Media Mentions

No one believes Ketanji Brown Jackson, now confirmed to the Supreme Court, would ever vote the same way on an abortion case as her new colleague, Justice Amy Coney Barrett. Their ideologies are too different. As Judge Richard Posner points out, regardless of what they say about their adherence to precedent and the like, judges are fundamentally ideological. They cannot be anything else without a methodological approach to decision-making, such as cost-benefit analysis, that could lead to alternative outcomes. ... Evidence exists that judges’ decisions are not sensible resolutions but are influenced by their ideologies. For example, the legal scholars Alma Cohen and Crystal Yang found that Republican-appointed judges in federal district courts gave longer prison sentences to Black defendants than did Democratic-appointed judges.

Meta Platforms (FB), formerly known as Facebook, lost an attempt last week to quash a proposal from shareholders who want to know whether its planned virtual world will cause real-world harm. The question comes as critics of the metaverse voice concerns that the burgeoning virtual world sorely needs regulation to protect its users. The absence of rules to police the metaverse could hurt consumers in the same ways they've been hurt in other online platforms, critics warn. The metaverse could also create brand-new injuries without proper oversight, according to critics. If the metaverse becomes ubiquitous, regulation could become even more crucial. “The first question we need to be asking of people, like representatives from the place called Meta, is: What is the business model?” Harvard Law School professor Lawrence Lessig said during a panel discussion last week. “The thing to fear is if [Meta] becomes the dominant default platform that you must participate in to do everything...If it becomes Facebook 2.0, and that is the defining existence, then the fact that there is no law I think means it's a very scary prospect.”

An op-ed by Noah Feldman: We live in a world where the Supreme Court is poised to give conservatives huge wins on abortion, guns and affirmative action. The popular passions over those issues make it hard to interest the general public in the conservative majority’s far more subtle and gradual efforts to change the way the court does its business by essentially deciding cases that are still before the lower courts. Yet that change matters. It tells you a lot about how the conservative majority is thinking about the next few years and its strategy to change the direction of the law beyond the big-ticket cases that make headlines.

Fresh off their historic win against online retailer Amazon, Staten Island warehouse workers who voted to form a union earlier this month are loading up their arsenal as the internet behemoth ratchets up its defenses against the upstart group. Amazon has filed more than two dozen objections with the National Labor Relations Board and seeks to overturn the Amazon Labor Union victory at the Staten Island JFK8 warehouse. The company argues that the union intimidated workers into voting in favor of organizing and alleges that the federal agency gave the ALU preferential treatment by filing a lawsuit against the internet retailer ahead of the vote. ... “Amazon, I think, has demonstrated that they are willing to go to great lengths to prevent their workers from having a union,” [Sharon] Block said. “And because the incentives in the law are to play this out as long as possible, if you’re a company that mistakenly but nevertheless believes that you want to keep the union out of your workplace, the law provides a path for you that is essentially costless to push the date out as much as possible.”

Last week’s arrest of a woman in the Rio Grande Valley on a murder charge for a “self-induced abortion” created confusion over what’s covered by Texas’ new abortion laws. On Thursday, Lizelle Herrera was arrested by the Starr County Sheriff’s department on a murder charge for a self-induced abortion. But the county’s District Attorney Gocha Ramirez announced Sunday he was dropping the charge, saying “the only correct outcome to this matter is to immediately dismiss the indictment against Ms. Herrera.” The motion to dismiss the case was filed Monday. ... No. “Texas law has a provision that essentially says you can’t punish women for self induced abortion, period, across the board, and SB 8 also doesn’t allow on the civil side for lawsuits against women for having abortions. So not only is there no statute authorizing this, there’s an actual statute independently saying this isn’t allowed,” said Mary Ziegler, a law professor at Florida State University and a visiting professor at Harvard Law School.

An op-ed by Premal Dharia: Judge Ketanji Brown Jackson will officially take her place on the Supreme Court later this year, having publicly endured -- and defeated -- no small number of outlandish efforts to block her ascent. This is a historic moment for our country, and for so many people within it; indeed, much has been rightfully shared and celebrated now that a Black woman who is a former public defender has been confirmed to the high court.

Former President Donald Trump will arrive in North Carolina for a "Save America" rally on Saturday as he and his allies—including his son Donald Trump Jr.—face accusations of "treason" and planning a "coup." Supporters of the former president are converging on Selma to attend the right-wing event at The Farm at 95, which is about 30 miles southeast of Raleigh. While thousands of Trump supporters regularly attend his rallies, the venue for this event can only hold about 400 attendees. The rally, which is scheduled to start at 7 p.m., will be live-streamed on YouTube by Right Side Broadcasting Network as well as through the website Rumble. ... Laurence Tribe, a professor of Constitutional Law at Harvard, said he agreed with Rangappa's assessment. ".@AshaRangappa_ has this just right," the legal scholar tweeted, sharing her post. "Most others have missed this key point: Junior's revelations kill the 'innocent state of mind' defense, leaving compelling proof of corrupt intent for each of the several federal felonies the plotters close to the defeated president committed."

Ketanji Brown Jackson has been confirmed as the first black woman to sit on the US Supreme Court in its 233-year history. The judge secured the life-time role following a 53-47 vote in the US Senate, following fierce questioning from critics. Judge Jackson, 51, will also be the first former public defender to sit on the Supreme Court and the third black judge to sit. ... Guy-Uriel Charles, Harvard Law School professor and an expert in race and law, explained how Jackson may impact the court. He said: “I do think that as a black woman she will bring credibility on issues of race and issues of gender. On issues of race, she might serve as a counterweight to Justice Thomas. “In particular, I think young black girls will have an even stronger sense that all avenues, especially in law, are open to them.” ... Former US Solicitor General Charles Fried told Sky News he backed her because she was the “absolutely ideal nominee.” “She’s had life experience, where she’s had to fight her way up and succeeded at every stage,” he said. Mr Fried, who has taught at Harvard Law School since 1961, added that his experience as a public defender “lends a very important dimension of perspective to the court”.

Two days after the 2020 election, Donald Trump Jr texted the White House chief of staff, Mark Meadows, with strategies for overturning the result, CNN reported. “This is what we need to do please read it and please get it to everyone that needs to see it because I’m not sure we’re doing it,” Trump Jr reportedly wrote, adding: “It’s very simple … We have multiple paths[.] We control them all.” One leading legal authority called the text “a smoking rifle”. CNN said the text was sent on 5 November 2020, two days before Joe Biden was declared the winner of the election and the next president. ... Responding to news of Donald Trump Jr’s communication with Meadows, Laurence Tribe, a Harvard law professor, said on Twitter: “This text is a smoking rifle.”

As Kamala Harris made history in her speech accepting the vice presidential nomination in 2020, she broke into a broad grin as she invoked the name of her hero: Constance Baker Motley, the first Black woman to serve as a federal judge. Eighteen months later, Motley’s memory was summoned again, this time by Judge Ketanji Brown Jackson upon her nomination to the Supreme Court. ... “It tells me she knows her history — the history of the civil rights movement,” said Tomiko Brown-Nagin, a Harvard Law professor and author of “Civil Rights Queen,” a newly released biography of Motley.

During periods of autocratic, populist upheaval, judges tend to find themselves in the political crosshairs. Faced with leaders who are bent on hollowing out the rule of law, the judiciary often must choose between bending the knee and defiantly asserting the supremacy of fundamental legal norms, come what may. ... Still, not everyone is quite so worried about the political nature of America’s judiciary, nor with the populist direction that many democracies are taking (or have taken). As Harvard Law’s Mark Tushnet and Bojan Bugarič of the University of Sheffield write in their new book, Power to the People, populism in and of itself is not the threat that many commentators and politicians have painted it to be. They prefer to view populism as a means of governing, which “must be considered together with its host ideology.”

Aljanal Carroll never doubted her ability to beat the odds — not when a doctor told her she would never attend school after battling spinal meningitis as a child, or when she set her sights on a 4.0 G.P.A. in her master’s program, or when she heard it was rare for Black women to earn a doctorate in business administration. Then she enrolled at Walden University. ... Eileen Connor, the director of Harvard’s Project on Predatory Student Lending, which has pursued one of the only other lawsuits to make Title VI claims on behalf of students at for-profit colleges and universities, said courts were “suspicious of, if not hostile to, these reverse-redlining claims.” “It’s not that the claims don’t have merit or are not worth bringing,” she said. “But to stop relentless targeting of people of color by predatory schools, it’s going to require greater involvement from regulators like the Department of Education and the Federal Trade Commission.”

Global law firms that announced plans to close Russia offices after the Ukraine invasion now face the challenge of carrying out their goal while complying with labor, immigration and sanctions laws. Employers that want to fire employees in a closure must navigate a Russia law that generally bars dismissing certain worker classes, such as single mothers, according to labor and employment law firm Littler Mendelson. ... Firms leaving Russia are likely calculating whether they can return there someday, said David Wilkins, director of Harvard Law School’s Center on the Legal Profession, in a written statement. Those decisions “will probably depend upon what—if any—peace deal is struck and whether the firms either can or want to go back to doing Russian work,” Wilkins said.

This year’s Skadden Fellows, Ava Cilia ’22 and Kaitlynn Milvert ’22, discuss their fellowships and how their clinical experiences paved the way for their careers in public interest law.

In a historic vote today, the U.S. Senate confirmed Judge Ketanji Brown Jackson as the first Black woman to join the U.S. Supreme Court. “What a great day it is for the United States of America, for our system of government, and the grand march of the fulfillment of the sacred covenant we have as an American people: e pluribus unum – out of many, one,” said Sen. Raphael Warnock, a pastor of Martin Luther King’s church in Georgia, on the Senate floor. “Ketanji Brown Jackson’s improbable journey to the nation’s highest court is a reflection of our own journey, through fits and starts, toward the nation’s ideals.” ... In 1987, then-Sen. Joe Biden invited constitutional law scholar Laurence Tribe to help him prepare for the confirmation hearings of President Ronald Reagan’s controversial Supreme Court nominee Robert Bork. They spent hours together, with the liberal Harvard professor playing the role of Judge Bork in mock murder boards. “It was kind of an awkward fit,” admits Professor Tribe, now a professor emeritus at Harvard.

An op-ed by Noah Feldman: If colleges still thought there was little risk in taking up their students’ causes, they should reconsider in light of what has happened to Oberlin College. An Ohio appeals court has upheld $30 million-plus in damages in a lawsuit against the school brought by a local bakery that was accused of a history of racial profiling. The case has gotten lots of attention as a touchstone in the culture wars and because of the free expression issues surrounding it. Although the case could still be appealed to the Ohio Supreme Court — and even conceivably to the U.S. Supreme Court — it is now possible to derive some hardheaded lessons from the process thus far. For one thing, universities need to be extremely careful about how they interact with student protests if they want to avoid being held liable for their students’ words and actions.

In a new survey, the majority of corporate legal departments say they are facing rising challenges over environmental, social and governance, or ESG, issues, but they are without clear guidance from regulators and lack the expertise, resources and support from the C-suite to handle the risks. As the range of ESG risks expands, a whopping 99% of general counsel respondents said they expect a sharp increase in volumes of work, according to a study released today by EY Law and the Harvard Law School Center on the Legal Profession. ... Professor David Wilkins, vice dean for global initiatives on the legal profession and faculty director of the Harvard Center, said in a Law360 interview that he shares Grossman's view of the general counsel's predicament. "A lot of these issues are ending up on the general counsel's desk in the form of a crisis," Wilkins explained, such as an employee walkout at Disney World last month, or investor demands for leadership change, as happened at ExxonMobil last year when several directors were ousted.

Germany’s foreign intelligence service claims to have intercepted radio communications in which Russian soldiers discuss carrying out indiscriminate killings in Ukraine. In two separate communications, Russian soldiers described questioning Ukrainian soldiers as well as civilians and then shooting them, according to an intelligence official familiar with the findings who, like others, spoke on the condition of anonymity because of the matter’s sensitivity. ... Alex Whiting, a visiting professor at Harvard Law School who previously coordinated investigations at the International Criminal Court in The Hague, said the key question to discern from intercepted communications is whether soldiers were “acting pursuant to some plan or some general direction.” “Just the fact that they would be talking to each other about these killings would indicate that and would disprove any suggestion that these were kind of spontaneous, random events,” he added.

On Tuesday (April 5), the Harvard Law School Animal Law & Policy Clinic filed a suit against the United States Department of Agriculture for, it says, evading “its statutory obligation to conduct full annual inspections of research facilities as required under the Animal Welfare Act.” ... “There are a lot of facilities that maintain AAALAC accreditation, even where the USDA has found severe AWA violations,” Max Hantel (JD '23), a law student at the Harvard Clinic who’s working on the lawsuit, tells The Scientist. And while AAALAC International can put research sites on probation, he says, those institutions’ statuses aren’t disclosed. “It’s all secret. We don’t know who’s on probation, and the USDA treats it all as accredited.”

Four of Justice Stephen Breyer's former clerks examine his impact on the Supreme Court — and on them.

Just as the Supreme Court is poised to achieve many of the stated aims of the conservative legal movement, including overturning Roe v. Wade and striking down affirmative action, leading conservative thinkers are hotly debating alternative approaches to interpreting the Constitution. Originalism—the notion that the words of the Constitution should be read according to some version of their original historical meaning—has been the standard-bearer for decades, promoted initially as a strategy to undermine national economic regulation and limit the protection of civil rights. But a conservative competitor to originalism has recently emerged in “common good constitutionalism.” For its leading proponent, Adrian Vermeule, a Harvard law professor, the point of constitutional interpretation isn’t to discern what the Founders thought or what some legal text meant to ordinary readers when it was enacted. Instead, the aim is to promote the “common good.” Vermeule claims that within the “classical legal tradition”—which extended from the Roman Empire through early modern Europe—political officials, including judges, understood that the purpose of the state is to secure the goods of “peace, justice, and abundance,” which he translates now into “health, safety, and economic security.” But in Vermeule’s telling, American conservatives have lost sight of that tradition and its influence on our own legal system. They have been blinded by originalism, which has become a stultifying obstacle to promoting a “robust, substantively conservative approach.