Media Mentions

An op-ed by Noah Feldman. Stuck. That’s where almost everyone seems to be when it comes to the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. We’re in a week of pseudo-calm while the Federal Bureau of Investigation looks into allegations of sexual misconduct against President Donald Trump’s nominee. But let’s be honest with ourselves. It’s almost impossible to imagine anything emerging from the investigation that would make Kavanaugh’s opponents or supporters change their minds.

An op-ed by Noah Feldman. The temperament question has come to the heated debate about the confirmation of Judge Brett Kavanaugh. The basic idea is that by raising his voice during the final part of his confirmation hearing, discourteously interrupting and confronting senators, and depicting the charges against him as politically motivated, the nominee showed himself to have a character not suitable for a U.S. Supreme Court justice. More than 1,000 of my law professor colleagues have signed a letter, addressed to the U.S. Senate and published by the New York Times, opposing Kavanaugh’s confirmation on these grounds...I am nevertheless skeptical of the temperament argument, at least when taken in isolation. It’s not that Kavanaugh’s manner and tactics at the hearing last week seemed normal or acceptable...Rather, what I find doubtful about the temperament argument is that several of the greatest Supreme Court justices had disastrously bad, highly unjudicial temperaments.

Roughly two dozen Harvard Law School professors have signed a New York Times editorial arguing that the United States Senate should not confirm Judge Brett M. Kavanaugh as an Associate Justice of the Supreme Court. Harvard affiliates — including former Law School Dean Martha L. Minow and Laurence Tribe — joined more than 1,000 law professors across the country in signing the editorial, published online Wednesday. The professors wrote that Kavanaugh displayed a lack of “impartiality and judicial temperament requisite to sit on the highest court of our land” in the heated testimony he gave during a nationally televised hearing held Sept. 27 in front of the Senate Judiciary Committee....As of late Wednesday, the letter had been signed by the following: Sabi Ardalan, Christopher T. Bavitz, Elizabeth Bartholet, Christine Desan, Susan H. Farbstein, Nancy Gertner, Robert Greenwald, Michael Gregory, Janet Halley, Jon Hanson, Adriaan Lanni, Bruce H. Mann, Frank Michelman, Martha Minow, Robert H. Mnookin, Intisar Rabb, Daphna Renan, David L. Shapiro, Joseph William Singer, Carol S. Steiker, Matthew C. Stephenson, Laurence Tribe, Lucie White, Alex Whiting, Jonathan Zittrain

In a landmark 247-page opinion issued Monday, Vice Chancellor Travis Laster of Delaware Chancery Court concluded that the German healthcare company Fresenius can walk away from its $4.75 billion deal to acquire the U.S. generic drugmaker Akorn because Akorn’s business experienced a material adverse effect after the agreement was signed...I asked three law profs – Brian Quinn of Boston College, John Coates of Harvard and Albert Choi of the University of Virginia - for their early thoughts on the implications of Vice Chancellor Laster’s decision.

An op-ed by Laurence Tribe. Several senators have said they would not vote to confirm Judge Brett Kavanaugh as a Supreme Court justice if they believed he would vote to undo the basic protections for women upheld in Roe v. Wade and other cases. So if his testimony and his meetings with those senators had exposed that as his almost-certain path, they would vote no. But the only reason his public testimony and private meetings didn’t reveal such a clear inclination is that Judge Kavanaugh dissembled about his views, calling the Supreme Court’s abortion rulings “precedent on precedent,” as though that rendered them safe from his slippery keyboard. The truth is it does nothing of the kind. Which means that senators who have, rightly or wrongly, made that a litmus test face a rendezvous with destiny in deciding on this nominee.

Close to 1,000 law professors across the country have signed a letter to the U.S. Senate stating that Brett Kavanaugh lacks the “judicial temperament” necessary for a seat on the U.S. Supreme Court. “We regret that we feel compelled to write to you to provide our views that at the Senate hearings on Thursday, September 27, 2018, the Honorable Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land,” the letter reads. The list of signatories is growing by the hour, and organizers plan to send the letter to senators on Thursday. As of Wednesday morning, 907 professors from 154 law schools had signed on. They included University of California, Berkeley School of Law Dean Erwin Chemerinsky; former Harvard Law Dean Martha Minow, legal ethics expert and Stanford Law professor Deborah Rhode; and multiple professors from Kavanaugh’s alma mater, Yale Law School, and Harvard Law School

An op-ed by Cass Sunstein. The Environmental Protection Agency is reportedly planning to propose a significant weakening of its mercury regulation, which is designed to protect public health. The agency’s plan includes an idea that would be simultaneously stupid and cruel — and that could lead to thousands of premature deaths.

Securities and Exchange Commission officials were understandably taken aback on Thursday morning when Tesla’s board — and its chairman, Elon Musk — abruptly pulled out of a carefully crafted settlement....Independent directors frequently face difficulty asserting themselves in any company with an outsize figure like Mr. Musk, whether it be a founder, controlling shareholder or powerful chief executive, said Lucian Bebchuk, a professor at Harvard Law School and an expert in corporate governance. Such people can often replace any director who crosses them, he said. "Adding two independent directors can be expected to help, but its impact is likely to be limited," Professor Bebchuk said. "As courts and governance researchers have long recognized, the presence of a dominant shareholder is likely to reduce the effectiveness of independent directors as overseers of the C.E.O.'s decisions and behavior."

...McConnell is right in one respect: The longer Kavanaugh hangs out there the less voters approve of him and the more serious concerns about his political bias are raised. As to the latter, constitutional scholar Laurence H. Tribe is one of many legal gurus who argue Kavanaugh’s rant made it impossible for him to serve without eroding the Supreme Court’s credibility. “In Caperton v. Massey Coal, the court held that a judge politically beholden to one of the litigants must recuse himself, and in Williams-Yulee v. Florida Bar, it held that the need to preserve judicial impartiality trumps the rights of judicial candidates to solicit campaign contributions,” Tribe writes in the New York Times.

...Urs Gasser, LL.M. ’03, is executive director of the Berkman Klein Center for Internet & Society at Harvard University and a professor of practice at Harvard Law School. His research and teaching focus on information law and policy, and he writes frequently about privacy, data protection, and the regulation of digital technology. Gasser discussed the state of data privacy with the Gazette via email and suggested what might be done to protect users from companies that profit from people’s data.

..."They’re following a precedent from Great Britain, which was followed by most but not all of the states, which is the idea of tenure during good behavior," said Harvard Law Professor Michael Klarman, author of "Constitutional Convention." Klarman said the reason for that lifetime appointment was simple: To cultivate judicial independence. If you never have to worry about being re-elected or re-appointed then, "there’s no reason to tailor your decisions to the pleasure of the institution that does the appointing," Klarman said.

An op-ed by Susan Crawford. This is a story that defies two strongly held beliefs. The first—embraced fervently by today's FCC—is that the private marketplace is delivering world-class internet access infrastructure at low prices to all Americans, particularly in urban areas. The second is that cities are so busy competing that they are incapable of cooperating with one another, particularly when they have little in common save proximity. These two beliefs aren’t necessarily true.

The trade war really is on — counterproductive and unnecessary and yet likely to last...That said, the W.T.O. as currently structured cannot adequately deal with a state-driven economy like China’s, as Mark Wu, a law professor at Harvard, has argued. Yes, China has cut back on directly subsidizing exports, a clear violation of W.T.O. guidelines. But many Chinese companies still benefit indirectly from access to underpriced state-owned land and privileged relations with local authorities and banks, and those issues are not explicitly covered in the regulations.

An op-ed by Ryan Manucha `19. Late Sunday night, U.S. and Canadian negotiators announced a tentative NAFTA overhaul under the newly renamed “United States-Mexico-Canada Agreement.” There will be much discussion about the buzzier issues, from dairy to steel to Chapter 19. But the USMCA also included a blink-and-you’ll-miss-it side-letter between Canada and the U.S. that represented the end of a long saga that had been happening alongside the negotiations—and has been almost as fraught as the broader negotiations themselves—that was all about wine. Yes, wine: specifically, British Columbia’s wine. The province’s discriminatory regulation—which exclusively reserves wine shelf space in B.C. grocery stores for solely B.C. wines, with foreign wines available to consumers in provincial liquor stores—had repeatedly drawn the ire of Donald Trump’s administration throughout the course of NAFTA renegotiations.

...Mehl soon learned she was one of 950 patients whose genetic material was destroyed when the temperature inside the storage tank rose more than 150 degrees...“Any attempt to regulate reproductive technology almost inevitably leads to difficult questions relating to abortion,” says I. Glenn Cohen, director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “As a result, people have been shy, including those on the left who might be interested in pushing regulation in this area, because once they do so, there’s a real possibility it ends up resulting in restricting women’s reproductive rights.”

In the days before Harvard Law School announced embattled Supreme Court nominee Brett M. Kavanaugh will not teach in Cambridge this January, undergraduates eager to block his return to campus struck on a new strategy: file Title IX complaints against the conservative judge...Jeannie Suk Gersen, a professor at the Law School and a Title IX expert who has written extensively about Kavanaugh’s confirmation, said that — while she supports the students’ freedom to protest the nominee’s former teaching role at Harvard — the notion of filing Title IX complaints is “misplaced.” “Such an abuse of process would undermine the legitimacy and credibility of complaints that the Title IX process is intended to deal with, as well as of the Title IX office to focus on its duties,” Suk Gersen wrote in an email. “It might be effective in drawing further attention to some students’ objection to Kavanaugh’s teaching appointment, but I don’t expect him to be found to have violated Harvard University’s Sexual & Gender-Based Harassment Policy based on the currently known public allegations against him.” Janet Halley, another Law School professor with a background in Title IX law, also called the students’ strategy of filing formal complaints unlikely to succeed. “I urge the students to divert their energy from this implausible claim that he’s going to create a sexually hostile environment by teaching at the Law School to the really grand issue of whether he’s fit to be in his current judgeship or promoted to the Supreme Court,” Halley said.

...“From our perspective, it feels like a failure by our administration to respond to our students first and to think about what we need to feel supported here and to feel like women are valued here,” said Molly Coleman, one of four students who wrote an op-ed in the Harvard Law Record calling for the school to investigate Kavanaugh and possibly remove him from the faculty. “We’ve had walkouts. We’ve had letters to the dean. The student body is immensely concerned about this, and to have so little response sends a strong statement that the students aren’t the priority.”...“I think I’d give them a failing grade on their response,” said Katherine Peiffer, a second-year law student who is an organizer with the student-run Pipeline Parity Project. “There’s a huge groundswell of activism that’s going on and we’re very concerned. And the law school has been silent on this. Even if Kavanaugh weren’t a professor here, we would want them to speak out. But especially given the fact that he’s a professor and is slated to teach a class in a couple of months, we feel like this response has been lacking.”

Embattled Supreme Court nominee Brett M. Kavanaugh will not return to teach at Harvard Law School in January, according to an email administrators sent to Law students Monday evening...Alexa R. Richardson [`21], the head organizer of the section that sent these letters, wrote in an email Monday that she and other section members received responses from most of the professors contacted.The professors replied “saying they passed on our concerns to the administration,” Richardson wrote. Some instructors noted that “they were moved/thanked us for our efforts,” she added.

An op-ed by Laurence Tribe. Much might be said about Judge Brett Kavanaugh’s possible confirmation to the Supreme Court: in terms of his still only partly disclosed professional record, the allegations of sexual assault and his candor, or lack of it, in testifying before the Senate Judiciary Committee. But apart from all that — and apart from whatever the reopened F.B.I. investigation might reveal — the judge himself has unwittingly provided the most compelling argument against his elevation to that court. His intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies guilty of a “calculated and orchestrated political hit” do more than simply display a strikingly injudicious temperament. They disqualify him from participating in a wide range of the cases that may come before the Supreme Court.

An op-ed by Andrew Manuel Crespo. Two years ago, a federal court of appeals held that polygraph tests are “an important law enforcement tool” that can help investigators “test the credibility of witnesses” and “screen applicants” for “critical” government positions. The judge who wrote that opinion: Brett M. Kavanaugh. Last week, the Senate Judiciary Committee asked Kavanaugh whether he would be willing to take a polygraph test regarding the multiple sexual assault allegations he faces as he seeks a seat on the Supreme Court. Considering such a request himself, Kavanaugh departed from his prior judicial opinion and told the Senate that polygraphs are “not reliable.” But still, when pressed by Sen. Kamala D. Harris (D-Calif.) about taking one, Kavanaugh ultimately said, “I’ll do whatever the committee wants.”

Every year, tens of thousands of cases wind up in secret court sessions — formally known as “show cause hearings” — that are presided over by court clerks and usually held for suspects who haven’t been arrested and don’t pose a flight risk or danger to others. People are generally entitled to these hearings for misdemeanors, but police can request them for felonies as well. The quality of justice behind the clerks’ closed doors can depend on where the hearing is held, who you know, or the color of your skin, according to a Spotlight Team investigation...Criminal defense attorney John Salsberg said he has seen countless cases that have been correctly resolved in clerks’ hearings — cases that should never have gone into the regular criminal justice system. Since the 1980s, he has worked as a supervising attorney with the Harvard Defenders, a Harvard Law School organization that represents individuals at these criminal proceedings. “Just because something’s a crime doesn’t mean it needs to be prosecuted,” Salsberg said. “And I think the clerks have enough experience to know which complaints should end up issuing and which shouldn’t.”