Media Mentions

If Blum’s suit is successful, the effect will be felt far beyond Harvard. It will limit the freedom that academic institutions have often had in pursuing their unique educational missions. The lawsuit, and Blum’s efforts to change the cultural conversation surrounding diversity and discrimination, could end affirmative action in higher education as we know it....Suspicions about the fitness and the qualifications of nonwhites didn’t begin with affirmative action. But it has become the most prominent way that these suspicions are aired, since the stakes are so clear. Life rarely seems so zero-sum as it does when we imagine that we are vying for the lone seat in the classroom. “Affirmative action is part of a larger struggle,” Randall Kennedy, a professor at Harvard Law School, told me. “The much larger struggle is the struggle against the idea that the United States is a white man’s country. Do people of Asian ancestry benefit from that larger struggle against the notion that America is a white man’s country? Yes, absolutely.”

...Though more eyes may be on Kavanaugh, Roberts may be the most important justice after the retirement of Kennedy, the court's swing vote. Kavanaugh is likely to align with the court's more conservative justices, making Roberts the most likely to join the court's four liberals on occasion. “He won’t be as liberal in some dimension as Kennedy, but he’ll be more of an incrementalist,” said Harvard Law School professor Richard Lazarus, a Roberts classmate there in the 1970s.

As Harvard prepares to face a high-stakes trial in a lawsuit alleging its undergraduate admissions process is discriminatory, a Texas-based group has filed a similar suit against the Harvard Law Review charging the publication illegally uses “race and sex preferences” to select its members. The lawsuit —filed Saturday in the U.S. District Court in Boston by an organization called Faculty, Alumni, and Students Opposed to Racial Preferences —also claims that the Law Review illicitly relies on race and sex preference when choosing articles. If true, these allegations would mean that the Law Review falls in violation of federal statutes Title VI and Title IX.

Breaking weeks of near-silence on newly confirmed Supreme Court Justice Brett M. Kavanaugh, Harvard Law School Dean John F. Manning ’82 sent a five-paragraph email to school affiliates Monday calling the past few weeks an “extraordinarily painful and divisive chapter” of American history.

“When you think about the legal profession, what is remarkable is how little it has fundamentally changed over such a long period of time,” says David Wilkins, faculty director of the Center on the Legal Profession at Harvard Law School. Law has been resistant to some of the bigger changes sweeping the world economy. Globalisation, the rise and speed of new technology, including mobile technology — “all these things are transforming the economy, but they aren’t transforming us”, says Prof Wilkins. “Law is a lagging indicator.”

Lofting signs and bellowing chants, members of the Harvard International Socialists rallied in Harvard Yard Thursday afternoon to protest the nomination of Brett M. Kavanaugh to the Supreme Court — continuing a string of demonstrations against the judge at Harvard over the past week...Law School student Samantha E. Rodriguez [`20] said she believes the pressure that students have been placing on Kavanaugh contributed to his decision to depart HLS. “It was the vast number of emails that he was getting, the calls he was getting — from not only folks that go to the school, from people all over the country,” Rodriguez said. “They’re outraged.”“I think it exactly, for me, really shows the importance of really organizing and making our voices heard,” she added.

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.”