Media Mentions

Chris Lambert, a small business owner in Indiana, says he has encouraged his eight employees to get vaccinated against COVID-19. But for a variety of reasons – including the fact that 90% of them are already inoculated – he has not taken the step that so many in his position are grappling with across the country. ... Only 3.3% of small businesses in Indiana required employees to have proof of COVID-19 vaccination before physically coming to work over a recent weeklong stretch – the smallest percentage among the more than 30 states that reported data, according to a report released on Thursday by the U.S. Census Bureau’s Small Business Pulse Survey. Nationwide, only about 13% of such businesses require workers to show proof of inoculation, according to the census statistics, which were collected between Dec. 6 to 12. ... States in the Northeast and on the West Coast are more likely to see small businesses mandate employee vaccination, while Southern and Midwestern states are less likely, according to the bureau. ... The regional trend doesn’t surprise Carmel Shachar, executive director of Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. The differences follow the same pattern seen with other pandemic public health measures, she says, in which states where there are fewer mask requirements or lower vaccination rates are also the ones “that are being really supportive of employee pushback against vaccine mandates.” She adds: “I think the politicization of public health has a lot to do with it. But then I think some of it also goes to different areas of our country have different traditions and different cultural assumptions when it comes to balancing public health, individual liberties, respect for scientific expertise.”

An op-ed by Tomiko Brown-Nagin: In 2021, I was struck—again—by the role of images in advancing justice. Among the most potent examples were the videos of the murders of George Floyd and Ahmaud Arbery. Images have long been catalysts of change in the struggle for equal justice under law and civil rights in the US, a focus of my scholarship. Photographs of police violence against peaceful demonstrators in Birmingham “sickened” President John F. Kennedy and pricked the conscience of Whites who had ignored the horror of segregation, leading to the Civil Rights Act of 1964. When protesters marched across the Edmund Pettus Bridge in Selma and were attacked by law enforcement officers, footage of what came to be known as “Bloody Sunday” helped turn the tide in the struggle to pass the Voting Rights Act of 1965.

With just over a week left until Michigan's redistricting commission votes to adopt new voting districts for the next decade, the state’s civil rights department says the commission's maps violate federal voting rights requirements. ... An analysis by the department argues the commission's proposed congressional maps don't comply with the Voting Rights Act — the federal law that prohibits voting districts that deny minority voters an opportunity to elect their preferred candidates — because they eliminate majority-minority districts, where nonwhite voters make up more than 50% of the district. It found that the commission must draw majority-minority districts in Detroit, Flint, Hamtramck, Inkster, Pontiac, Redford, Saginaw, Southfield and Taylor. Nicholas Stephanopoulos, a Harvard Law School professor who specializes in election law, called the department's work "laughably bad analysis," in an email to the Free Press. The Voting Rights Act doesn't require majority-minority districts, Stephanopoulos said. "Rather, it sometimes requires minority opportunity districts to be drawn — that is, districts where minority voters are able to elect their candidates of choice. In a state like Michigan, with a reasonable volume of white Democrats willing to support minority-preferred candidates, the threshold for an opportunity district is certainly below 50%."

The New Jersey Supreme Court has granted requests from 10 organizations to file legal briefs or make oral arguments when it hears the parole case of Sundiata Acoli, who’s been imprisoned for 48 years for the killing of a state trooper. ... Katharine Naples-Mitchell, a lawyer for Acoli who worked on the brief for the police groups, said the case is important for Acoli, but also New Jersey, which has made strides in criminal justice reforms in eliminating the cash bail system, and now needs to act on parole, to cure wrongs, “on the back end.” She wrote in the brief that the Parole Board’s latest examination of Acoli’s case is not based on law and procedure, but their, “deep-seated discomfort with Mr. Acoli’s political affiliations and beliefs, anger and frustration at his unwillingness to accede to the facts of the crime as found by the jury which he has always maintained he does not remember, and concern that he has not been sufficiently punished even after all these years.”

The power of eye-opening images, by Tomiko Brown-Nagin: In 2021, I was struck—again—by the role of images in advancing justice. Among the most potent examples were the videos of the murders of George Floyd and Ahmaud Arbery. Images have long been catalysts of change in the struggle for equal justice under law and civil rights in the US, a focus of my scholarship. Photographs of police violence against peaceful demonstrators in Birmingham “sickened” President John F. Kennedy and pricked the conscience of Whites who had ignored the horror of segregation, leading to the Civil Rights Act of 1964. When protesters marched across the Edmund Pettus Bridge in Selma and were attacked by law enforcement officers, footage of what came to be known as “Bloody Sunday” helped turn the tide in the struggle to pass the Voting Rights Act of 1965. In recent years, ordinary people with cell phones have borne witness to racial violence and shared their footage on social media, making injustice more visible.

Last week, Kellogg’s workers rejected a contract offer from management that could have ended a two-month strike at four cereal plants. Their decision to stay on the picket lines for a better deal elicited an ugly threat from Kellogg’s: to permanently replace the strikers with other workers. ... It’s routine for companies to bring in replacement workers — “scabs,” in union parlance — to try to maintain production during a strike. But can the company just get rid of the striking workers for good? ... “The bite of the permanent replacement doctrine is the employer has no obligation to discharge the replacement workers when the strike is over to make room for returning strikers,” said Benjamin Sachs, a labor law professor at Harvard Law School. “That means if the replacement never leaves, you can never get your job back.”

The Supreme Court is ending the year starkly split on abortion, with the five conservatives showing all signs they will overturn Roe vs. Wade and let state lawmakers decide whether women may legally end a pregnancy. ... Roberts is no liberal and has repeatedly voted against abortion rights in the past. However, as chief justice, he has often tried to steer the court on a middle path to avoid sharp and divisive rulings. But he is no longer in control. "Now the five on his right can just abandon him," said Harvard Law School Professor Richard Lazarus, an environmental law expert who has been a friend of Roberts for more than 40 years. Instead, he said, control rests in the hands of Justices Clarence Thomas and Samuel A. Alito Jr., conservative veterans who have long been determined to reverse the abortion rulings. "We may be seeing the early signs of a disintegration within the court itself," Lazarus added.

The Conroe school district voted to name a new elementary school after native daughter Annette Gordon-Reed, the Harvard historian and author of the Pulitzer Prize–winning The Hemingses of Monticello.

A column by Lawrence Lessig: The State Department is hosting a democracy summit this week. Representatives from around the world will assemble, virtually, “to set forth an affirmative agenda for democratic renewal.” For the United States, the state.gov webpage declares, “the summit will offer an opportunity to listen, learn, and engage with a diverse range of” democratic actors. America will also, the page continues, in what is certainly the money quote of the whole conference, “showcase one of democracy’s unique strengths: the ability to acknowledge its imperfections and confront them openly and transparently, so that we may, as the United States Constitution puts it, ‘form a more perfect union.’” I’m not certain who precisely is going to be showcasing our own “imperfections.” The agenda online is incomplete. But it is right that we “confront” these “imperfections” “openly and transparently.” Because what’s most striking about America’s understanding of our own democracy is our ability to see what’s just not there. We are not a model for the world to copy. The United States is instead a failed democratic state. At every level, the institutions that the US has evolved for implementing our democracy betray the basic commitment of a representative democracy: that it be, at its core, fair and majoritarian. Instead, that commitment is now corrupted in America. And every aspiring democracy around the world should understand the specifics of that corruption—if only to avoid the same in its own land.

The widening revenue gap between a handful of legal titans that pull in billions each year and other law firms will only continue to grow, experts say, resulting in a market consolidation that will likely give them a competitive advantage even over their BigLaw peers. The 10 law firms with the highest gross revenue accounted for nearly 29% of the total $98.7 billion in revenue posted by the 129 firms that supplied or confirmed revenue data for Law360 Pulse's Prestige Leaders report. ... Firms that grow rapidly may not necessarily stay profitable or boost revenue if they acquire various assets that have different levels of profitability. "Just ask our old friends at Dewey & LeBoeuf," said David Wilkins, faculty director of the Center on the Legal Profession and the Center for Lawyers and the Professional Services Industry at Harvard Law School. ... "There are a lot of firms who embarked on an incredible acquisition spree to grow themselves and have grown themselves into unprofitability or failure because of it," Wilkins said.

Two years ago, Air Force Technical Sergeant Charles Cornacchio lost nearly everything he owned when a Billerica storage company auctioned his belongings to the highest bidder while he was deployed to the Middle East. Now, US Representative Seth Moulton, a Salem Democrat and combat veteran, is calling for tougher penalties, including lengthy prison terms for repeat offenders, against companies that illegally sell the possessions of military members on active duty. ... Jack Regan, a senior fellow at Harvard Law School’s Veterans Legal Clinic who represents Cornacchio, said the law provides important protections for military members so they don’t have to worry about economic issues at home while on active duty. It protects military members on active duty — and up to 90 days after their service ends — from foreclosures, evictions, car repossessions, credit card cancellations, and action related to student loan debt. “I think that the purpose of this statute is to protect vulnerable people, namely servicemembers who are deployed and their families from the enforcement of liens that can lead to a loss of property and in a case like Charlie’s a permanent loss of property,” Regan said.

Tomiko Brown-Nagin is a legal historian of what she calls “one of the most celebrated social movements of all time—the black freedom struggle.” Two photographs sit on a bookcase behind her desk at Greenleaf House, the residence of the Harvard Radcliffe Institute’s dean—her role since 2018. One shows her with Justice Sonia Sotomayor, the other with Congressman John R. Lewis, LL.D. ’12. They are proxies for contrasting ways she thinks about the American civil-rights movement. Sotomayor, the first woman of color on the Supreme Court, connects to work Brown-Nagin has done about the movement from the top down, shaped by federal courts, as in her new book on Federal District Judge Constance Baker Motley, called Civil Rights Queen. Lewis, on the other hand, connects to her 2011 book Courage to Dissent about the movement from the bottom up. He was among the early Freedom Riders who challenged Jim Crow laws and headed the bloody march in Alabama from Selma to Montgomery, which led to passage of the 1965 Voting Rights Act. The photos were visible recently as Brown-Nagin took part in a Radcliffe online event as chair of the initiative President Lawrence S. Bacow created on Harvard and the legacy of slavery. The effort is necessary, she said, “to understand and address the enduring legacy of slavery within our university.” The discussion touched on delicate issues, which the report on legacies of slavery, expected this winter, is likely to address: bequests of land, buildings, and money connected with slavery, as well as members of the Harvard community who were embroiled in the system of slavery. “As I’ve said many times,” she went on, “we can’t dismantle what we don’t understand, and we can’t understand contemporary inequity and injustice unless we reckon honestly with our history.”

U.S. District Judge Dabney L. Friedrich ruled last week that an effort to interrupt the counting of the electoral votes can be a crime — even if no violence was contemplated. ... “This December 10 Friedrich opinion does indeed seem important to me,” constitutional legal scholar Laurence Tribe tells me. Whether it is an obstruction charge — or a charge of sedition or conspiracy to commit sedition (under either sections 2383 or 2384 of Title 18 of the U.S. Code) — Tribe observes that the principal obstacle to prosecution has been “the argument that the electoral count certification in the Joint Session of Congress is too ministerial to count as an official proceeding.” However, Tribe concludes, “This federal court opinion undercuts that line of argument.”

A column by Noah Feldman: If you can’t beat ’em, join ’em. That’s the spirit of the law proposed by California Governor Gavin Newsom to empower private citizens to sue anyone who makes or sells assault rifles in the state. The law violates the Second Amendment as interpreted by a federal district court in California. The idea is to circumvent the constitutional ban for a time — just as the Texas legislature has circumvented Roe v. Wade by empowering private citizens to sue abortion providers. Now that the Supreme Court has limited the abortion providers’ ability to get the Texas law frozen in protection of their constitutional rights, Newsom wants to send the message that what is sauce for the conservative goose is also sauce for the liberal gander. Beyond the legal detail, which I’ll explain in a moment, is a serious, deep question: Should liberals stoop to the level of conservatives in circumventing federal courts’ authority? Is this one of those situations where when one side is playing hardball, it’s foolish to bring a whiffle bat? Or is the Constitution in this instance an arena of principle, in which meeting constitutional disrespect with more constitutional disrespect will only erode the rule of law?

Abortions aren't necessary because women can always give their babies up for adoption. That was the argument Justice Amy Coney Barrett appeared to be making during oral arguments in Dobbs v. Jackson Women's Health Organization earlier this month. ... Experts and researchers told Newsweek that Barrett's argument ignores the burden of forcing a woman to carry a pregnancy to term, and minimizes the impact that placing a baby up for adoption can have on birth parents as well as the children involved. ... Elizabeth Bartholet, a professor at Harvard Law School, agreed that Barrett's remarks are "ignorant and misleading about the reality of the abortion decision." However, she noted that safe haven laws are "infinitely better than having such women feel pressured into abandonment of the baby in unsafe ways or, worst case, murdering the baby." But she pointed to disadvantages that include leaving a child "without any ability later in life to know who its forebears were."

Joe Biden’s Commission on the Supreme Court voted on the final version of its report last week. ... Almost no one thinks that the Constitution forbids adding justices, but the draft sounded notes of grave caution all the same. “The risks of court expansion are considerable,” it emphasized. One of the commissioners, the Harvard professor Andrew Crespo, worried that arguments in favor of expanding the Court had been “teed up to be knocked down.” In effect, he remarked, the report sent “a message that the underlying problem … is neither urgent nor serious, if it even exists.” Joined by another commissioner, the NAACP lawyer Sherrilyn Ifill, Crespo’s minor rebellion was the only part of the October meeting to draw serious coverage—forcing the commission back to the drawing board. This was not the first time the commission had accidentally generated the reform energy it was supposed to contain. Back in June, the group convened publicly to discuss for the first time the merits of various reform proposals. And although the interminable meeting seemed intended to sap the will of reform advocates, the testimony that received the most attention by far was that of the Harvard professor Nikolas Bowie, which went viral on Twitter and was given pride of place in both national reporting and op-eds calling for a more democratic law. Building on earlier calls to “disempower” the Supreme Court, Bowie’s testimony helped many progressives see that the threat posed by that institution goes beyond the reactionary attitudes of individual justices, and includes the undemocratic power the justices wield, regardless of ideological leaning.

An op-ed by Dennis Aftergut and Laurence Tribe: The Supreme Court hath given a sliver and taken away the pie. Its ruling last week in Whole Woman’s Health v. Jackson is a wipeout for reproductive freedom, deliberately disguised as a partial victory. The Court looks decreasingly like a true judicial body and increasingly like a wolf cagily donning sheep’s clothing to prey upon constitutional rights. At issue was Texas’ “bounty hunter” anti-abortion law, the most restrictive in the nation. It makes abortions illegal in the state after a fetal heartbeat is detected, usually around six weeks and long before viability. Texas used the sly trick of leaving enforcement to private vigilantes, rewarding them with limitless bounties starting at $10,000 for successfully suing anyone helping a woman who chooses to end her pregnancy more than six weeks after her last period. The acknowledged purpose of that ruse was to evade federal court review on the false premise that only private individuals were enforcing SB 8, not the state.

Only one president, before the current one, won a national election only to see a large proportion of the country outright refuse to participate in our democracy rather than accept the result. That president was, of course, Abraham Lincoln. He concluded that those who conspired in an illegal plan to undo the American experiment in democracy had to be permanently banished from politics. It is a lesson Lincoln's successors forgot, and arguably one that should be studied carefully today. ...With Lincoln's approval, Congress addressed this question directly. "The laws enacted by Congress to prevent former Confederate leaders from acquiring power after the Civil War provide an object lesson for our time," Harvard law professor Laurence Tribe wrote Salon by email. They have been enshrined in law as precedent for stopping those who would commit violence against a democratic government. Of the resulting statutes, Tribe identified this one as the "most pertinent": Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Roe v. Wade has had a rough two weeks at the Supreme Court. On Dec. 1, at arguments over its fate in a case from Mississippi, the five most conservative justices showed no interest in doing anything short of overruling it. ... If the court overrules Roe, an increasingly real possibility, it will have to explain why it is departing from the principle of stare decisis, which is legal Latin for “to stand by things decided.” ... Shifting the analysis from the words of the opinion to the advocacy that gave rise to it is a recent development and yet another way to undermine precedents. Richard J. Lazarus, a law professor at Harvard, explored this mode of argument in a recent article in The Supreme Court Review called “Advocacy History in the Supreme Court.” The article makes the sensible point that a full understanding of a Supreme Court decision requires consideration of how the parties had framed the case.

Critics of Maryland’s newly redrawn congressional maps promised to once again file lawsuits to block the reconfigured electoral districts, which Republicans blasted as a blatant partisan power grab by Democrats. But fighting partisan gerrymandering in the courts now appears even more difficult than a decade ago, when opponents fought a losing battle against Maryland’s last redistricting plan. ... “With a Democratic legislature that has a veto-proof majority, they could easily fix any (Voting Rights Act) problem or any racial gerrymandering problem without drawing additional Republican districts,” said Nicholas Stephanopoulos, a Harvard Law School professor who’s been involved in lawsuits over partisan gerrymandering. “If Republicans sue, all you can really manage is to potentially reshuffle the districts racially but without affecting their partisan breakdown.”

It's been eight months since President Biden established a commission to study proposals to reform the U.S. Supreme Court. ... That commission delivered its report to the president this past week. And while it studied a long list of potential reforms, like increasing the number of justices and imposing term limits, it did not make any recommendations to the president. Given so much at stake as the Supreme Court is set to decide on major issues like abortion rights, we wanted to talk about what comes next, so we called two members of the commission. Laurence Tribe is professor emeritus at Harvard Law School, where he teaches constitutional law. And Judge Thomas Griffith is a former federal judge on the U.S. Court of Appeals for the D.C. Circuit.