President Trump may not be able to postpone the U.S. election, but Bolivia’s unelected interim government has done it twice, sending supporters of ousted President Evo Morales into the streets. NPR’s Philip Reeves speaks with Thomas Becker of Harvard Law School’s International Human Rights Clinic.
A court-ordered environmental analysis of the Dakota Access pipeline may suffer from fatal flaws if it is conducted under the Trump administration’s new National Environmental Policy Act regulations, some legal experts say. The U.S. Court of Appeals for the District of Columbia Circuit last week upheld a lower bench’s requirement for the Army Corps of Engineers to conduct an environmental impact statement (EIS) to support the agency’s permit for the 1,172-mile crude oil pipeline to cross beneath Lake Oahe, which straddles the Dakotas. President Trump’s NEPA overhaul is directly at odds with a July 6 ruling by U.S. District Court for the District of Columbia Judge James Boasberg, who cited D.C. Circuit precedent discussing federal agencies’ duty to consider indirect environmental effects of pipeline operations when preparing an EIS, said Caitlin McCoy, a staff attorney at the Environmental & Energy Law Program at Harvard Law School. “That’s kind of interesting because we have the new regulations, where they don’t bar consideration of indirect effects, but they discourage consideration of indirect effects,” McCoy said. “But you have the judge basically saying to the agency, ‘I want to see consideration of indirect effects.'” She said she will be watching to see whether the D.C. Circuit reaches a similar conclusion as it weighs whether Boasberg, an Obama appointee, correctly required an EIS…An additional change to watch will be how the Army Corps treats “reasonable alternatives” in its analysis of the Dakota Access pipeline. The new NEPA regulations set parameters for considering alternatives that are “technically and economically feasible” and “meet the purpose and need of the proposed action.” Alternatives must also “meet the goals of the applicant” — in this case, Dakota Access developer Energy Transfer Partners LP. “I can just see a million ways to shoot down any possible alternative you come up with using these three new criteria,” said McCoy. “Especially because it’s such an odd situation where the pipeline is already built and in operation.”
Though it ticks off detailed examples of wrongdoing, the New York lawsuit claiming donors to the National Rifle Association have been ripped off for years is likely to be settled without the gun-rights group being forced to dissolve, legal experts said. In a sweeping 164-page complaint on Thursday, New York Attorney General Letitia James said the NRA must be disbanded because of the “breadth and depth” of the frauds carried out by four current and former officials accused of squandering the non-profit’s cash on corrupt personal expenses. But that drastic measure is just a starting point that could serve to push the NRA to make major personnel concessions and pay steep fines to avoid the risk of going to trial or being forced to shutter the organization…The suit filed against the NRA in Manhattan alleges the New York-chartered group was duped out of more than $60 million in the last three years alone as a result of financial sleights of hand by four current and former officials, including the NRA’s embattled longtime leader and public face Wayne LaPierre. James is seeking an injunction that would bar the four men from ever serving as fiduciaries of nonprofits. She said they got inflated salaries, used NRA assets for extravagant spending and arranged no-show contracts for insiders — claims the NRA vehemently denies…James Tierney, a lecturer at Harvard Law School who has taught courses on the role of state attorneys general, said the NRA’s suit is “foolish” and that the New York case is an “appropriate” response to the NRA’s refusal to cooperate. “This case has been developed by highly sophisticated people who’ve been in the business of charities regulation since long before Tish James,” said Tierney, who served as attorney general of Maine for a decade until 1990. “These people have gone through thousands of pages of documents and they’re accountants — they’ve tracked all the numbers over the years.”
An article by Lucian Bebchuk and Roberto Tallarita: By putting American workers through months of turmoil, the Covid-19 crisis has heightened expectations that large companies will serve the interests of all “stakeholders,” not only shareholders. The Business Roundtable raised such expectations last summer by issuing a statement on corporate purpose, in which the CEOs of more than 180 major companies committed to “deliver value to all stakeholders.” Although the Roundtable described the statement as a radical departure from shareholder primacy, observers have been debating whether it signaled a significant shift in how business operates or was a mere public-relations move. We have set out to obtain evidence to resolve this question. To probe what corporate leaders have in mind, we sought to examine whether they treated joining the Business Roundtable statement as an important corporate decision. Major decisions are typically made by boards of directors. If the commitment expressed in the statement was supposed to produce major changes in how companies treat stakeholders, the boards of the companies should have been expected to approve or at least ratify it. We contacted the companies whose CEOs signed the Business Roundtable statement and asked who was the highest-level decision maker to approve the decision. Of the 48 companies that responded, only one said the decision was approved by the board of directors. The other 47 indicated that the decision to sign the statement, supposedly adopting a major change in corporate purpose, was not approved by the board of directors. We received responses from only about three-tenths of the signatories. Yet there is no reason to expect that these companies are less likely than companies electing not to respond to have obtained board approval for joining the statement.
The late innings of Donald Trump’s four-year campaign in the White House come to look stranger than the big-league baseball season—both of which are in the deep shadow of the pandemic (13 St. Louis Cardinals tested positive this week). It’s the president who has to answer for a thousand COVID deaths a week in midsummer U.S.; China has next to none. Another president might wilt at the breaking of his boom economy, or the prosecution coming from Manhattan on charges of bank and tax fraud in the Trump organization. But this man surges, Trump-style: he’s all for U.S. military shock troops to quell local protests that he’s provoked; he tweets his preference that the election ninety days away be cancelled. What we know about our presidential race 90 days from the finish, perhaps all anyone knows, is that a wounded Donald Trump will not go quietly, if he goes at all, if he does not invoke emergency powers to cancel the election. The thought this hour was—and still is—to draw out the astute Russian-and-American diagnostician Masha Gessen, a resistance figure in two countries and author of a new book titled Surviving Autocracy. But then the plot thickened, particularly around the mayhem in Oregon after federal shock-troops had landed, over the objections of state governor, city mayor, and a militant wall of moms. A grave but lonely warning turned up in a New York Times guest-opinion piece. It was written by the sometime Colorado senator and presidential candidate Gary Hart, who joined this week’s conversation from his cabin a few mountains away from Denver. Martha Minow, a professor at Harvard Law School, also joins.
Have companies become more focused on stakeholders and toned down their attention to the interests of shareholders? Many argue there has been a shift but Harvard academics say they have evidence that is it is more like business as usual. After looking the evidence from 48 US companies signed up to a ground breaking pledge to work for “all stakeholders” rather than shareholders alone, Lucian Bebchuk and Roberto Tallarita, experts in governance at Harvard Law School, conclude than in reality nothing much has changed…Bebchuk and Tallarita look at companies who signed up to an August, 2019 statement from the Business Roundtable —a club for US corporate leaders, then chaired by JPMorgan Chase chief executive Jamie Dimon—which saw 180 big name companies declare: “Each of our stakeholders is essential. We commit to deliver value to all of them, for the future success of our companies, our communities and our country.” The statement was reported around the world and is frequently cited as evidence that corporate attitudes have changed and a fundamental shift is underway at the heart of capitalism. The Harvard profs conclude the evidence is lacking. They asked Business Roundtable companies if the decision to sign up to the statement had been cleared by their boards. Of the 48 that replied just one confirmed its board was consulted first. The other 47 “indicated” their boards were not involved. Bebchuk and Tallarita wonder why chief executives would sign up to such a significant statement without the green light from their boardrs. The most “plausible” explanation, they say, is that the CEOs did not believe the statement entailed any major change to the way stakeholders would be treated. The profs note it could be because CEOs are convinced their stakeholders are already well considered. “But it still implies that they believed signing the statement wasn’t a major step for their businesses,” they write. Then they dug a little deeper looking at the board-approved governance guidelines published by a number of the companies. They found they “mostly reflect a clear ‘shareholder primacy’ approach.” They cite the example of JPMorgan Chase itself, where guidelines clearly state the board works “on behalf of the firm’s shareholders.”
With stimulus talks with Congress at an impasse, President Donald Trump signed a series of executive orders on Saturday to provide temporary relief to Americans who are suffering from the economic impact of the coronavirus pandemic. At a news conference from his golf resort in Bedminster, N.J., Trump signed four orders that will provide an additional $400 per week in unemployment benefits, suspend payments on some student loans through the end of the year, protect renters from being evicted from their homes, and instruct employers to defer certain payroll taxes through the end of the year for Americans who earn less than $100,000 annually. Trump said he decided to act on his own and order the benefits after two weeks of negotiations with congressional Democrats collapsed without an agreement on a new coronavirus relief package…But questions remain as to whether Trump has the legal authority to take these actions – or the money to pay for them…Trump had been threatening for days to provide relief through an executive order if negotiations failed to produce a deal. Lawmakers had interpreted Trump’s threat as a way to pressure negotiators into making a deal. Even some Republicans said they believed Trump was bluffing. “I doubt if he’s serious,” Sen. Chuck Grassley, R-Iowa, told reporters on Thursday. He was…Laurence H. Tribe, professor emeritus at Harvard Law School, called Trump’s actions “cynical” as well as unconstitutional. “Trump might as well have directed the distribution of $100,000 to every family earning under $1 million a year,” he said. “He obviously has no legal power to do that. But daring anyone to take him to court might be good politics.”
In the wake of Vince McMahon’s Alpha Entertainment reaching an agreement to sell the XFL for $15 million, creditors are left wondering if they’ll see any of the money. As first reported by Sportico’s Scott Soshnick, a group that includes former WWE star Dwayne “The Rock’’ Johnson and RedBird Capital CEO Gerry Cardinale will buy the team, pending approval by U.S. Bankruptcy Judge Laurie Selber Silverstein. “I’ll be lucky to get pennies on the dollar,” a sports business professional who operates a small company tells Sportico…As an unsecured creditor in Alpha’s chapter 11 bankruptcy, the source lacks any collateral in Alpha’s properties or assets. It also means they’ll be among the last in line to collect any proceeds from the sale. The XFL, the professional maintains, owes them tens of thousands of dollars for services already rendered…One factor advantaging Alpha—and as acknowledged by creditors in their objection—is that, as the debtor, Alpha is entitled to deference in seeking approval of the proposed sale. A related factor is that the relevant legal standard for review is not especially difficult to meet. That standard is the business purpose test, which requires there be a sensible reason for the sale and a fair price for it. Harvard Law School Professor Mark Roe, an expert in bankruptcy law, highlighted these factors in an interview. The business purpose test, Roe said, is “usually an easy standard to satisfy as the sales’ proponents just have to give a plausible justification.” He surmises that for this sale, “it could have been XFL has been languishing and a new owner like Dwayne Johnson can give it a boost of publicity.” Where Roe sees Alpha potentially running into more trouble is “the structure of the auction and the relationships.” “Even if there’s a business purpose,” Roe notes, “the court should be structuring an auction that’s fair and likely to bring forward the best price.” Roe believes the court will attempt to determine if insiders downplayed asset value. In that instance, “the bidding documents would be defective.” Roe also draws attention to the creditors’ concern about the sale potentially releasing the insiders of causes of action—“that,” Roe said, “would be another issue separate from whether there was a sound business purpose.”
An article by John Ketcham ’21: We are living through perhaps the unhappiest period in half a century, one that offers good reasons to be gloomy. The ongoing Covid-19 pandemic and America’s political and social disharmony are obvious factors, but for many, unhappiness also stems from not having a “third place” to socialize. The term, coined by sociologist Ray Oldenburg, author of the seminal book The Great Good Place, refers to social venues other than home and work—local coffeehouses, bars, hair salons, libraries, diners, churches, and the like, the public-private hybrids where communities are built through conversation and conviviality. These genial places are at risk of becoming another casualty of the coronavirus. New dangers associated with being indoors raise the prospect that third places will remain inaccessible, at least until scientists better understand the transmission of Covid-19 and develop a vaccine. But the social benefits of third places make them too valuable to be forgotten or relegated to irrelevancy. Third places fulfill the human need for socialization. In exchange for a modest purchase, patrons can stay and talk with one another for as long as they wish, fostering a convivial spirit of relative equality. Economic and social differences fade to the background. Civic engagement grows as citizens discuss the latest news, yet unanimity is not required to create a sense of shared identity. All are bound together by a common activity, grounded in a local setting. Psychologically, happy times in third places can help instill Burkean attachments to one’s own home and community. At the societal level, third places build social capital in two ways. Regular patrons often develop strong bonds of familiarity, trust, and friendship, forming the foundation for mutual aid. Third places are also forums for introducing people of different occupations and backgrounds, thus expanding personal networks, disseminating new knowledge, and inspiring a sense of neighborhood unity.
A new report claims that Facebook fired one of its employees after the individual compiled evidence of the social media platform giving preferential treatment to right-wing accounts and news sources. A senior engineer at Facebook was reportedly fired after he collected internal evidence that the company was biased toward major right-wing accounts in helping them remove fact-checks from the material they posted on the platform, according to BuzzFeed News. The former employee had posted his findings in Workplace, an internal communications platform used by the company akin to Slack. Facebook reportedly responded by taking down his post, limiting internal access to the materials that he cited, and firing him…There have been concerns that Facebook has been appeasing Trump and pro-Trump media outlets in a haphazard attempt to maintain objectivity. Facebook employees protested the company in May because of these concerns and some advertisers have withdrawn support…Trump’s attempts to control social media outlets so that they act in ways that are favorable to his political interests pose a direct threat to the First Amendment. “The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment,” Harvard Law professor Laurence Tribe told Salon by email in May after the president announced he would retaliate against Twitter for fact-checking two of his tweets. “That doesn’t make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run.”