Media Mentions

Information about Elon Musk's efforts to take Tesla Inc private is scarce. But some small investors wonder if top funds have an edge...Harvard Law School professor John Coates said U.S. Securities and Exchange Commission rules on fair disclosure allow the selective sharing of some details if recipients agree not to trade until what they are told becomes public. But it is hard to know how those limits might play out for Musk's outreach. "With Tesla however nothing normal is normal. So who knows," Coates said via email.

President Trump proposed Friday that public companies should report their financial results only twice a year instead of quarterly...“If companies report only every six months, then there could be more damage, not less,” says Mark Roe, a professor of corporate and business law at Harvard Law School. Without quarterly updates, “the stock price could drift even farther out of whack from fundamentals, and then the temptation for management to distort earnings could potentially be even greater.”

The Trump administration rolled out its proposal for gutting former President Barack Obama’s most sweeping climate change regulation Tuesday — a move that could also block any future Democratic president from trying to put it back together....Former Obama White House climate aide Jody Freeman expressed some concern that the court battle to follow could leave EPA with diminished authority to regulate greenhouse gases at all, unless Congress steps in with a new law. “There’s certainly a legal pathway in which a court could lock in such a narrow reading that it would be very problematic for a future administration,” said Freeman, who is now director of Harvard Law School’s environment and energy program. “There’s also a pathway in which a court could uphold what one administration does and leave room for another to change its mind.”

A conversation with Bonnie Docherty. When drafting a treaty on the laws of war at the end of the 19th century, diplomats could not foresee the future of weapons development. But they did adopt a legal and moral standard for judging new technology not covered by existing treaty language. This standard, known as the Martens Clause, has survived generations of international humanitarian law and gained renewed relevance in a world where autonomous weapons are on the brink of making their own determinations about whom to shoot and when. The Martens Clause calls on countries not to use weapons that depart “from the principles of humanity and from the dictates of public conscience.”

An op-ed by Cass Sunstein. A major source of the opioid crisis is overprescribing by well-meaning doctors who want to relieve patients’ pain, but are insufficiently focused on the risks. Could behavioral economics help change that — and save lives?...What can be done? Led by the University of Southern California’s Jason Doctor, a team of researchers found a dramatic way to nudge doctors to reduce opioid prescriptions. Their starting point was simple: When patients die, clinicians often don’t find out.

An op-ed by Noah Feldman. Lawyers are not supposed to disclose conversations with their clients, at least not without a fight over attorney-client confidentiality. Senior presidential advisers aren’t supposed to discuss consultations with their boss, at least not without first asserting executive privilege. Yet we now know, thanks to the New York Times, that White House Counsel Don McGahn has been cooperating with Robert Mueller’s investigation of Donald Trump. Why is the world of normal procedures being turned upside down? There’s a technical answer; and then there’s the deeper logic (or illogic) behind it: the bizarre nature of decision-making in the Trump presidency.

Bayer AG unit Monsanto faces long odds on an appeal blaming an “inflamed” jury and “junk science” for a verdict of $289 million in damages to a man who said the company’s Roundup weed killer caused his cancer, according to some legal experts...David Rosenberg, a professor at Harvard Law School, said editorializing by lawyers in a courtroom needed to be truly egregious for a judge to even consider throwing out a verdict. “Such remarks are part of the game during trials and I can’t see a single reason why Monsanto would think an appeal would be helpful on those grounds,” Rosenberg said.

Trump says he wants to consider requiring companies to report their earnings every six months instead of every three. It would ultimately cut back on the amount of paperwork companies have to contend with, but it would also mean investors would get updated less often about how a company is doing. [Mark Roe] is a professor at Harvard Law School..."The problem is if the firm has gone dark for six months instead of three months, the chances of the stock market's expectations being out of line with what really happens increases."

Paul Manafort’s lawyers declined Tuesday to call any witnesses to defend him against charges of bank and tax fraud. Mr. Manafort, President Trump’s former campaign chairman, also told the judge that he did not want to testify, clearing the way for closing arguments from both sides and the start of jury deliberations on Wednesday. The decision by the defense to rest without presenting its own evidence was not unusual. “The defense believes it has made its point through cross-examination,” said Nancy Gertner, a Harvard Law School professor and a former federal judge.

Harvard Law School Professor Laurence Tribe joins Katy Tur to discuss how the President’s threat to strip former intelligence officials of their White House security clearances fits into the Special Counsel’s investigation.

...“It’s idiotic if its purpose is to prevail in the arbitration,” says constitutional scholar Larry Tribe. “It’s not necessarily idiotic if its only purpose is to continue deflecting attention from vastly more serious issues — like what Trump and Putin said to one another during that two-hour meeting in Helsinki, or which version of [Rudolph W.] Giuliani’s defense of Trump’s conversation with [former FBI director James] Comey about going easy on [Michael] Flynn the president wants us to accept.”

...the S.G.—no matter the administration—has become more political. How did this esteemed post, which the Court long regarded as the keel keeping the government balanced when it threatened to heel too far to the left or right, come to contribute to forceful tacks one way or the other, to the Court’s seeming indifference? A comparison of the divergent approaches of Harvard Law School’s late Archibald Cox ’34, LL.B. ’37, LL.D. ’75, as S.G. in the 1960s and Charles Fried in the post in the 1980s (he is the Beneficial professor of law) illuminates these important changes.

President Trump plans this week to unveil a proposal that would empower states to establish emission standards for coal-fired power plants rather than speeding their retirement — a major overhaul of the Obama administration’s signature climate policy...Joseph Goffman, executive director of Harvard Law School’s Environmental Law Program and one of the architects of the Obama-era rule, said in a phone interview that the higher emissions that would result from the Trump proposal would damage the climate as well as public health. “These numbers tell the story, that they really remain committed not to do anything to address greenhouse gas emissions,” said Goffman, who served as associate assistant administrator for climate in the EPA’s Office of Air and Radiation between 2009 and 2017. “They show not merely indifference to climate change but really, opposition to doing anything about climate change.”

The Labor Department has shown scant signs of progress on revising an Obama-era rule to expand overtime pay eligibility, more than a year after embarking on its mission...“When you do it right, this kind of rulemaking is hard,” said Sharon Block, who coordinated the 2016 overtime rulemaking as head of the Obama DOL’s policy shop. “I don’t think this Department of Labor has shown themselves to be able to do this kind of complex difficult rulemaking. I have no idea if they have the capacity to do it in the time they have left.”

After the New York Times reported that White House counsel Donald McGahn had spent 30 hours with special counsel Robert S. Mueller III and his team, the Trump spin machine came up with two (both false) responses...The assertion that “lawyers made a mistake” or “Trump was just being transparent” in letting McGahn testify is largely hogwash. Constitutional scholar Larry Tribe tells me: “There is no attorney-client privilege for communications between the president and counsel for a government entity like the office of the presidency. That is of course McGahn’s role, in contrast with Giuliani’s.”

An op-ed by Jack Goldsmith. President Trump’s revocation of former CIA Director John Brennan’s security clearance brings together in an unfortunate way two pathological trends in the Trump era, and highlights the conundrum of the former intelligence official who wishes to speak out against the president’s attacks on the Russia investigation and the intelligence community more generally. The first trend is the politicization of intelligence.

...perhaps another body of Kavanaugh’s work warrants closer inspection: the twenty-four articles that he wrote, from 1983 to ’86, as a sports reporter for the Yale Daily News...Laurence Tribe, a Harvard Law professor who mentored Barack Obama, zeroed in on the lead sentence in Kavanaugh’s account of a midseason game against Cornell: “In basketball, as in few other team sports, it is possible for one person to completely dominate a game.” Was this a harmless observation? Tribe noted, “Kavanaugh’s seeming fascination with single-player domination might be a muscular view of executive power.” On the other hand, he found a departure from Kavanaugh’s typical jurisprudence in “Dartmouth Rally Upends Streak.” “Kavanaugh complained that the refs let the game ‘get completely out of control’ as Dartmouth players ‘consistently hammered’ a Yalie ‘without the whistle blowing’ once,” Tribe said. “One might see in that a rare early condemnation of judicial restraint.”

An op-ed by Nancy Gertner. It is not unusual for judges to intervene in court proceedings from time to time — to direct the lawyers to move the case along or to admonish them that evidence is repetitive. The judge's role is to act not as a "mere moderator," as the Supreme Court noted in Herron v. Southern Pacific in 1931, but as the "governor of the trial" responsible for assuring the proper conduct of all participants. The performance of U.S. District Court Judge T.S. Ellis III in the trial of Paul Manafort on bank fraud and tax evasion charges has been decidedly unusual. During the trial, Ellis intervened regularly, and mainly against one side: the prosecution. The judge's interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He disparaged the prosecution's evidence, misstated its legal theories, even implied that prosecutors had disobeyed his orders when they had not.

Elizabeth Warren has a big idea that challenges how the Democratic Party thinks about solving the problem of inequality. Instead of advocating for expensive new social programs like free college or health care, she’s introducing a bill Wednesday, the Accountable Capitalism Act, that would redistribute trillions of dollars from rich executives and shareholders to the middle class — without costing a dime...This is, of course, not an uncontested view. Jesse Fried and Charles Wang argued earlier this year that the real amount of buybacks is overstated by politicians who focus on gross share repurchases that are partially offset by new share issuances.

...To this day, Ginsburg's opinion in EPA v. EME Homer City Generation LP remains the only time the Supreme Court has reversed one of Kavanaugh's environmental rulings on the U.S. Court of Appeals for the District of Columbia Circuit. A George W. Bush appointee, Kavanaugh has been on the D.C. Circuit for a dozen years. The case provides a glimpse into the nominee's broader approach to environmental law and how that may translate on the Supreme Court bench. "It's a very significant case. It's a huge environmental regulation at stake," said Richard Lazarus, a professor at Harvard Law School who has argued in front of the Supreme Court more than a dozen times. "It shows you exactly the potential divide between Kennedy and Kavanaugh, and also between Roberts and Kavanaugh. "That's why it's the most significant data point for environmental law in thinking about Kavanaugh's nomination," he said.

...Two new papers look at the effects of the programme in its earlier incarnation. They find that it succeeded in its stated goal of removing undocumented workers—but it also reduced access to jobs, health care and nutrition for migrants and citizens alike...Marcella Alsan of Stanford University and Crystal Yang of Harvard University looked at access to welfare and health-care enrollment...Ms Alsan and Ms Yang found that the rollout of Secure Communities was associated with a 10% decline in food-stamp use among eligible Hispanic households. They also estimate that health-care coverage under the Affordable Care Act would have been 22% higher among eligible Hispanic households had Secure Communities not been in place, because of fears that any interaction with officials might lead to friends or family being deported.