fiction the criminal law entertains about corporate personhood, having an actual body to kick – and, by extension, a body to throw into prison – is not one of them.” “The ambition of this project is not to reject this obvious point, but rather to challenge the less-obvious claim it has come to represent – incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.”

"If there is going to be peace and legislation, there cannot be war and investigation." When all is said and done, this is the line people will remember. Beyond the teleprompter calls for unity and the predictable fears over immigration, this is the one line in President Trump's State of the Unionlast night that most stirred people. It has a nice poetic ring ring to it but a tragically flawed logic underlying it.  Too much form over content is always a dangerous tradeoff. Harvard Law professor Laurence Tribe, among others, wasted not a moment attacking it on Twitter. "One line stuck out like a sore thumb in Trump's State of the Union," Tribe tweeted. "'If there is going to be peace and legislation, there cannot be war and investigation.' That's a ridiculous threat. It equates the search for truth with war. That's deeply wrong. And it's unAmerican."

An op-ed by Noah Feldman:  President Donald Trump’s persistent threat to declare a national emergency and build a wall along the Mexican border is giving new life to the separation of powers — exactly the opposite of his intention. In a development that would bring a smile to the Founding Fathers if they could see it, Republican senators have started to say that it’s a constitutional problem for the president to attempt to bypass Congress by using an emergency to fund something that Congress clearly hasn’t authorized. Republicans are realizing that if Trump can use an emergency to get around Congress, so too could Democratic presidents in the future. The senators are looking out for the interests of the Senate, which is to say their own interests.

The United States prides itself on being a country of innovation. But in the land that built the internet, our ability to get access to high speed quality service is not on par with other countries in Europe and Asia. Harvard law professor Susan Crawford says as the country slips further behind, we jeopardize our place as a leader in the tech revolution. Susan Crawford’s new book is called “Fiber: The Coming Tech Revolution―And Why America Might Miss It.” GUESTS Susan Crawford, Professor, Harvard Law School; author of “Fiber: The Coming Tech Revolution—and Why America Might Miss It” and “Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded”

The tiny round one is vitamin K. There’s a gel cap (vitamin D), a two-tone capsule (that one protects his liver), a square pill (generic Singulair), and more — seven pill bottles sharing space on his dresser with a “Criminal Law and Its Processes” textbook that’s thick enough to be a weapon. Josh Hillman, a 23-year-old Harvard Law student from Alabama, has cystic fibrosis, the progressive genetic disease that causes frequent lung infections and wears on other organs. He has to pop enzymes with every meal to maximize the nutrients his body absorbs. While he sleeps, 1,200 calories of a nutritional shake drip through a tube directly into his stomach. There are the inhaled drugs — sometimes antibiotics, always a mucus thinner — that he breathes in through a nebulizer, and a blue vest that slips on, inflates, and vibrates, a 30-minute shaking session that he does twice a day to help clear the mucus that gunks up his airway and lungs. “It makes it a little bit difficult to write,” he said, his Southern accent rumbling like his wheeled desk chair was careening across cobblestones.

A book review by Ken Mack: In early 1946, many white Americans were jolted out of their complacency about race relations by a horrific instance of police violence against a demobilized black soldier. In February, just hours after his discharge, Sgt. Isaac Woodard Jr. broke Southern racial etiquette aboard a Greyhound bus in South Carolina by getting into a dispute with the driver and then failing to address the local police chief, whom the driver had summoned, as “sir.” The chief, Lynwood Shull, beat the decorated war veteran unconscious with a blackjack, driving the butt end of it into each of Woodard’s eye sockets and permanently blinding him. Woodard was fined $50, ostensibly for drunk and disorderly conduct, but managed to make it to New York City, where the NAACP publicized his story. Orson Welles featured Woodard’s heart-rending plight on his national radio program. Woody Guthrie composed a song titled “The Blinding of Isaac Woodard.” Civil rights activists used Woodard’s blinding to push President Harry Truman to embark on his unprecedentedly frank speeches and actions in favor of black equality. Nearly seven decades later, civil rights leader Julian Bond would still be moved to tears by his childhood recollections of Woodard’s blinding. In “Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring,” federal judge Richard Gergel presents a deeply researched account of Woodard’s tragic story and weaves it into a larger narrative.

House Democrats want to begin requiring presidential contenders to release their tax returns, which has some wondering: Can they do that? Some watching the debate unfold question whether the plan to require candidates to release a decade’s worth of tax returns would be constitutional. The Constitution lays out the qualifications for becoming president (being a natural born citizen; being at least 35 years old; being a resident for 14 years) and Congress cannot amend that list merely by passing a bill. But Laurence Tribe, a prominent constitutional scholar at Harvard Law School, says he doesn’t see a problem with Democrats’ plan. “If Congress were to add a substantive requirement that only some presidential candidates could possibly meet, such as a requirement of a particular level of education or prior officeholding, that would be unconstitutional,” he said in an email. “But a rule mandating financial disclosure of each candidate's tax returns would facilitate the operation of the electoral process without filtering out any political candidate.”

In May 2014, then-Attorney General Eric Holder announced charges against five members of the Chinese military. They'd allegedly hacked the computer networks of American companies and stolen everything from intellectual property and trade secrets to the firms' litigation strategies. ..."They embarrass the people that they name and they show that the United States has the ability to find people who are hacking into our country," said Jack Goldsmith, a Harvard law professor and former DOJ official in the George W. Bush administration. "But by themselves, that's a very, very small cost compared to the billions of dollars in secrets that our government says the Chinese are stealing." Goldsmith says the indictments not only have failed to deter China from further hacking, they may even send a signal of weakness because so few of those who have been charged actually are prosecuted.

Joe Kennedy started his push for “moral capitalism” by urging local business leaders to help address the country’s worsening income inequality. Now, the congressman is spelling out his ideas for how the federal government should tackle the problem.The Massachusetts Democrat spoke to a packed room at Harvard Law School on Monday, making his plea for a government unafraid to set new rules for a fair and just economy. ...Kennedy has clearly touched a nerve. Organizers had to move the Harvard event to a much larger room, due to crushing demand from students and the public, and a big waiting list remained. Sharon Block, a former Obama administration official who now runs Harvard Law’s Labor and Worklife Program, points to one reason the message resonates: The vast majority of people in the United States still feel like they’re struggling just to keep up with their bills, even after a nearly decadelong economic recovery.

Ever since the historical musical “Hamilton” began its march to near-universal infatuation, one group has noticeable withheld its applause — historians. Many academics argue the portrait of Alexander Hamilton, the star of our $10 bills, is a counterfeit. Now they’re escalating their fight. Ishmael Reed, who has been nominated twice for a National Book Award, has chosen to fight fire with fire — collecting his critique of Lin-Manuel Miranda’s acclaimed show into a play. ... Harvard Law professor and historian Annette Gordon-Reed, who has criticized the show in the past and is offering her historical consultation for the exhibit. She attended a reading of Reed’s play and sounded a hopeful note that both sides can come together. “There’s room for my earlier commentary, Mr. Reed’s take, the grand musical itself, and now a good faith effort to consider the musical’s subject in his real-world historical context— which is what the exhibit Is designed to do,” she said.

Hosted by June Grasso. Guests: Toby Harshaw, National Security writer for Bloomberg Opinion: "North Korea’s Nukes and the ‘Forgotten War.’" Noah Feldman, Professor at Harvard Law and Bloomberg Opinion columnist: "Roger Stone Indictment Draws Circle of Collusion." Noah Smith, Bloomberg Opinion columnist: "Too Many Americans Will Never Be Able to Retire." Stephen Gandel, Bloomberg Opinion columnist: "Don’t Bet on Buybacks to Bail Out Stock Market." Jonathan Bernstein, Bloomberg Opinion columnist: "Early Returns: Trump Could Face a Serious Primary Challenge."

President Trump hinted Friday that there’s “a good chance” he’ll declare a national emergency if Congress refuses to bankroll his long-promised border wall with Mexico, marking the strongest indication yet that he’s willing to make the legally dubious maneuver. ... Legal experts disagreed vehemently and questioned whether Trump foresees a court loss as a way to dodge blame from his right-wing base. “There’s no case for an emergency. Period,” tweeted Laurence Tribe, a professor of constitutional law at Harvard University. “If Trump pretends there’s a ‘national emergency’ and provokes the courts just so he can blame judges for his failure to build his stupid vanity wall, that’ll be one more abuse of power for Congress to consider.”