Media Mentions

...“He will be a disaster for the country if confirmed,” said Elizabeth Bartholet, the Morris Wasserstein Public Interest Professor of Law at Harvard, in an e-mail Wednesday morning. Bartholet, a former lawyer for the NAACP Legal Defense Fund and founder of the Legal Action Center in New York, stressed that she was basing her comments on Kavanaugh’s judicial record — not his time at Harvard.

...Kavanaugh has insisted on upholding the expansion of regulatory authority only when there is clear evidence Congress intended to do so. "It is a perfectly legitimate neutral principle for interpreting federal statutory authority," said Richard Lazarus, a professor of environmental law at Harvard. "But as applied to EPA, it had led Kavanaugh repeatedly and consistently to rule against EPA."

Business lobbyists are urging the White House not to give former National Labor Relations Board Chairman Mark Gaston Pearce (D) another stint on the board when his term expires next month, sources tell Bloomberg Law...“This is an incredibly important issue,” former NLRB member Sharon Block (D) told Bloomberg Law of the joint employer decision. “It’s at the heart of having the law continue to be meaningful and to fit the realities of the workplace.”

...“This last term was horrendous for workers. If you are to have imagined a nightmare scenario for workers and workers rights, this would be it,” said Benjamin Sachs, a labor law expert at Harvard University. “But in those cases, the ruling justices also planted seeds that could lead to further damage against workers.”

...ITT’s chief executive, Kevin Modany, agreed to pay $200,000 to settle a suit with the Securities and Exchange Commission over claims the school misled investors about the impact of two failing student loan programs to the company’s bottom line. The company’s chief financial officer, Daniel Fitzpatrick, will pay $100,000...The contrast in fates between former ITT students like Schettler and the company’s top executives is “incredibly grotesque,” said Toby Merrill, the director of Harvard Law School’s Project on Predatory Lending. At the same time that the students are coping with debt that’s not dischargeable in bankruptcy that they can’t get rid of by filing for bankruptcy and being told to take their degrees off their résumés when job-hunting, “the shell of the company is dischargeable in bankruptcy and the debt is gone,” she said. And the executives are “being told that they can just walk away,” added Merrill, who is representing former ITT students as part of the bankruptcy process.

..."I think for all of these rulemakings his judicial philosophy and his temperament is to be skeptical of important, big, far-reaching agency rules, especially if they are interpreting or adapting older stuff in novel ways," said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. "It's all approached with this general skepticism toward overreach and ... He has no problem deciding not to defer [to federal agencies]. He has no difficulty."

Brett M. Kavanaugh’s nomination to the Supreme Court has stirred plenty of debate about the fate of Roe v. Wade . But there is another landmark case that is apt to trouble the court in coming years: Regents of the University of California v. Bakke...But it’s left us with what Harvard Law professor Jeannie Suk Gersen calls an “analytic confusion.” Affirmative action, she says, “has to do with groups that have been wronged and held back, and that we’re going to try to fight against it by doing affirmative action. You can have that conversation without any recourse to diversity.”

...Kennedy famously determined the direction of the nine-member court—joining its four liberals on some cases, its four conservatives on others—but he shaped few parts of American law as completely as he shaped the environment. Since joining the court in 1988, Kennedy voted in the majority in every environmental case in front of the court except one, according to Richard Lazarus, a Harvard Law professor who has argued more than a dozen cases in front of the justices...“We probably have more of a record for Kavanaugh for environmental law than we do for anyone else in recent memory,” Lazarus told me. “Roberts came from the D.C. Circuit, Scalia came from the D.C. Circuit, Ginsburg did, Thomas did—but none of them had the same number of EPA cases that Kavanaugh’s had.”

An op-ed by Terri Gerstein and Sharon Block. It’s the American dream: We’re supposed to improve ourselves, get a better job, move on and up. But in too many instances, secret agreements between employers are stifling workers’ ability to parlay their hard work and experience into better-paying jobs and a chance to climb the career ladder. On Thursday, the attorney general of Washington State, Bob Ferguson, announced that he had obtained agreements from seven fast-food chains, including Arby’s, Carl’s Jr. and McDonald’s, not to use or enforce “no poach” or “no hire” agreements. Under these arrangements, franchisees pledge not to hire job applicants who are current or recent employees of the company or any of its franchisees, without the approval of the applicants’ employers. This crackdown on a widespread practice is a welcome development. But as Mr. Ferguson made clear in his announcement, he is still “investigating other corporate chains that utilize no-poach agreements.”

...That may be why Harvard Law School professor Richard Lazarus, an environmental law specialist, said he has yet to see students recoil from law firms that do energy work the way many rejected firms handling tobacco clients several decades ago. “Energy work broadly defined, including representation of utilities and even major oil and natural gas companies, has not yet seemed to trigger that same reaction in students looking for private sector employment in the Big Law firms, which frequently have a very wide client base that include that industry among many others,” he said in an email.

With immigrant family reunifications underway across the country, advocates and pro-bono attorneys are working around the clock scrambling to help hundreds of detained parents with their court cases...“I think my long-term goal is to work on migration policy,” said Florida native Elizabeth Coffin-Karlin, a Harvard law and public policy student. The 29-year-old is spending her summer at the southern border helping asylum seekers. “I’ve been to the detention center a few dozen times at this point,” she said. The KENS 5 Border Team met Coffin-Karlin at the Port Isabel Detention Center, Immigration and Customs Enforcement’s largest facility. It’s located in Los Fresnos, Texas, where hundreds of immigrant adults are detained without their children while they fight for their asylum case.

...Laurence H. Tribe, Carl M. Loeb University Professor and a professor of constitutional law at Harvard Law School, told Newsweek: "If one defines 'war' to include cyberwar—e.g. by deliberately hacking into a nation’s computer-based election infrastructure—then what we witnessed in Helsinki was President Trump openly aiding and abetting the Russian military’s ongoing war against America rather than protecting against that Putin-led cyber-invasion. "That in turn could reasonably be defined as 'treason' within the meaning of 18 USC 2381 and Art. III of the US Constitution.

An op-ed by Carmel Shachar, executive director of The Petrie-Flom Center. Thanks to Brett Kavanaugh’s 12 years as a judge on the D.C. Court of Appeals, we have a well-developed record of the Supreme Court nominee’s positions on key issues, including his views on American health care policy. In two high profile cases in 2011 and 2015, Kavanaugh upheld key parts of the Affordable Care Act (ACA). But these cases, taken out of context, are misleading. They should not distract anyone evaluating his long record, nor overly inform how he might decide in future cases when it comes to health care.

An op-ed by Jack Goldsmith. “A judge must be independent and must interpret the law, not make the law,” said Judge Brett Kavanaugh during his speech accepting the nomination to replace his former boss Anthony Kennedy as an Associate Justice on the Supreme Court. This may sound like a rhetorical pose, but you should take it literally, not just seriously: Kavanaugh, whom I know primarily through his teaching at Harvard, is one of the most principled jurists I have ever studied.

...Rhode Island has taken an important step here,” said Kevin Costello, head of litigation at the Center for Health Law and Policy Innovation of Harvard Law School. “This change is not only the right thing to do from a public health and legal point of view, but it also been proven that this policy will be cost-effective for the state in the long run.”

An op-ed by Noah Feldman. Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted.

An op-ed by Noah Feldman.I don’t claim to know who President Donald Trump will pick Monday night to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. But I do claim to know what we’ll be saying about it. Here, in alphabetical order, is what will soon be the conventional wisdom. Plus, what you should really think, where it differs.

...American legal scholar Catharine MacKinnon argues that the difference “between prostituted people and those who buy and sell them are that one is served, the other serves; one is bought, the other buys and sells them; one is stigmatised, the other retains respectability; one is a criminal, the others either are not, or the law against them is virtually never enforced. And the one is mostly women, the others overwhelmingly men.”

An op-ed by Cass Sunstein. So it’s Judge Brett Kavanaugh. There will be time enough to explore the nominee’s views and record. Let’s step back a bit and get some perspective on the national debate that we are about to have.

...Richard Fallon Jr., a constitutional law professor at Harvard Law School and former staffer to Collins’ first boss, then-U.S. Rep. William Cohen, says justices must balance two competing legal principles in considering a case: respect for precedent and fidelity to the Constitution. Sometimes these can be in tension, as in a case such as Brown v. Board of Education, where justices overturned a century of cases defending racial segregation in public schools because they violated the Constitution.

...Ahead of the summit, Harvard Law School’s International Human Rights Clinic has prepared new publications showing that existing security agreements for NATO and other US allies do not prevent these states from joining the nuclear ban. The obstacles are not legal, they are only political—and as European populations are once again raising their voices to demand disarmament, it’s in NATO states’ best interest to join the treaty as soon as possible.