It’s a problem we all recognize but fail to grasp: global emissions of CO2 are pushing humanity towards a post-civilization scenario. The latest science predicts a 160-foot foot sea level rise if humans burn all known oil, gas, and coal reserves. If fossil fuel companies continue to pursue business as usual for the next 35 years, global temperatures by 2050 will be 7°F higher than the preindustrial average. Just half that warming would likely trigger the melting of Greenland and West Antarctic ice sheets, raising sea levels by 33 feet.
When can a corporation be prosecuted for a crime? One of the most remarkable stories in all of American criminal law is the recent rise of the corporate prosecutions. From last week’s announcement of new Department of Justice policies on corporate prosecutions, to the billions of dollars of currency fixing settlements in prosecutions of major banks, to the campaign trail speeches of candidates calling for more prosecutions of bad corporate actors, to the concern that “too big to fail” institutions can avoid justice for the harm they caused to our economy, corporate crime has never been more central to the national debate. It should be a greater part of the law school discussion too and there is wonderful work that law students can get involved in. Continue reading “What Every Harvard Law Student Needs to Know About Corporate Crime”
The American Museum of Tort Law is the first law museum in North America of any kind. It opened to the public on September 26, 2015. That morning I drove to the gravel driveway of Hastings Dorm and picked up three Harvard Law Students: Pete Davis, Mike Shammas and Jake Sussman. We were embarking on a law school field to check this museum out. Throughout the country there are 35,000 museums dedicated to a variety of subjects, such as sports, UFO’s and blueberries, but not one is dedicated to the subject of law. Given that America prides itself for being a country governed by the “rule of law”, it was about time a law museum made its way into the mix. Maybe it took till 2015 to have a law museum because exhibiting the law is not intuitive. Parchment behind Plexiglas will not draw many viewers. Even hardcore law students would prefer to read a case on their MacBooks. So how could this museum pull it off? The four of us pondered this question as we drove to Winsted Connecticut, the location of the tort museum. Continue reading “A Field Trip to the American Museum of Tort Law”
The rape trial of Owen Labrie opened a stunningly clear window into the culture of St. Paul’s. It’s a culture that I feel I know well. I know it because I went to Phillips Exeter Academy, which is part of that same coterie of prep schools, and my daughter went to St. Paul’s. Growing up in that culture, this is what I learned about gender relations: first base, second base, third base, homerun. The object was to score, to push against resistance, to overcome by whatever means.
On any given day in the United States, supermax prisons and solitary confinement units hold tens of thousands of men, women, and children in conditions of extreme isolation and sensory deprivation, without work, rehabilitative programming, or meaningful human contact of any kind. These people are confined to small, often windowless cells with solid steel doors, where their only interactions with prison staff take place through “feeling slots,” and their only respite may be one hour a day to exercise alone in a walled or fenced “dog runs.” They may remain in solitary for anywhere from weeks to decades. This massive experiment in total human isolation is one of the nation’s most pressing human rights issues. Continue reading “What Every Harvard Law Student Should Know About Solitary Confinement”
On August 27, 1774, a Saturday, Timothy Paine (Harvard 1748, fifth in class, ranked at the time by “dignity of family”) received some visitors at his home in Worcester. Two thousand militiamen had gathered on the town common, they told him, to obtain his resignation from the Council. King George III had just appointed Paine and 35 others to serve on that powerful body, taking the place of council members who had been duly elected in May, and each of these appointees, like Paine, now had to face the people’s wrath. Continue reading “What Harvard Law Students Should Know about the Popular Roots of Law in Massachusetts”
Marcia Sells will officially assume her position as Dean of Students on September 21, fulfilling the position vacated by Ellen Cosgrove’s departure for Yale Law School. After experiences ranging from ballet to private practice to academia, Sells is looking forward to her role in the Law School’s Administration.
“I like figuring out how to make things work well,” said Sells. “There are opportunities for collaboration between different offices—which is true in any field, especially higher education. I also like the engagement with people who are at different stages of their professional and intellectual development. It is nice to be there, and hopefully have some role in helping people find the beginnings of their paths.”
The Record, the oldest independent law school newspaper in the country, relies on donations to continue publishing, and we would be extremely grateful if you could donate — even a small amount — to help us operate next year. (For more information, see the “donate” tab on our website at the following link: http://hlrecord.org/?page_id=20019.) Publishing costs each year are in the thousands.
Before last year, The Record — a presence since the 1940s — had stopped publishing regularly and had been relegated to an online existence. But last year, with the generous help of former editor-in-chief Ralph Nader, we’ve been able to publish biweekly and to serve as a forum for Harvard Law students and others to debate issues shaking the campus and the broader community. In addition to regularly publishing quality pieces, we’ve garnered thousands of followers on Facebook and Twitter and earned mentions in numerous other media outlets.
I have long considered myself an activist. I have tried to “change the system” by getting elected to boards, submitting shareholder resolutions and writing op-eds. Not a grassroots effort, by any means, but more of a corporate Robin Hood. I’ve never been a street protester, a marcher or a boycotter. I was already out of school and working in the 1960’s and 70’s so I became an “inside” activist.
Then, this past spring I read in the Crimson “Divest Harvard Plans Weeklong Blockade of Massachusetts Hall,” I had to ask myself: why I am not participating? Why not me? And so I went. My wife and I drove to Cambridge and joined the small group gathered to protest Harvard’s investment in fossil fuels. Continue reading “What Harvard Law Students Should Know About Activism”
For more than a decade, the Justice Department morphed its approach to corporate crime, eschewing criminal prosecutions in favor of deferred prosecution and non-prosecution agreements that allowed large corporations to avoid the ignominy of criminal convictions. The trend began during the Bush administration and became so dominant during the Obama administration that the Criminal Division of the Justice Department entered deferred prosecution and non-prosecution agreements in more than two-thirds of the corporate cases it resolved.
There seemingly were no crimes that did not qualify for corporate absolution. The Justice Department entered a non-prosecution agreement in the Upper Big Branch mine disaster that killed 29 miners, even though the Labor Department found that the mine owner had committed over 300 egregious violations of federal mine safety laws. The Justice Department agreed to a deferred prosecution with HSBC, even though the bank was involved in nearly a trillion dollars of money laundering, much of it from drug trafficking. There were no prosecutions at all for the worst financial crisis since the Great Depression, even though financial institutions and officials within those companies took risks and engaged in conduct that imperiled the global economy.
In the movie The Firm, there’s a moment when Tom Cruise realizes the job he accepted fresh out of Harvard Law School (“HLS”), with the apparently staid tax law firm of Bendini, Lambert & Locke, has one major drawback: the Morolto crime family is the firm’s biggest client, and most of its lawyers are heavily involved in money laundering and tax fraud. This raises a question. Could that really happen? John Grisham thrillers are best enjoyed when such doubts are set aside, of course, but the question is a serious one nonetheless, because the plot of The Firm springs from the very real imbalance of power that exists between law students and the law firms that hire them. When law students graduate, they are in the position of apprentices, with little or no experience in the actual practice of their profession. At the same time, the average “apprentice” now starts a career in the law with more than $100,000 in student debt. This combination of inexperience and financial need creates a powerful incentive for law students to seek employment with large corporate law firms, which may pay double or triple the starting salary of a job in government or the non-profit sector. Suppose, then, that such a firm violates the law or rules of professional conduct. Would it be required to disclose that fact as a condition of its participation in the On-Campus Interview (“OCI”) program at HLS? And if not, what safeguards are in place to ensure that students don’t wind up like Tom Cruise, inadvertently agreeing to work for a firm that engages in unethical or even criminal conduct?
Is that title the product of ubiquitous attorney hyperbole? Or accurate? I believe the decision maybe the seminal example of the “King Wears No Clothes” lesson. Indeed, it has spawned no recognition within the popular press, and is apparently not comprehended by any editorial board from the Wall Street Journal to USA Today.
The U.S. Supreme Court case of North Carolina Dental Board v. FTC last month is, for antitrust and state regulatory law, the equivalent of Brown v. Board of Education for education and civil rights. To explain, in 1943 the same Court decided the seminal case of Parker v. Brown. It held that federal antitrust law applies, as a matter of supremacy, to matters affecting interstate commerce (pretty much everything). But an exemption was made for what is termed “state action.” That is, a state regulatory agency could arrange what would otherwise be an antitrust offense. Such a protective status require two conditions: it must be a restraint that was affirmatively articulated by the sovereign state — and it must be subject to “ adequate state supervision.” That second prong is critical. The state may not delegate sovereign power to restrain trade without that independent review. Another subsequent case (Midcal) by the Court made clear that this “supervision” may not be a general or pro forma review. It must be specific and real, and examine the anticompetitive implications of each public decision before implementation.
Since this 1943 decision, much has happened to the political reality of our “democracy.”
Continue reading “What Harvard Law Students Should Know About the Recent Supreme Court NC Dental Case: Arguably the Most Important New Precedent for Public Interest, Administrative, Antitrust, and State Government Law Since 1943”
In Robert Bolt’s play, Man for All Seasons, Sir Thomas More is condemned to death for denying the legitimacy of the king’s divorce. The only witness against him is Richard Rich, an ambitious young lawyer who, by false swearing, dooms More and damns his own soul for all eternity. As More struggles to understand why, he learns that Rich has just been appointed Attorney-General for Wales. “For Wales?” he asks the young man. “Why Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales?”
I think of Richard Rich each time I read of another lawyer who has disgraced himself for power or preferment. Indeed, I have invented the “Richard Rich Society” in my mind for just such people. Their numbers include the Justice Department lawyers who authorized the kidnapping, torture, indefinite detention, and assassination of alleged terrorists by the Bush and Obama administrations. Others abetted these lawyers, or shielded them from exposure or prosecution. No one today would ask if these disgraceful lawyers fear the wrath of a righteous God. However, it is not too much to ask what they will tell their children when asked: “Daddy, what did you do in the war against terrorism?”
Their practiced answer, of course, will be “I kept America safe from terrorists.” However, history books will tell a different story, and the children will learn how their fathers twisted the law to give CIA agents and military guards legal cover so that they might kidnap and torture often innocent “enemies,” and hold them without trial for more than a decade in CIA and military prisons, including Guantanamo – the American Devils Island.
First, the bad news: there is a serious public policy problem at which lawyers, when swinging for the fences, have repeatedly struck out. Now the good news: lawyers, when working with community organizers and labor leaders, are winning terrific precedents.
The policy problem is corporate welfare, especially when states and localities (not counting Uncle Sam) spend an estimated $70 billion per year on “economic development incentives” that are all too often windfalls extracted when companies exploit federalism to whipsaw states against each other.
In a Darwinian corporate version of rising inequality, the problem has gotten much worse the past decade, with the soft economy creating more desperate politicians. Whereas we used to count about 10 “megadeals” per year (essentially deals costing taxpayers nine or ten figures each) for a total of $3 billion annually, we are now counting about 20 megadeals per year costing more than $6 billion.
The common law followed by most states is the so-called “employment at-will” doctrine – that employees can be terminated for any reason. There are many exceptions to the “at-will” doctrine. Discharges in violation of federal or state statutes, for example non-discrimination statutes such as Title VII of the Civil Rights Act, are forbidden. Further many employment agreements, for example collective bargaining agreements applicable to union shops, forbid discharges without “just cause”.
Victims of discriminatory discharge because of race, gender etc., and protected by statute can often enforce their rights by filing charges with the appropriate governmental agency, for example the Equal Employment Opportunity Commission (EEOC) or National Labor Relations Board (NLRB).