Media Mentions

An op-ed by Ryan Manucha ’19: Many are familiar with the issue of impartiality in the context of international-investment arbitral panels. Less talked about, however, is how these same concerns bear on arbitrators in disputes under the Canadian Free Trade Agreement. Canada’s provinces and territories are all party to the little-known Canadian Free Trade Agreement. It is the successor to the Agreement on Internal Trade of 1994. The CFTA is a hybrid between an internal free trade agreement and a domestic multi-lateral investment treat, and it includes a dispute-resolution mechanism akin to that which can be found in most international trade and investment arrangements.

An op-ed by Noah Feldman: Justice Clarence Thomas wants to get medieval with the First Amendment. In a fascinating and bizarre opinion issued Tuesday, Thomas invoked the original meaning of the Constitution and the 18th-century common law of libel to assault a landmark freedom-of-the-press decision, New York Times v. Sullivan. Thomas’s foray won’t become the law in the immediate future. He wrote the solo opinion as the U.S. Supreme Court declined to review the case of one of Bill Cosby’s accusers, who sought to bring a defamation claim against the comedian and convicted sex offender. But it’s important as a sign of the times because it reflects distrust of the news media.  

... Eviction initiations in Massachusetts spiked in 2008, following the Great Recession. Each year since then, landlords have sued about 40,000 heads of household across the state seeking to evict them, according to data gathered by the New England Center for Investigative Reporting. The state doesn’t track how many of these have resulted in actual evictions, but the Eviction Lab at Princeton University found that in 2016, there were roughly 15,708 forced removals in Massachusetts — an average of nearly 43 a day. ...Juliana Williams, a 68-year-old retired Boston public school teacher, sits on a bench outside of Courtroom 10 one day late last year. As she waits for the judge to call her case, she has plenty of company: yellow-shirted activists from City Life, there to show support. Also there is Nicole Summers, a lawyer who works for the WilmerHale Legal Services Center of Harvard Law School, as well as a law student who is helping with her case.

On Friday, President Donald Trump declared a national emergency in order to secure funding for the border wall. The declaration has been widely criticized as a legally questionable end run around Congress, which refused to fund the border wall in full in the latest shutdown deal that Trump himself signed. Indeed, even prominent Republicans warned the president that the move could set a dangerous precedent. ... Any president who takes climate change seriously should be wary of following in Trump's footsteps and using emergency powers to address global warming, according to Joseph Goffman, the executive director of Harvard Law School's Environmental and Energy Law Program—even if the courts ultimately uphold what Goffman says is a clear abuse of Trump's presidential powers. "First of all there's a possibility that congress will try to amend or change the statute in order to limit the president's power," Goffman says, "and so a deft successor to Trump would probably want to avoid provoking that." Second, he adds, any president who understands the scale of the societal transformations that climate change necessitates, and the broad political and public support that such efforts will require to succeed, would not want to anger an entire political party through unilateral action.

Danielle Teuscher decided to give DNA tests as presents last Christmas to her father, close friends and 5-year-old daughter, joining the growing number of people taking advantage of low-cost, accessible genetic testing. But the 23andMe test produced an unexpected result. Ms. Teuscher, 30, a nanny in Portland, Ore., said she unintentionally discovered the identity of the sperm donor she had used to conceive her young child. ...I. Glenn Cohen, a professor and bioethicist at Harvard Law School, agreed and questioned whether such a contract is “contrary to public policy” and thus unenforceable. The mother of a child conceived with donated sperm might well argue that in trying to determine whether the child has any inherited medical issues, she inadvertently discovered a donor’s identity. A sperm bank likely can’t prevent her from obtaining that medical information, he said.

The recent government shutdown damaged the Internal Revenue Service, an agency already struggling with budget cuts and aging computer systems, according to the IRS’s in-house watchdog. IRS employees are working through more than five million pieces of correspondence and tens of thousands of backlogged audit responses and amended returns, according to an annual report released Tuesday. ...Also, experts expect average refunds are likely to be larger this year, but fewer people are likely to get them, which presents its own challenge for the IRS. Keith Fogg, a clinical professor of law at Harvard Law School, said Tuesday that if 1% or 2% of taxpayers shift to owing money at filing time, that can create lots of extra work for the IRS as employees negotiate installment plans and respond to collections notices.“Even people who owe only a small amount of money, if they don’t have that small amount of money, [they] are going to put a big burden on the system,” he said.  

Sixteen states on Monday filed a federal lawsuit challenging President Trump’s national-emergency declaration to pay for a wall along the U.S.-Mexico border, setting up a showdown with the administration that could go to the Supreme Court and last through the 2020 election. ...The states’ best chance could be to argue that the border wall doesn’t meet the statutory definition of a military construction project, as the president asserts, Harvard law professor Mark Tushnet said.“It’s not a slam dunk for them,” he said, “But there’s a decent chance they will ultimately prevail.”

The human body generates antibodies when it senses invasion from a harmful source. So, too, in our body politic, when a malign force such as an authoritarian executive attacks the foundation of a democracy, a healthy democracy will respond. That process of fighting a dangerous executive — President Trump — began on Friday when he declared an national emergency to justify spending that Congress had declined to authorize (a funding bill the president had signed, by the way). ...Many of these suits, as well as any brought by landowners whose property is taken to build the wall, are likely to make it past the first skirmishes on “standing.” Constitutional scholar Laurence Tribe tells me, “The House has standing to challenge the circumvention of its appropriations power under the district court’s holding in House v. Burwell [challenging Obamacare].” He adds, “Others with standing are those concretely injured by either the impending withdrawal of funds (as with states like California), the threatened uses of eminent domain (as with ranchers on the border) or the defamatory lies about their safety as communities (as with El Paso).”

An op-ed by Cass Sunstein: A full evaluation of the legality of President Donald Trump’s decision to declare a national emergency, and to order the building of a wall between the U.S. and Mexico, is best deferred until the appearance of a supporting memorandum from the Justice Department. But even now, four points are clear – and they are at risk of getting lost in the national discussion. 1. It is wrong to say that if Trump can declare a national emergency, he can necessarily order the Defense secretary to build a wall.

Many critics claim that anti-trust enforcement has dangerously weakened since the 1980s, often citing the dominance of the tech giants as evidence of this. They argue that any benefit gained from Google’s free services or Amazon’s low prices is outweighed by their chokehold on suppliers, their possession of mountains of personal data, and more. Others have noted rising concentration outside of tech: two-thirds of U.S. industries became more concentrated between 1997 and 2012. ...Horizontal shareholding therefore hurts competition because, as Einer Elhauge of Harvard Law School has argued, it reduces “each individual firm’s incentives to cut prices or expand output by increasing the costs [to shareholders, and thus managers] of taking away sales from rivals.” These issues are easy to imagine with direct investors (such as activist hedge funds) who typically have more concentrated holdings and thus greater ability to influence practices within a company or industry.

A CNN legal analyst rebuked President Donald Trump's response to recent remarks from Deputy FBI Director Andrew McCabe, calling prominent public officials critiqued by Trump "patriotic." ... Other legal scholars criticized Trump's tweets. Laurence Tribe, a professor at Harvard Law School, also called McCabe a patriot. "By Donald Trump’s ignorant and constitutionally illiterate definition of 'treason,' it’s he and not Rosenstein or McCabe who’s committing it almost daily. They are patriots. He’s the one betraying our country," Tribe tweeted.

Long controversial, the practice by which public corporations use spare cash to buy back their own stock has turned into a policy flash point for both Democrats and Republicans. The basic allegation is that profits devoted to stock buybacks — $583 billion by S&P 500 companies during the first three quarters of 2018 — are profits not plowed back into new plants, equipment or higher wages. This is especially galling now, the critics argue, given that last year U.S. corporations got a huge tax cut, whose Republican authors advertised it as a boon to productivity and investment. ... Undoubtedly, stock buybacks favor corporate executives lucky enough to cash out, but to the extent this increases inequality, it mainly favors the very rich (CEOs) over the somewhat rich (shareholders). Opponents of buybacks commonly cite figures showing that they swallowed up 96 percent of S&P 500 profits between 2007 and 2016; research by Harvard professors Jesse M. Fried and Charles C.Y. Wang, however, suggests that the actual figure is more like 41.5 percent after accounting for new stock issuance and expenses for research and development. Contrary to the concerns about diverting investment funds, U.S. nonresidential investment and job creation have been rising for most of the past decade. When shareholders get cash for their stocks, the money doesn’t disappear; it flows through the economy, often as productive investment elsewhere.

After weeks of sparring with Congress, President Donald Trump invoked a national emergency Friday in an attempt to secure money for a barrier along the United States’ border with Mexico. The declaration came a day after the passage of a bipartisan spending bill that caps funding for the wall, a key Trump campaign promise, at just under $1.4 billion.... But declarations like Obama’s have not been wielded as a means to skirt Congress over funding disputes. “This is an unusual situation … because here a president asked for something and Congress said no, essentially, and now he’s going to declare an emergency to do what he couldn’t get Congress to do,” said Harvard Law professor Mark Tushnet. “That is new.”

A farming conference will address the implications of the rise in plant-based food for the environment, land use and Britain's farmers. The Grow Green conference, held at the British Library in London on 11 April, will explore how a plant-strong future can help meet climate change targets and what policies might support a transition towards it. It will see the launch of research findings from the Animal Law & Policy Program at Harvard Law School, modelling alternative agriculture production in the UK. The research will show the impact of a shift to plant-strong farming on national food sovereignty, protected forest and heathland areas, and carbon sequestration.

Democratic lawmakers, states and others mulling legal challenges to President Donald Trump’s national emergency declaration to obtain funds to build a U.S.-Mexico border wall face an uphill and probably losing battle in a showdown likely to be decided by the conservative-majority Supreme Court, legal experts said. ...Trump is running for re-election next year and a loss would mean his presidency ends in January 2021. It is possible the legal fight over the emergency declaration might not be resolved by then. “My guess is the money, the significant amount of money, won’t flow before the 2020 election,” Harvard Law School professor Mark Tushnet said.

Despite all the Victorian-era townhouses and quaint colonial streets, Boston owes more than you might think to the Bauhaus. ...The Busch-Reisinger Museum exhibit is not the only exhibit to catch in this Bauhaus 100th birthday year. In the University Research Gallery at Harvard, Hans Arp’s “Constellations II” is on view for the first time in 15 years. Commissioned by Gropius for a dining room in the Harvard Graduate Center, it consists of 13 biomorphic shapes inspired, in part, by the grouping of stars in the night sky. Other Harvard exhibits include “The Bauhaus at Home and Abroad: Selections from the Papers of Walter Gropius, Lyonel Feininger, and Andor Weininger” on view in the Amy Lowell Room at Houghton Library through May 24 and “Creating Community: Harvard Law School and the Bauhaus,” on display in the Caspersen Room at Harvard Law's Langdell Hall through July 31.

Harvard Law School Professor, Laurence Tribe, joins MSNBC's Katy Tur to discuss the legal process surrounding declaring a national emergency and what could happen next.

1/ The essential problem with the widespread notion that Trump is declaring an emergency when there is no emergency is this: — Jack Goldsmith (@jacklgoldsmith)…

An op-ed by Noah Feldman: In retrospect, it seems obvious that President Donald Trump would want to have his cake and eat it, too. That’s essentially what he’s doing Friday by both signing a government funding bill that provides $1.375 billion for a barrier with Mexico and also declaring a national emergency to allocate other federal funds for the same purpose.

An article by Shailin Thomas '21 and Arthur Caplan, PhD: The Orphan Drug Act (ODA) was first passed in 1983 to address the concern that pharmaceutical manufacturers were not pursuing drug development for diseases that affect limited patient populations. The concern was in part that companies viewed pursuing these therapies as undesirable because the markets for them are small in comparison with the markets for more widespread chronic diseases. To promote the development of orphan drug therapies, the ODA provided companies that engaged in research for drugs with populations of fewer than 200 000 patients with tax incentives, research subsidies, and extended patent protection.

U.S. News & World Report plans to launch a new law school ranking—one that will sort schools according to the “scholarly impact” of their faculties. The new ranking, announced Wednesday, will be separate from the closely watched “Best Law Schools” ranking, at least initially. ... Every three years, they update their citations data to show the most cited faculties and individual scholars. (The 2018 update showed Yale Law School, Harvard Law School, and the University of Chicago to have the greatest scholarly impact.)