Media Mentions

Sounding the alarm on index funds. How their runaway success has reshaped power and accountability in boardrooms and on Wall Street. Guests: John Coates, professor of law and economics at Harvard Law School where he teaches corporate governance, mergers and acquisitions and finance. Member of the Investor Advisory Committee of the Securities and Exchanges Commission.

Harvard Law School has appointed Mark C. Jefferson as its next assistant dean for community engagement and equity. Jefferson joined Harvard Law in 2017, working as director of community engagement and equity. Before coming to the school, Jefferson served as assistant director of admissions at the University of Michigan Law School, according to Harvard Law Today. Under his new role, Jefferson will continue to work in the Dean of Students Office on topics such as academic advising and peer mentorship development.

Friday’s filings by federal prosecutors painted President Donald Trump as aiding in and conspiring to commit a federal crime. ... The harsh reality is that any supposed “immunity” a president has from indictment while in office expires when his time is over. For Trump, that could be on January 20, 2021, if the statute of limitations — the deadline by which prosecutors must bring criminal charges — has not yet expired. “People recite the mantra, ‘No one is above the law’ yet fail to acknowledge the tension between the principle and the idea that a president could be immune from indictment until he’s out of office,” said Laurence Tribe, professor of constitutional law at Harvard.

Stock index funds have grown so popular that they now command $4.6 trillion in assets. That might seem like a good thing. After all, index funds have “democratized” investing and simplified the process for the average person. But the truth is that index funds have gotten so big that they now pose a major risk to our economy — and even to capitalism itself. ... Harvard Law School professor John Coates likes to say that index funds create “social benefits” in the form of lower expenses. That’s true, but it is only captures a piece of the picture.Because even when active managers underperform as they charge higher fees than index funds, they are still adding lots of value in our economic system.

Pew Research Center asked 979 technology experts, business and policy leaders, scientists and science-minded activists and the like just how they thought artificial intelligence would impact humans by the year 2030 — and while 63 percent waxed positive, another 37 percent warned of the negatives. ... As Judith Donath, faculty fellow at Harvard University’s Berkman Klein Center for Internet & Society said, in her response to the Pew survey: “By 2030, most social situations will be facilitated by bots. … At home, parents will engage skilled bots to help kids with homework and catalyze dinner conversations. At work, bots will run meetings. A bot confidant will be considered essential for psychological well-being, and we’ll increasingly turn to such companions for advice ranging from what to wear to whom to marry.”

After months of negotiations, federal lawmakers have compromised on a new farm bill, putting the legislation on track to be passed by both the House and Senate this week. ... The compromise bill, unveiled Monday night, leaves out controversial work requirements for food stamp recipients that were part of the House version of the bill -- a key sticking point during negotiations. It also maintains conservation programs the House bill proposed eliminating. It seems to generally, with a few exceptions, maintain programs as they have been in the past," said Erika Dunyak, a clinical fellow at the Harvard Law School Food Law and Policy Clinic.

An op-ed by Noah Feldman. Justice Clarence Thomas has a message for Justice Brett Kavanaugh: Let’s roll. Kavanaugh, however, isn’t yet taking up the invitation. The newest member of the U.S. Supreme Court may eventually join a conservative majority of five to roll back large swaths of liberal jurisprudence. Yet it’s noteworthy that Thomas is already impatient with Kavanaugh, just a couple of months into the latter’s life tenure. All this is the takeaway from the tea leaves of an otherwise opaque opinion issued Monday with Thomas dissenting from the court’s refusal to hear a case brought by Planned Parenthood.

Partisan rhetoric in Washington is intensifying, as new court filings suggest President Trump may have skirted campaign finance laws. Federal prosecutors are recommending prison time for two former members of Trump's inner circle: former campaign chairman Paul Manafort and his personal attorney Michael Cohen. At the same time, the president's current circle continues to break apart with White House Chief of Staff John Kelly planning to leave at the end of the year. Guests...Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR legal analyst.

Trump might think that he has immunity from prosecution, but Laurence Tribe explains there's nothing in the Constitution that prevents the indictment of a sitting president.

An op-ed by Laurence Tribe. Only President Trump seems not to have noticed — or at least refuses to acknowledge — that the US Attorney for the Southern District of New York, in his Dec. 7 memo regarding Michael Cohen’s sentencing, has laid the predicate for indicting the president for feloniously “directing” a scheme to defraud the public into voting for him under false pretenses. Trump’s lawyers may well have advised him not to worry about that minor matter because the Justice Department policy of not indicting a sitting president will presumably be followed by all Justice Department prosecutors, including both special counsel Robert Mueller and the prosecutors of the Southern District. But what nobody seems to have noticed is that the policy in question is probably unconstitutional.

Global law firms are turning the tables on the Big Four accounting firms’ incursions into the legal industry by setting up consultancies that assist clients with non-legal matters...“Every managing partner I know of is trying to figure out how they’re going to compete with the Big Four,” David Wilkins of Harvard Law School told Bloomberg Law. “They know they’re coming.”

...Randall Kennedy: The most memorable book of the year for me was one I have read and reread at least annually over the past few years: Lee Baer’s “The Imp of the Mind: Exploring the Silent Epidemic of Obsessive Bad Thoughts.”...Adrian Vermeule: I’m somewhat at a loss, because I rarely read new books, on principle. Most are bad. Time, that piercing reviewer of books, relegates so many to obscurity; and time’s judgments often take decades to ripen. Two old books I’ve read in the past year have deepened my understanding of sovereignty—the concept from high political and constitutional theory that is much in the news and that underlies issues of elections, populism, borders and European Union membership.

Among President Trump’s major accomplishments is the booming industry in books about him, his administration, the state of democracy in America, the rise of autocracy in America and abroad, the reasons for his rise, the bases of his support, the state of the Republican Party, the state of his mental health or lack thereof, the chaos in his White House and so on. Not all are strictly about Trump — the fact is the conditions and dynamics that brought us Trump long preceded him, and the changes in the fabric of our Republic are paralleled by changes in other longstanding democracies around the globe. Two of the nation’s top public intellectuals are adding to this expansive genre with short books designed for broad audiences. Neither is fundamentally about Trump; indeed, one barely mentions the president. But both are about the America that Trump’s ascent now typifies...“America, Compromised” is by Lawrence Lessig, a Harvard law professor, the former head of the Edmond J. Safra Center for Ethics and an activist on campaign finance.

A Harvard University lecturer tentatively set the Guinness World Record on Saturday for the most amount of pull-ups in one minute. Again. Adam Sandel, 32, who lectures on Social Studies and is also pursuing a law degree at Harvard, set the record -- which he had set before -- at a fitness competition in Orlando, Fla.

Northeastern Minnesota Chief Public Defender Dan Lew sees common threads in the pretrial incarceration population at the St. Louis County Jail."The poor stay in jail, leaving aside public safety," he said. "Poverty and a bail system that doesn't consider ability to pay is the main contributor." As many jurisdictions nationwide begin to re-examine bail practices and, in some cases, implement sweeping reforms, Lew is keeping a close eye on trends and advocating for action locally...Colin Doyle, an attorney at Harvard Law School's Criminal Justice Policy Program, said it is unconstitutional to detain a pretrial defendant simply because they cannot afford to post bond. Yet he said the country has a "staggering pretrial incarceration rate" largely attributable to bail practices, many of which are built on long-standing norms that aren't codified into law. "(Reform) isn't a radical idea," Doyle said. "What the U.S. is already doing is radical. The U.S. is an outlier."

An op-ed by Max M. Schanzenbach and Robert H. Sitkoff. Trustees of pensions, university endowments and trust funds are facing renewed pressure to do social good while investing other people’s money. It isn’t only student activists but the United Nations and even BlackRock CEO Larry Fink who argue that environmental, social and governance investing, or ESG, will do good for the world while improving returns for beneficiaries. Thousands of investment managers have pledged to abide by a U.N.-sponsored statement of ESG principles. Yet the zealous push for fiduciaries to embrace ESG faces barriers under longstanding American law—with good reason. In general, the law says little about what people may do with their own money. But it has much to say about what trustees and other investment fiduciaries do with their beneficiaries’ money.

The Pipeline Parity Project — a Harvard Law School student group that has pushed law firms to remove controversial arbitration policies — celebrated again Friday after the firm Kirkland & Ellis announced it was removing the mandatory agreements for all of its employees...In an interview last week, Pipeline Parity Project Member and second-year Law student Alexandra “Vail” Kohnert-Yount said that though the firm had dropped its mandatory agreements for associates, the group continued its efforts to convince Kirkland & Ellis to drop the agreements for all employees...“We’re glad that firms like Kirkland & Ellis and Sidley Austin are doing the right thing by dropping forced arbitration for all of their employees, not just the ones with law degrees,” Vail Kohnert-Yount said, referencing another firm that also changed their policy recently.

An op-ed by Susan Crawford. When you make a phone call, I'm willing to bet you don't think of the phone line as having free speech rights of its own. That phone line has one job: getting the sound of your voice to the place you want it to go. It isn't planning to deliver a speech or getting ready to go on Broadway. Although life may be boring for the phone line as a result, it is actually getting a great deal: The phone line can't get blamed for whatever lousy thing you say during your call. But if the cable industry gets its way, internet access—today's basic utility—will be treated just like the press for First Amendment purposes, giving it a free pass in perpetuity from any governmental oversight.

Earth Day is usually an occasion for politicians to extol natural wonders and our efforts to preserve them. For Bernard L. McNamee, who today became one of the nation’s top energy regulators, it was an opportunity to praise oil and coal...Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, told Yahoo News that McNamee should be “disqualified” from handling matters related to this past work with the Department of Energy. McNamee has made no indication that he would make such a recusal.

This is the tip of a very large iceberg -- the international Trump Organization with hotels, properties and licensing deals around the globe. How many other foreign countries engaged in similar conduct that would line the president’s pockets, or granted him things of value in their country...“The three emoluments clause lawsuits hit Trump where it hurts the most: in his insatiable greed,” constitutional scholar Laurence Tribe says. He predicts, “The evidence they produce will cement the case that Donald Trump, in violation of his Oath, has been abusing his office in ways calculated to corruptly compromise his decisions about Saudi Arabia, Turkey, China, and, of course, Russia and thereby giving ruthless foreign powers hidden leverage over him as president — something our Constitution was designed to prevent.”

An op-ed by Noah Feldman. Repatriating looted art has become an everyday reality. In the last few months alone, U.S. museums returned two statues stolen from India, and Thailand made an official request for the return of 23 works in American collections. Although reasonable people can disagree about the right home for artifacts like the Elgin marbles, which Greece wants back from the British Museum, or the Koh-i-noor diamond, which India believes should be returned from the collection of crown jewels kept in the Tower of London, it’s safe to say that there is often a credible ethical claim to be made in favor of returning works to the nations from which they were once taken.