Media Mentions

Companies that keep control by giving public investors little to no say in board elections and other matters shouldn’t be allowed to call the shares they sell common stock, according to a panel advising the Securities and Exchange Commission...“If you take a security public and it has zero voting rights, I don’t think that’s common stock anymore,” Harvard Law School professor John Coates said at a committee meeting Dec. 7. Coates, a member of the committee, said the SEC’s staff “ought to think carefully” about when the label applies.

An op-ed by Carmel Shachar and Glenn Cohen. 2017 was a year of tremendous uncertainty for many areas of public policy. Health care policy was no exception, most prominently with an almost successful push by Congressional Republicans to radically revise the Affordable Care Act (ACA). Medical research and bioethics also faced uncertainty, with the struggle to ethically engage with new technologies and to better understand the boundaries around self-determination. As we look over the past year and anticipate the coming one, the overarching question remains: Is it possible to run a health law and health care system given this level of flux?

An op-ed by Robert Greenwald and Ryan Clary. The American epidemic of opioid abuse is finally getting the attention it warrants. While policy solutions continue to be inadequate, the decision by President Trump to declare a national opioid emergency has helped to increase discussion about the problem and how the country can solve it. But the conversation also needs to address a dangerous – and largely ignored – interconnected public health crisis wreaking havoc among young Americans.

By reversing the federal government’s long-held position that “fair share” fees paid to public employee unions by nonmembers are lawful, the U.S. Justice Department sent an early holiday present to Justice Samuel Alito Jr., who has led recent attacks on the constitutionality of the fees. But maybe, in a long shot for unions, the late Justice Antonin Scalia will have the final word. Noel Francisco, the U.S. solicitor general, on Wednesday filed a friend-of-the-court brief that urged the justices to overrule a 40-year-old decision, Abood v. Detroit Board of Education. That decision rejected claims that the fees, paid to cover nonunion members’ share of the costs of collective bargaining, violated the First Amendment...That opinion now is at the center of an amicus brief in the Janus case. The amicus parties, Reagan administration Solicitor General Charles Fried of Harvard Law School and Yale Law’s Robert Post, submitted their brief in support of neither side.

Republicans on the House Judiciary Committee hammered FBI Director Christopher Wray on Thursday over allegations that the probe of Russian interference in the 2016 election brims with bias against the president...Alex Whiting, a former prosecutor and law professor at Harvard University, called Strzok’s text messages a “non-story,” and said those seizing on the story are desperate and attempting to discredit the investigation. “With respect to the broader investigation, there is no evidence that the agent had any opportunity to shape any of the evidence in the case,” he said in an email.

Debra Katz, founding partner of Katz, Marshall & Banks, and Nancy Gertner, a professor at Harvard University Law School, discuss the legal fallout from the recent wave of sexual harassment accusations against powerful men in politics, media and entertainment. They speak with Bloomberg’s Greg Stohr on Bloomberg Radio’s "Bloomberg Law."

An op-ed by Lawrence Lessig. As I write these words, the FCC has just issued draft regulations abolishing the rules meant to secure “network neutrality” on the internet. Those regulations themselves were a surprising victory in the second term of the Obama administration. Obama had made neutrality a critical part of his first campaign. But it was a former industry lobbyist turned FCC chairman, Tom Wheeler, along with an extraordinary deputy, Gigi Sohn, who finally pressed a constitutionally resistant FCC to adopt a substantial body of federal regulations that would go a long way toward securing for the future of the internet the kind of competitive platform that defined the very best of its past.

An interview with David Wilkins. ...Most recently, Professor Wilkins and his team have been working on studying the development of legal profession following the liberalisation of various economies, and will be visiting India this month. In this interview with Bar & Bench’s Varun Marwah, Professor Wilkins talks about how India’s legal profession, in its post-liberalisation development phase, while borrowing several practices from the West, has also retained several characteristics that are uniquely Indian.

An op-ed by Cass Sunstein. From the very start of his presidency, Donald Trump has made it a high priority to reduce the level of federal regulation. And in 2017, the stock market has boomed. Many business leaders believe that this is hardly a coincidence, and that Trump’s deregulatory efforts have fueled the boom. Are they right? Probably not -- but it’s complicated.

An op-ed by Noah Feldman. From the standpoint of producing Middle East peace, President Donald Trump’s decision to recognize Jerusalem as the capital of Israel in a speech Wednesday can only be called irrational. It raises the risk of Palestinian violence that could derail peace efforts by his son-in-law Jared Kushner. It makes it harder for crucial U.S. allies like the Saudis to side with Trump and push the Palestinians to a deal. It won’t make Israel feel more secure. And it will hearten right-wingers in the U.S. and Israel whose endgame is actually to avoid a two-state solution.

An op-ed by Sharon Block and Christine Owens. If the Trump administration has its way, the tip you leave your waiter or waitress could end up in the pocket of the restaurant owner instead of the person who served you. This week, Trump’s Labor Department proposed rescinding an Obama-era rule that made the logical point that tips are the property of the servers and cannot be taken by the restaurant owner.

An op-ed by Vail Kohnert-Yount `20 and Jared Odessky `20. To keep its graduate students from unionizing, Harvard is pushing the government to weaken important protections for workers across the United States. That’s not how the university puts it, of course. But as law students who came to Harvard to study labor, we are alarmed by the implications of the anti-organizing tactics the school is using against its students. The institution is poised to hobble unions far beyond our Cambridge campus.

An article by Jack Goldsmith. I wrote Monday morning about costs within the Justice Department when its leaders stay silent in the face of the President’s caustic attacks on the department’s independence and integrity. I mentioned in particular the silence of Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, and FBI Director Christopher Wray...Since I wrote these words, Wray and Rosenstein spoke in ways that are widely seen as a response to the President and a defense of the Justice Department and FBI workforces.

An op-ed by Noah Feldman. It’s happening: President Donald Trump’s lawyer John Dowd asserted Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under” Article II of the Constitution and “has every right to express his view of any case.” This radical view of what lawyers call the “unitary executive” isn’t completely crazy, especially if you take Dowd’s words charitably. But it is wrong. The president can indeed express opinions about legal cases.

President Trump is a compulsive liar who scorns the rule of law...What even some smart people don’t know is that the statement’s truth is, arguably, grounds to impeach Trump, even without his having committed a crime...For non-lawyers, that’s the big takeaway from “Impeachment: A Citizen’s Guide,” a new book by Harvard Law professor Cass Sunstein. The slim manual is a tour of the history behind the spare words the Constitution offers for when to remove high officials: ”treason, bribery, or other high crimes and misdemeanors.” Sunstein disavows what he calls the “fundamentally wrong” belief, uttered by many liberals (even House Democratic Leader Nancy Pelosi), that a president must break a law to be impeached.

Speculation has been simmering for months that the Trump administration might ask the Supreme Court to ban public sector unions from collecting mandatory fees. Calling for a decision that could significantly reduce labor movement finances and political influence would be a major shift in approach for the federal government. The question will be answered by midnight Dec. 6. That’s the deadline facing the Justice Department if the solicitor general wants to file a friend-of-the-court brief supporting the National Right to Work Legal Defense Foundation in its decades-long crusade against government unions...“If they were to take such a radical step to undermine workers’ rights, I have no doubt that it would be motivated not by a genuine concern about constitutional rights but by a desire to destroy the labor movement,” Sharon Block, who was both a National Labor Relations Board member and DOL policy official in the Obama administration, told Bloomberg Law.

Corporations are the cornerstone of both the House and Senate versions of the tax overhaul. Both bills propose deep cuts in the corporate tax rate — from 35 percent to 20 percent. The bills also call for a territorial tax system to replace the current worldwide tax system, in which multinational corporations with headquarters in the United States are required to pay the U.S. tax rate if they want to bring profits back into the country..."The corporate tax currently is broken," said Mihir Desai, a professor at Harvard Business School and Harvard Law School, whose work was cited (albeit somewhat misinterpreted) by the White House Council of Economic Advisers. "Bringing down the rate and switching the territorial regime so we don't tax corporations on their worldwide income -- both of those are really smart moves."

...In 2011, following an investigation by NPR and the Center for Public Integrity on campus assault, the Obama administration decided to act. The Office for Civil Rights sent a “dear colleague letter” reminding colleges that sexual harassment and assault create an environment so hostile that women’s access to education is jeopardized, violating their civil rights...“O.C.R.’s rationale” was that preponderance of evidence “was the standard for suits alleging civil rights violations like sexual harassment,” wrote Nancy Gertner, a retired federal judge and current Harvard law professor, in The American Prospect in 2015. “True enough, except for the fact that civil trials at which this standard is implemented follow months if not years of discovery.” She continued: “It is the worst of both worlds, the lowest standard of proof coupled with the least protective procedures.”

The Labor Department wants to remove an Obama-era regulation that restricted the circumstances in which employers could force workers to share tips. The DOL’s Wage and Hour Division, in a proposed rule released Dec. 4, calls for rescinding the 2011 regulation that prohibited restaurants, bars, and other service industry employers from requiring front-of-house employees, such as servers, to share tips with back-of-house workers, such as cooks and dishwashers...The proposal would eliminate from the Fair Labor Standards Act language under the 2011 rule that said tips are the property of the employee regardless of whether the employer has applied a tip credit. The department’s analysis that unwinding this rule will improve workplace conditions for restaurant employees was immediately opposed by worker advocates and former DOL officials in the Obama administration. “There is nothing” in the proposed rule “that would preclude an employer from keeping the tips of workers as long as he’s paid them $7.25 an hour,” Sharon Block, who ran the DOL’s policy shop in the Obama White House, told Bloomberg Law.

...On Friday, Trump's former national security adviser pled guilty to lying to the FBI. That alone is a big deal, but the real bombshell was that Michael Flynn had agreed as part of a plea deal to work with the FBI in its investigation into Russia's attempts to swing the 2016 U.S. election. The next day, a tweet appeared about the news...Tweets have already been used in plenty of cases, including against Trump — particularly in relation to his attempts at issuing travel bans on certain Muslim-majority countries. Even deleted tweets have been used in court cases. With Twitter, the main challenge is to show that the account belongs to a particular person, according to Alex Whiting, a law professor at Harvard University and a former prosecutor at the International Criminal Court. That's not an issue when it comes to Trump.

President Donald Trump’s personal lawyer’s legal arguments in defence of the president’s tweets about former U.S. national security advisor Michael Flynn have been greeted with some scepticism by legal experts. In seeking to explain a Trump tweet on Saturday lawyer John Dowd told Reuters on Sunday that he wrote and “bollixed up” the president’s tweet in which Trump said he fired Michael Flynn for lying to the FBI and not just misleading U.S. Vice President Mike Pence...But several lawyers said, regardless of whether Yates explicitly said Flynn lied to the FBI, the White House counsel should have seen that possibility and communicated it to the president. “It’s not every day that the acting attorney general comes over to the White House with that sort of message,” said Alex Whiting, a former federal prosecutor now teaching at Harvard Law School. “It had to have been obvious to McGahn that Flynn probably lied to the FBI whether Yates said it or not.”