HLS weighs in

The latest word from Harvard Law faculty, alums, fellows and other affiliated authorities.

A Potential Recourse for Targets of White House Security Clearance Threats

An op-ed by Vartan Shadarevian `20. The White House has recently stated that it is considering revoking the security clearances of several former high ranking public officials…Such a move would be unprecedented, and the repercussions are potentially far-reaching.

Continue Reading at Just Security »

The Benefit of Having the Same Name as a Police Officer

An op-ed by Anupam B. Jena, Cass R. Sunstein and Tanner R. Hicks. Justice is blind — or at least that’s the ideal. Across the United States, the law is administered by a million police officers and more than 30,000 state and federal judges. While these officials usually have good intentions, there’s increasing awareness of the role that racial and other biases often play in law enforcement decisions. What’s less well known is how idiosyncratic factors can shape how people are treated.

Continue Reading at The New York Times »

Trump’s Biggest Climate Move Yet is Bad for Everyone

An op-ed by Jody Freeman. The Environmental Protection Agency and Department of Transportation moved Thursday to fulfill President Trump’s promise to undo landmark Obama-era rules requiring automakers to steadily reduce greenhouse gas pollution from cars and trucks and improve fuel efficiency through 2025. Transportation is the largest source of greenhouse gas emissions in the United States, with the biggest share coming from cars and trucks. Yet the government now plans to freeze fuel economy and greenhouse gas standards indefinitely at levels set for 2020, thwarting progress on addressing climate change. To make sure it accomplishes that goal, the Trump administration also wants to strip California of its authority to set stricter greenhouse gas standards for vehicles sold within its borders, which the state is authorized to do under a longstanding provision of the Clean Air Act.

Continue Reading at The New York Times »

The Rod Rosenstein ‘Impeachment’ Is a Sham

An op-ed by Jack Goldsmith. The July 25 resolution by 11 House Republicans introducing articles of impeachment against deputy attorney general Rod Rosenstein is not a serious legal document. It is filled with embarrassing factual errors. Most notably, the fifth article charges Rosenstein with responsibility for the Justice Department’s supposed obfuscation of the Steele dossier’s origins as opposition research on behalf of the DNC and Hillary Clinton’s presidential campaign: “Under Mr. Rosenstein’s supervision, Christopher Steele’s political opposition research was neither vetted before it was used in October 2016 nor fully revealed to the FISC.” The problem is that Rosenstein became deputy attorney general in April 2017, long after the Steele dossier was used in the Carter Page FISA application. He was not, and could not have been, responsible for the alleged obfuscation—an allegation that the recent release of the Carter Page application revealed is baseless.

Continue Reading at The Weekly Standard »

The Real Problem With Stock Buybacks

An op-ed by Jesse M. Fried and Charles C.Y. Wang. There is a problem with share buybacks—but it isn’t the one many critics and legislators are obsessed with…The real problem is that buybacks, unlike dividends, can be used to systematically transfer value from shareholders to executives. Researchers have shown that executives opportunistically use repurchases to shrink the share count and thereby trigger earnings-per-share-based bonuses. Executives also use buybacks to create temporary additional demand for shares, nudging up the short-term stock price as executives unload equity. Finally, managers who know the stock is cheap use open-market repurchases to secretly buy back shares, boosting the value of their long-term equity. Although continuing public shareholders also profit from this indirect insider trading, selling public shareholders lose by a greater amount, reducing investor returns in aggregate.

Continue Reading at The Wall Street Journal »

What If the Trump Era Represents the New Normal?

An op-ed by Cass Sunstein. Whether something seems bad, unethical or horrifying depends on what else is happening out there. That helps explain why we often fail to appreciate amazing social progress — and why we can miss it when things are falling apart. To understand these points, consider a stunning new paper by a team of psychologists, led by David Levari of Harvard University. Their central idea has an unlovely name: “prevalence-induced concept change.” Their findings, based on a series of experiments, are profoundly reassuring in some respects, but also ominous in light of current political developments in the U.S. and elsewhere.

Continue Reading at Bloomberg »

Collusion Isn’t a Crime, But Aiding and Abetting Is

An op-ed by Noah Feldman. Rudy Giuliani can’t seem to get the law right. The president’s lawyer suggested Monday on CNN and Fox News that Donald Trump didn’t commit a crime even if he colluded with Russians during the 2016 campaign by encouraging them to hack Hillary Clinton’s email server. “I don’t even know if that’s a crime, colluding about Russians,” Giuliani put it. “You start analyzing the crime – the hacking is the crime. The president didn’t hack. He didn’t pay them for hacking.” That’s just wrong.

Continue Reading at Bloomberg »

A Shadow Across Our Democracy

An op-ed by Charles Fried. The fate of our democracy may very well hang on the vote of Justice Kennedy’s replacement. If a newly constituted Supreme Court were to overrule (or limit to a vanishing point) Roe v. Wade, it would only matter if state legislatures restricted abortion rights. Undocumented men and women brought to this country as children and who have lived here their whole lives are only in danger of deportation because of the inaction of the national legislature. The President can impose a twenty-five percent tariff on aluminum and steel from Canada on grounds of national security only because Congress gave him that unilateral power. And rules protecting the environment can be reversed only because Congress has not revisited and updated the enabling legislation in decades. In a well-functioning democracy, we would not need an unelected federal judiciary to save us from these and a long list of other destructive and often unpopular outcomes. But we do not have a well-functioning democracy.

Continue Reading at Harvard Law Review Blog »

The Weak Case Against Stock-Market Short-Termism

An op-ed by Mark Roe. Translated from the French: It’s commonly thought that the stock market forces firms toward excessively short-term strategies. This expected short-termism is often thought to be a source of a good part of our current economic problems, leading policymakers to consider laws . . . to reduce stockholders’ influence…Although some local observations that are consistent, the evidence of an economy-wide impact is thin . . . .R&D expenses [thought to be a victim of stock-markets] have been rising, not falling, even while stockholder influence is thought to be rising. And, contrary to the idea that short-termism is draining cash [for investment] from large American enterprises, corporate treasuries are more flush with cash than ever. Why the gap between received wisdom and the weak supporting evidence?

Continue Reading at Le Monde »

Where Is the Outrage Over the Institutionalized Children Denied Adoptive Homes?

An op-ed by Elizabeth Bartholet. Outrage has been expressed by virtually all commenting on the president’s policy separating migrant children from their parents. Critics have expressed horror at the audios of crying children, and have condemned the harm they will suffer as a result of being torn from parents and placed in institutions or foster homes. This outrage is right. These children will suffer, and innocent children should not be used as pawns in the Administration’s war against immigrants…But where is the outrage at the U.S. government policies requiring that infants and children worldwide be imprisoned in institutions and denied available homes in international adoption?

Continue Reading at Morning Consult »

Brett Kavanaugh Will Right the Course of the Supreme Court

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.

Continue Reading at Time »

Anthony Kennedy’s departure is deeply worrying

An op-ed by Richard Lazarus. Justice Anthony Kennedy’s announced retirement earlier today sent shock waves across the nation’s capital and the nation itself. Justice Kennedy’s impact on the Supreme Court during the past 30 years has been enormous. He has been at the center of the Court, often supplying the controlling vote in closely divided, high-profile cases. But he has not been a judicial minimalist. Whichever way he swings, Justice Kennedy swings for the fences.

Continue Reading at CNN »