Harvard Law Research Articles

Bruce A. Kimball and Daniel R. Coquillete, The Intellectual Sword – Harvard Law School, the Second Century, Cambridge, MA: Belknap Press, 2020, 880 pp, hb £39.95

The Modern Law ReviewVolume 84, Issue 4 p. 946-951 REVIEWS Bruce A. Kimball and Daniel R. Coquillete, The Intellectual Sword – Harvard Law School, the Second Century, Cambridge, MA: Belknap Press, 2020, 880 pp, hb £39.95 John Henry Schlegel, Corresponding Author John Henry Schlegel schlegel@buffalo.edu The University at Buffalo School of Law. email: schlegel@buffalo.eduSearch for more papers by this author John Henry Schlegel, Corresponding Author John Henry Schlegel schlegel@buffalo.edu The University at Buffalo School of Law. email: schlegel@buffalo.eduSearch for more papers by this author First published: 01 February 2021 https://doi.org/10.1111/1468-2230.12621 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume84, Issue4July 2021Pages 946-951 RelatedInformation

Learning the Law in 1830s Massachusetts: The Contrasting Experiences of Wendell Phillips and Lysander Spooner

In the 1840s, Lysander Spooner and Wendell Phillips espoused opposing abolitionist interpretations of the United States Constitution. The former argued that the document did not sanction the enslavement of human beings, the latter denounced the text as a proslavery “covenant with death, and an agreement with hell.” This essay explores the effects of their contrasting legal educations on these theories. In the 1830s, Spooner worked as a legal apprentice under the tutelage of John Davis, Charles Allen, and Emory Washburn, three prominent lawyers (and politicians) working in Worcester, Massachusetts. By contrast, Phillips, consistent with his Boston Brahmin ancestry, attended the then-nascent Harvard Law School. The essay concludes that Spooner’s legal philosophy shows a far greater indebtedness to his legal education than does Phillips’s. This argument is defended by drawing on the voluminous correspondence and papers of both Phillips and Spooner, and the writings of their legal tutors and mentors.

Skin in the Game: Modulate AI and Addressing the Legal and Ethical Challenges of Voice Skin Technology

This educational toolkit from the BKC Policy Practice on AI includes a case study, a teaching note, and a background primer. Collectively, they comprise a toolkit that can illuminate some of the challenges in moving from AI principles to practice. The case study, Skin in the Game: Modulate AI and Addressing the Legal and Ethical Challenges of Voice Skin Technology, follows MIT alums and friends Carter Huffman and Mike Pappas, who co-founded Modulate in 2017 to commercialize their technology for creating synthetic voice skins. By innovatively applying concepts from artificial intelligence systems called Generative Adversarial Networks (GANs), the two men had created a novel approach to make one voice sound like another in real time. Although Modulate had extremely limited human and financial resources, Huffman and Pappas wanted to ensure that this technology, with its ability to match the timbre of almost any individual on the planet, would not be misused. How could they simultaneously push Modulate forward, maintain its technological and competitive edges, and make their investors happy, while also upholding a code of ethics? For a tiny company like Modulate, what did this look like? Written by Rachel Gordon, Research Associate, Teaching Learning and Curriculum Solutions, Harvard Law School Library, and Ryan Budish, Assistant Research Director, Berkman Klein Center for Internet & Society at Harvard University, this case was developed as a basis for discussion in educational and training environments. It is intended to spark discussions among students as they put themselves in the place of the Modulate co-founders, and explore the conflicts and tensions that they faced. The case is not an endorsement of any one approach or business, but instead highlights the complex and dynamic challenges that AI ethics can present in the real world.

The Paper of Record Meets an Ephemeral Web: An Examination of Linkrot and Content Drift within The New York Times

Hyperlinks are a powerful tool for journalists and their readers. Diving deep into the context of an article is just a click away. But hyperlinks are a double-edged sword; for all of the internet’s boundlessness, what’s found on the web can also be modified, moved, or entirely disappeared. This often-irreversible decay of web content is commonly known as linkrot. It comes with a similar problem of content drift, or the often-unannounced changes––retractions, additions, replacement––to the content at a particular URL. Our team of researchers at Harvard Law School has undertaken a project to gain insight into the extent and characteristics of journalistic linkrot and content drift. We examined hyperlinks in New York Times articles starting with the launch of the Times website in 1996 up through mid-2019, developed on the basis of a dataset provided to us by the Times. We focus on the Times not because it is an influential publication whose archives are often used to help form a historical record. Rather, the substantial linkrot and content drift we find here across the New York Times corpus accurately reflects the inherent difficulties of long-term linking to pieces of a volatile web. Results show a near linear increase of linkrot over time, with interesting patterns emerging within certain sections of the paper or across top level domains. Over half of articles containing at least one URL also contained a dead link. Additionally, of the ostensibly “healthy” links existing in articles, a hand review revealed additional erosion to citations via content drift.

The Intellectual Sword: Harvard Law School, The Second Century by Bruce A. Kimball and Daniel R. Coquillette

The Intellectual Sword: Harvard Law School, The Second Century by Bruce A. Kimball and Daniel R. Coquillette

For Whom Corporate Leaders Bargain: Presentation Slides

The presentation slides in this document provide an overview of our study, For Whom Corporate Leaders Bargain, which is forthcoming in the Southern California Law Review. At the center of a fundamental and heated debate about corporate purpose, an increasingly influential view (which we refer to as “stakeholderism”) advocates giving corporate leaders increased discretionary power to serve all stakeholders and not just shareholders. Supporters of stakeholderism argue that its application would address growing concerns about the impact of corporations on society and the environment. By contrast, critics of stakeholderism argue that corporate leaders should not be expected to use expanded discretion to benefit stakeholders. This Article presents novel empirical evidence that can contribute to resolving this key debate. Following a stakeholderist framework, the constituency statutes adopted by more than thirty U.S. states authorize corporate leaders to give weight to stakeholder interests when considering a sale of their company. Using hand-collected data, we study how corporate leaders in fact used their stakeholderist discretion in transactions governed by such statutes in the past two decades. In particular, we provide a detailed analysis of more than 100 transactions governed by such statutes in which corporate leaders negotiated a company sale to a private equity buyer. We find that corporate leaders used their discretion to obtain gains for shareholders, executives, and directors. However, despite the clear risks that private equity acquisitions often posed for stakeholders, corporate leaders generally did not use their discretion to negotiate for any stake-holder protections. Indeed, in the small minority of cases in which some stakeholder protections were formally included, they were generally cosmetic and practically inconsequential. Beyond the implications of our findings for the long-standing debate on constituency statutes, these findings also provide important lessons for the ongoing debate on stakeholderism. At a minimum, stakeholderists should identify the causes for constituency statutes’ failure to deliver stakeholder benefits in the analyzed transactions and examine whether embracing stakeholderism would not similarly fail to produce such bene-fits. After examining alternative explanations for our findings, we conclude that the most plausible explanation lies in corporate leaders’ incen-tives not to protect stakeholders beyond what would serve shareholder value. Our findings thus indicate that stakeholderism cannot be relied on to produce its purported benefits for stakeholders. Stakeholderism there-fore should not be supported as an effective way for protecting stakeholder interests, even by those who deeply care about stakeholders. The document is based on presentations slides we prepared for various presentations of our study, including at Columbia Law School, Harvard Law School, the University of Chicago, and the 2021 Global Corporate Governance Colloquium. Our study For Whom Corporate Leaders Bargain is part of a larger research project of the Harvard Law School Corporate Governance on stakeholder capitalism. Another part of this research project is The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita.

Will Corporations Deliver Value to All Stakeholders?

Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance encourage society to rely on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics of stakeholder governance question whether corporate leaders have incentives to protect stakeholders and doubt the reliability of pledges by corporate leaders to do so. We provide empirical evidence that can contribute to resolving the debate between these rival views. The most celebrated pledge by corporate leaders to protect stakeholders was the Business Roundtable’s Statement on the Purpose of a Corporation (the “BRT Statement”). Signed by CEOs of most of the country’s major companies, the BRT Statement expressed a commitment to deliver value to all stakeholders and not just shareholders and was widely viewed as a major milestone that would usher in a new stakeholder capitalism and significantly improve the treatment of stakeholders. If any companies could be expected to follow through on stakeholder rhetoric, the companies whose CEOs signed the highly visible BRT Statement would be natural candidates to do so, and they thus provide an instructive test case for an empirical investigation. To investigate whether the BRT Statement represented a meaningful commitment or was mostly for show, we review a wide array of hand-collected corporate documents of the over 130 U.S. public companies that joined the BRT Statement (the “BRT Companies”). We present the following six findings: First, examining the almost one-hundred BRT Companies that updated their corporate governance guidelines in the sixteen-month period between the release of the BRT Statement and the end of 2020, we find that they generally did not add any language that improves the status of stakeholders and, indeed, most of them chose to retain in their guidelines a commitment to shareholder primacy; Second, reviewing all the corporate governance guidelines of BRT Companies that were in place as of the end of 2020, we find that most of them reflected a shareholder primacy approach, and an even larger majority did not include any mention of stakeholders in their discussion of corporate purpose; Third, examining the over forty shareholder proposals regarding the implementation of the BRT Statement that were submitted to BRT Companies during the 2020 or 2021 proxy season, and the subsequent reactions of these companies, we find that none of these companies accepted that the BRT Statement required any changes to how they treat stakeholders, and most of them explicitly stated that their joining the BRT Statement did not require any such changes. Fourth, reviewing all the corporate bylaws of the BRT Companies, we find that they generally reflect a shareholder-centered view; Fifth, reviewing the 2020 proxy statements of the BRT Companies, we find that the great majority of these companies did not even mention their signing of the BRT Statement, and among the minority of companies that did mention it, none indicated that their endorsement required or was expected to result in any changes in the treatment of stakeholders; Sixth, we find that the BRT Companies continued to pay directors compensation that strongly aligns their interests with shareholder value. Furthermore, we document that the corporate governance guidelines of BRT Companies as of the end of 2020 commonly required such alignment of director compensation with stockholder value and generally avoided any support for linking such compensation to stakeholder interests. Overall, our findings support the view that the BRT Statement was mostly for show and that BRT Companies joining it did not intend or expect it to bring about any material changes in how they treat stakeholders. These findings support the view that pledges by corporate leaders to serve stakeholders would not materially benefit stakeholders, and that their main effect could be to insulate corporate leaders from shareholder oversight and deflect pressures for stakeholder-protecting regulation. Stakeholder governance that relies on the discretion of corporate leaders would not represent an effective way to address growing concerns about the effects corporations have on stakeholders. This paper is part of a larger research project on stakeholder capitalism of the Harvard Law School Corporate Governance. Other parts of this research project are The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita, and For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita.

A Lavender League of Their Own? Voice and Visibility of Lesbian Ballplayers

A Lavender League of Their Own?Voice and Visibility of Lesbian Ballplayers Peter Dreier (bio) In 2010, President Barack Obama nominated Elena Kagan, the Solicitor General and former dean of the Harvard Law School, to serve on the Supreme Court. The New York Post ran a seventeen-year-old black and white photograph of Kagan smiling and getting ready to swing a bat in a softball game under the headline, "Does this photo suggest high court nominee Elena Kagan is a lesbian?"1 Other news outlets quickly raised the same question, stirring a controversy over Kagan's sexuality, which was no doubt what those opposed to Kagan's nomination intended. The controversy reflected both the persistent stigma against lesbianism and the persistent stereotype that links women athletes—and particularly baseball and softball players—to lesbianism. The story of lesbians in baseball parallels the struggles of women and gay people to gain more equality in all walks of life. In the 1940s and 1950s, when lesbianism was a taboo topic, especially in the sports world, the All-American Girls Professional Baseball League—the inspiration for the 1992 film A League of Their Own—did everything it could to avoid that stigma. The rise of modern feminism in the 1970s, especially the passage of Title IX of the federal Education Act of 1972, significantly increased the number of girls and women participating in organized sports at all levels, from preteens through the professional ranks. As the gay rights movement also burgeoned, a growing number of lesbian athletes came out of the closet, and the stigma was no longer as powerful. women in baseball Since its inception in the early 1800s, baseball was known as a sport for boys and men. "Baseball is too strenuous for womankind," wrote Albert Spalding in 1911,2 reflecting the dominant views of the period. Women faced ostracism [End Page 230] and derision—including the fear of becoming unmarried "spinsters"—if they dared violate social norms about engaging in sports.3 The first women's colleges were established in the 1860s and within a few decades some of them—including Smith College, Wellesley College, and the Women's College at Brown University—fielded baseball teams.4 In 1919, New York City's school system incorporated baseball as a physical education activity for girls. Most young girls played what eventually became known as softball, but some insisted on playing by men's rules and with baseball equipment.5 Gladys Palmer's 1929 book, Baseball for Girls and Women, included a variety of rules for indoor and outdoor games.6 the aagpbl During World War II, professional baseball faced a labor shortage. Eventually, over five hundred major leaguers served in the military during the war, while others worked in defense plants. Major league owners worried that fans would not pay to watch teams with second-tier players, but Philip K. Wrigley, the multimillionaire chewing gum magnate who owned the Chicago Cubs, figured they might buy tickets to see women play baseball. He recruited businessmen to sponsor local teams in midsized industrial cities within a one hundredmile radius of Chicago. The league started with four teams—the Racine Belles and Kenosha Comets in Wisconsin, the Rockford Peaches in Illinois, and the South Bend Blue Sox in Indiana—and eventually grew to ten. Softball had grown in popularity in the 1930s and 1940s. By 1943, there were at least forty thousand women's softball teams—one quarter of all the teams in the country.7 They provided a talent pool for the AAGPBL, but Wrigley insisted that they play some version of regular baseball. Over six hundred players participated in the league, which operated from 1943 to 1954. (Even after Jackie Robinson broke baseball's color line in 1947, the AAGPBL excluded Black players). Most players were from working-class families. Their salaries—initially ranging from $45 to $85 a week—were considerably higher than most other jobs available to women, and many men, even in defense plants. Most of them still had to work during the off-season, in factories or at clerical and office jobs. In 1987, Kelly Candaele made a public television documentary about the AAGPBL called A League...

The Mind of RGB

The Mind of RGB Toni Messina (bio) The Way Women Are: Transformative Opinions and Dissents of Justice Ruth Bader Ginsburg Cathy Cambron, ed. Welcome Rain Publishers https://www.amazon.com/Way-Women-Are-Transformative-Opinions/dp/1566494044 304 Pages; Print, $11.99 The cover of The Way Women Are, a book containing "the transformative opinions and dissents" of Supreme Court Justice Ruth Bader Ginsburg is sleek, smooth, and inviting. It pictures the judge's favorite white jabot collar woven from tiny white beads set again a black background. That's all we need to recognize who this book will be about. The book, though, is not about RBG's life, background, secret desires, or even a day in the life. It's about how she thought, as detailed through her decisions and briefs written over the decades she's been a litigator arguing in front of the Supreme Court and as a sitting justice. The editor, former lawyer Cathy Cambron, has compiled and excerpted what she believes are Justice Ginsburg’s most ground-breaking decisions and dissents in addition to sections from briefs she argued on behalf of the American Civil Liberties Union (ACLU). While they cover a variety of subjects as diverse as women's abortion rights and separation of church and state, what they share is a clear-headed, fearless view that the constitution should be applied fairly across the board for Jew, Muslim, female or male. Her writings depict the mind of a judge unafraid to upbraid her brethren's logic and ruffle feathers when an important point needs to be made. Legal opinions don't make for easy reading. The book is not a synopsis of her greatest hits, but excerpts of actual decisions and briefs which by their very logic-favoring nature do not make for engrossing prose. It's the kind of dense read that pushes law students to develop eight-cup-a-day coffee habits. Yet in spite of the formality—point A leads to point B which leads to point C—each opinion includes a nugget as memorable as any quotable-quote from Shakespeare. The brief introduction (10 pages of the 284-page book) outlines the trajectory of Ginsberg, nee Joan Ruth Bader, from her birth in Brooklyn in 1933 to her rise through Cornell in the 1950's, to Harvard Law School where she met her husband, to teaching at Columbia law and Rutgers law schools, to volunteering at the ACLU where she co-founded the Women's Rights Project, to her tenure at the U.S. Supreme Court. Hers was not an easy road, confronted with the death of her mom at age sixteen, dealing with her husband's diagnosis of testicular cancer while both were law students, struggling to find a good law job or judicial clerkship upon graduation. According to the book, in 1971, the year she argued her first case in front of the US Supreme Court (Reed v. Reed), only 3% of all attorneys in the country were women. But information on her stellar rise through the ranks and eventual appointment as the second woman ever on the Supreme Court (after Sandra Day O'Connor) has already been thoroughly explored in books, documentaries, Hollywood movies (On the Basis of Sex [2018]), and through the many interviews she's given. (RBG is not one to shy away from giving her opinion.) What this book adds, however, is a sampling of her actual words, taken from her decisions, dissents and briefs. It's an up-close view of how her mind works, the acuity of her thinking, the sharpness of her wit, and the ultimate reality that Supreme Court decision-making is a product of nine justices that requires compromise and collegiality. Because of the book's scope, starting with briefs she wrote fighting for the equal treatment of men and woman in the 1970s through current times with the present Supreme Court make-up, it's often startling and, in my mind, sad to see how her role changed from being that of a leader on issues such as worker's rights, abortion access, equal protection...

What BlackRock Inc. Gets Right in its Newly Minted Human Rights Engagement Policy

In March 2021, BlackRock Investment Stewardship published a short but consequential document titled “Our approach to engagement with companies on their human rights impacts.” This represents a significant move by the investment management firm into the global “business and human rights” policy debate. Based in New York City, BlackRock Inc. is the world’s leading investment firm with assets under management worth close to $9 trillion. A publicly traded company, it holds at least a 5% stake in more than half of the firms in the S&P 500. The value of its stock has increased 300% over the last decade. BlackRock’s priorities for 2021 include engaging with firms “whose business practices have breached international norms set forth by the UN Guiding Principles on Business and Human Rights (UNGPs) and the OECD Guidelines for Multinational Enterprises.” What does BlackRock get right in its newly minted global policy on international human rights? The answer to this question might not be what you expect. If human rights are to be considered at all, US asset managers are strongly compelled to consider them only in terms of their instrumental and material value to investors. This situation creates a conundrum for decision makers at firms like BlackRock, since the calculated instrumentalization of human rights for shareholder gain might well be seen to debase the very foundation of human rights. So, what are BlackRock’s people to do if they want to stay within the bounds of US fiduciary law and client expectations while upholding human rights, rather than undermining them? This and other questions are answered in this short essay, published on the Harvard Law School Forum on Corporate Governance in April 2021.

Toward “One Tulsa” (an excerpt)

Toward “One Tulsa” (an excerpt) by Hannibal B. Johnson A few short years ago, the touchstone phrases of what is widely considered to be the modern civil rights crusade—“Black lives matter.” “I can’t breathe.” “Say my name.”— did not resonate. In 2021 America, these phrases define the mission of advocates, activists, and allies aiming to expand social justice, transform law enforcement, and eradicate structural systemic racism. Tulsa’s historical racial trauma stands not in isolation, but as part of a long arc of oppression that has bedeviled Black Americans since our enslaved African ancestors arrived in the English colonies at Point Comfort, Virginia, in 1619. We can imagine those individuals—precious cargo on cramped slave ships—crying out in vain: “Black lives matter.” “I can’t breathe.” “Say my name.” Tulsa, 1921, is an arbitrary midpoint on the arc of oppression, somewhere between slavery and Freedom Summer. That long-ago fiery demise of Tulsa’s Black community revealed much about the trajectory of race relations in America. Connect the dots. The volatile ingredients that set Tulsa alight—white supremacy, ignorance, and fear—endure and threaten to ignite a national conflagration. Our cultural competence, individually and collectively, and our capacity to diffuse the landmines that mark our history around race will be our most reliable firewall . Diversity and the related concepts of equity and inclusion rest on the fundamental proposition that our shared humanity matters more than that which might otherwise separate and divide us. Editorial note: The full text of Johnson’s essay appears in the spring 2021 issue of Oklahoma Humanities. Visit www.okhumanities.org to read it. A Tulsa native and graduate of Harvard Law School, Hannibal B. Johnson is an attorney, author, and consultant. His latest book is Black Wall Street 100: An American City Grapples with Its Historical Racial Trauma (2020). He will deliver one of the plenary talks for “Reflecting on the Past, Facing the Future,” OU’s symposium devoted to the centennial of the Tulsa Race Massacre, on April 8–9. reason to be there. I realize now they only wanted to look. Something in me possessed me to look, too. No one in the car ever wanted to talk about the slope. I brought up Fiddler’s brother a couple of times, but the conversation went nowhere. After a few years, I pushed the idea of the photo existing out of my mind, moved across the country for college. No proof existed. But part of me knew, crossing under the overpass, slung low in the back seat, that the kids we passed on those drives—the legs, and necks, and hands that I caught pieces of—didn’t have relatives because of mine. Laurel’s street was still except for the swift rain beating down steadily against the Chrysler’s rooftop. Her house was a fixer-upper with a sagging porch. But her block was lined with beautiful single-family homes, more dignified than the housing where we grew up. I felt a sickness return to my stomach. For the first time that day, I thought of the work I was missing. And Ma. Sitting in my car, with the rain striking down, I started thinking. My grandfather in his work pants, crushed with dirt. His smile hollow and endless. His sea-green eyes, something like mine. I saw him every time I went to sleep. Sometimes I imagined the men behind him with their shovels and heard them whistling in the photo. Other times I saw my fingers smudging the prints. Since the funeral, my dreams were propelling me on this street and, with any luck, in a room with the only person I knew of who wanted to hear this story. And there I was. Parked and staring at Laurel’s entrance. With proof on the seat next to me. I could see myself, thirty-fiveyear -old me, opening the car door, getting soaked dashing toward her porch. Running up her rickety steps, made worse by the rain. Steps that I could plunge through at any moment. But let’s say I arrive on her doorstep in one piece. My knuckles rapping on the peeling wood. The sound of...

Learning of Islamic Law in Contemporary Universities: Case Study of Faculty of Sharīʻah & Law of International Islamic University Islamabad and Islamic Legal Studies Program of Harvard Law School

Purpose: This research paper aims to study the standing of learning of Islamic Law in contemporary universities. The present study highlights the significance of Islamic Law learning to the legal practitioners (Bar) and legal academicians in general and to the judges (Bench) in particular. This paper endeavors to conduct a case study of learning of Islamic law in contemporary universities in Muslim and Non-Muslim jurisdictions.
 Methodology: For the purpose of this research paper, two universities have been selected where departments of Islamic law learning are established, i.e., Faculty of Sharīʻah & Law of International Islamic University, Islamabad and Harvard Islamic Legal Studies Program of Harvard law School. This study explores that how far the above-mentioned institutions in various jurisdictions have been successful in imparting Islamic Law education among their law students. It follows discussion on the relevancy of Islamic law learning and its understanding in the solution of contemporary issues of the modern world.
 Findings: This paper finds that Islamic law, being based on divine guidance, is the complete code of conduct and therefore, provides guidelines to discover and find out the solutions of all issues of modern world to Bar, academicians and Bench.

Justice Amy Coney Barrett's confirmation could impact areas of higher ed law

Higher education administrators might wonder what Justice Amy Coney Barrett will bring to the field of higher education law in her new role on the U.S. Supreme Court. Her background as a University of Notre Dame Law Professor for 15 years indicates she has a lived understanding of the higher education environment, which could mean — should she side with the majority in a case involving higher education — she would be a natural pick for writing the court's majority opinion (she might compete for that role with Associate Justice Elena Kagan, former Harvard Law School Dean, depending on whether she, too, sided with the majority).

The Speaker of the House and Presidential Succession: An Argument and Addendum

Is Nancy Pelosi, as Speaker of the House of Representatives, properly and constitutionally second in line for the presidency? The question has urgent new relevance in light of President Donald Trump’s recent infection with the coronavirus and the related spread of infections in the top levels of his administration. If a double vacancy occurred due to the death or incapacity of both Trump and Vice-President Mike Pence, who would be next in line?The Presidential Succession Act, passed by Congress 73 years ago, says that Speaker Pelosi would take over as Acting President.But an essay by Professor Jack Goldsmith of Harvard Law School (co-authored with Ben Miller-Gootnick) claims there is “a powerful (though not airtight) argument” that placing top congressional leaders like Pelosi in the line of succession violates the Constitution. Goldsmith, like many others, relies heavily on a 1995 law review article by Professors Akhil Reed Amar and Vikram David Amar.This paper responds to the Goldsmith and Amar articles. It contends that the argument touted by Goldsmith and the Amars is not only “not airtight,” it is not even persuasive. It is stunningly weak. Any challenge to Pelosi in the event of a double-vacancy crisis would be a dangerous and reckless usurpation.The paper argues, in particular (in the addendum expanding on the Jurist essay), that careful readings of the Article VI Oath and Religious Test Clauses, and of Section 3 of the 14th Amendment, powerfully support this interpretation of the Constitution and boomerang devastatingly against the argument set forth in the 1995 Amar article.The paper also notes intriguing evidence (addendum, pp. 6-8) that impeachment may have been originally understood to be available for members of Congress.

Fees, Fines, and the Funding of Public Services: A Curriculum for Reform

Since 2018, the Liman Center at Yale Law School and Harvard Law School’s Criminal Justice Policy Program (CJPP), in partnership with the Fines & Fees Justice Center and the Berkeley Law Policy Advocacy Clinic, have collaborated to mitigate the problems faced by people of limited means and resources who interact with criminal punishment systems around the United States. Through a series of workshops and materials, we have examined how law has enabled and, on occasion, limited these harms, experienced disproportionately by communities of color.Budget pressures are part of what drives state and local governments to rely on monetary sanctions. Reform efforts have, at times, been stymied by arguments that governments “need” the money generated by regressive fines and fees. In 2008, during and after the Great Recession, state and local governments responded to sudden budget pressures by searching for new streams of revenues—including from a host of legal assessments. Given that experience, we know that the economic disruptions created by the current COVID-19 crisis will likely result in governments’ considering additional use of monetary sanctions and “user” fee financing to generate revenue. The current economic constraints place strains on subnational budgets even more acute than those experienced a dozen years ago. Thus, we fear that governments may scale up the imposition and the enforcement of monetary sanctions. More tools are needed to resist these efforts, as the economic effects of the pandemic will frame the years to come.Knowledge of subnational systems of taxing and budgeting and of fiscal policymaking processes can be put to use to reduce and to end governments’ reliance on user fees for courts and for other aspects of criminal systems. This reader aims to help experts in public finance to understand the misuse of court-based assessments which are regressive revenue streams. Subsequent volumes will provide a primer on public finance for people knowledgeable about the law and practices of unfair monetary sanctions through an overview of how money is collected and allocated at the state and local level.These materials interact with ongoing seminars, sometimes virtual, to link people expert in publicfinance with their counterparts seeking to reform unfair monetary sanctions. Through monographs such as this, we hope to support work underway to shape just and equitable revenue-generation mechanisms that avoid imposing harmful costs on vulnerable individuals, families, and communities.

Policy Recommendations to Promote Integrated Mental Health Care for Children and Youth.

Policy Recommendations to Promote Integrated Mental Health Care for Children and Youth.

For Whom Corporate Leaders Bargain

At the center of a fundamental and heated debate about corporate purpose, an increasingly influential “stakeholderism” view advocates giving corporate leaders the discretionary power to serve all stakeholders and not just shareholders. Supporters of stakeholderism argue that its application would address growing concerns about the impact of corporations on society and the environment. By contrast, critics of stakeholderism argue that corporate leaders should not be expected to use expanded discretion to benefit stakeholders. This Article presents novel empirical evidence that can contribute to resolving this key debate. Stakeholderist arguments regarding the potential stakeholder effects of hostile takeovers contributed to the adoption of constituency statutes by more than thirty U.S. states. These statutes, which remain in place and continue to govern corporate transactions, authorize corporate leaders to give weight to stakeholder interests when considering a sale of their company. We study how corporate leaders in fact used their discretion in transactions governed by such statutes in the past two decades. In particular, using hand-collected data, we provide a detailed analysis of more than one hundred cases governed by such statutes in which corporate leaders negotiated a company sale to a private equity buyer. We find that corporate leaders have used their discretion to obtain gains for shareholders, executives, and directors. However, despite the clear risks that private equity acquisitions often posed for stakeholders, corporate leaders generally did not use their discretion to negotiate for any stakeholder protections. Indeed, in the small minority of cases in which some stakeholder protections were formally included, they were generally cosmetic and practically inconsequential. Beyond the implications of our findings for the long-standing debate on constituency statutes, these findings also provide important lessons for the ongoing debate on stakeholderism. At a minimum, stakeholderists should identify the causes for constituency statutes’ failure to deliver stakeholder benefits in the analyzed cases, and examine whether embracing stakeholderism would not similarly fail to produce such benefits. After examining alternative explanations for our findings, we conclude that the most plausible explanation lies in corporate leaders’ incentives not to protect stakeholders beyond what would serve shareholder value. Our findings thus indicate that stakeholderism cannot be relied on to produce its purported benefits for stakeholders. Stakeholderism therefore should not be supported as an effective way for protecting stakeholder interests, even by those who deeply care about stakeholders. Presentation slides for this paper are available on SSRN here . This paper is part of a larger research project of the Harvard Law School Corporate Governance on stakeholder capitalism and stakeholderism. Other parts of this research project incude The Illusory Promise of Stakeholder Governance and Will Corporations Deliver Value to All Stakeholders?, both by Lucian A. Bebchuk and Roberto Tallarita.

Catalytic agents? Lon Fuller, James Milner, and the lawyer as social architect, 1950–69

In the 1949–50 academic year, James Milner studied with Lon Fuller at Harvard Law School. There, he was influenced by Fuller’s belief that law schools should aim to produce ‘social architects,’ graduates capable of solving individual and societal problems by wielding a variety of tools derived from diverse legal processes. In the years following his time at Harvard, as a professor at the University of Toronto Faculty of Law from 1950 to 1969, Milner sought to develop and implement the social architect ideal, through his scholarship, teaching, and casebook writing in contract law and land planning, his presidency of the Association of Canadian Law Teachers, and through curricular initiatives within the faculty. Despite Milner’s efforts, his attempts to bring Fuller’s social architect ideas never flourished at the University of Toronto. This article details Milner’s attempts, illuminating him as a key intellectual figure at the University of Toronto Faculty of Law, and reflects on the factors of historical contingency that led to the failure of these ideas to take hold.

Are the Most Influential Websites Peer-Produced or Price-Incentivized? Organizing Value in the Digital Economy

In 2006, Harvard Law School Professor Yochai Benkler proposed a wager to technology and society author Nicholas Carr. Benkler argued that by 2011 the most influential websites would be based on content produced by people engaged in peer production. Carr maintained that the lure of money and the corporate hierarchies will be more effective. So, after 14 years, who has really won the bet? Are the most influential websites peer-produced or price-incentivized? To address these questions, this paper discusses what peer production is in relation to price-incentivized production. The Carr-Benkler wager is used as a lens to examine the current social and political struggles in the digital economy, to unveil the adversary value systems underneath and the respective implications for organization. We conclude with some reflections on the controversies and ambiguities of peer production and a call for critical scholarship to engage in a deeper discussion on value and organization in the digital economy.

Pro-Constitutional Representation and Legislated Rights: Comment on Legislated Rights – Securing Human Rights Through Legislation

Pro-Constitutional Representation and Legislated Rights: Comment on Legislated Rights – Securing Human Rights Through Legislation Vicki C Jackson Vicki C Jackson Thurgood Marshall Professor of Constitutional Law, Harvard Law School, Cambridge, MA, USA. Email: vjackson@law.harvard.edu. Search for other works by this author on: Oxford Academic Google Scholar Jerusalem Review of Legal Studies, Volume 21, Issue 1, June 2020, Pages 77–93, https://doi.org/10.1093/jrls/jlz023 Published: 01 September 2020