Media Mentions

A column by Noah Feldman: Chief Justice John Roberts is searching for a compromise to preserve some basic right to abortion while moving it earlier in pregnancy, perhaps as early as 15 weeks. But based on today’s oral argument, it seems unlikely that any of the other justices is interested. Justice Brett Kavanaugh, in particular, seemed to telegraph a willingness to overturn Roe v. Wade altogether.

It was supposed to be the beginning of a new era for Black farmers. After the 2020 election, the Biden administration and a new Democratic majority in Congress promised to rectify the results of years of discrimination and systemic racism, and incoming Secretary of Agriculture Tom Vilsack and House Agriculture Committee Chair David Scott identified justice for Black farmers as a top priority. But their biggest push to correct historic wrongs—$4 billion in direct debt relief payments authorized in the American Rescue Plan—was stymied by lawsuits from white farmers before any checks were cut. ... On November 19, the House narrowly passed the Build Back Better Act, but it is unclear whether Democratic lawmakers will get it through the Senate and how it might be reshaped in the process. If it does make it to the president’s desk, said Dania Davy, director of land retention and advocacy at the Federation, she’s concerned that the new debt relief program will replace—instead of supplement—the more targeted help for Black farmers. ... During a discussion on debt cancellation hosted by the Food Law and Policy Clinic at Harvard Law School this week, multiple panelists echoed that point. “You can’t effectively address racial discrimination without using racial language,” said Keisha Stokes-Hough, a senior supervising attorney at the Southern Poverty Law Center. But as a result of the lawsuits, advocates have no choice but to try.

What do the results of these three different cases say about the American criminal justice system and the country's so-called “racial reckoning”? Ron Sullivan, Harvard Law professor and director of the Criminal Justice Institute at Harvard and Renée Graham, Boston Globe columnist and associate editor, joined Jim Braude on Greater Boston to discuss.

Mississippi on Wednesday is challenging Roe v. Wade, the law of the land for nearly 50 years. Nine Supreme Court justices will hear arguments on whether to preserve or undo abortion rights, but, experts say, Americans should pay close attention to two members of the court: Justices Brett Kavanaugh and Amy Coney Barrett. Legal scholars anticipate that either one of them could have an outsize impact in the case of Dobbs v. Jackson Women's Health Organization and determine the fate of reproductive rights in the United States. ... "It's very clear where Justice Kagan, Justice Sotomayor, and Justice Breyer are," I. Glenn Cohen, a professor at Harvard Law School, told Insider. "They are going to vote to strike down the Mississippi law as unconstitutional … They don't want to reverse Roe v. Wade. This has been consistent in their jurisprudence." ... "Justice Thomas and Justice Alito are pretty clear from their prior votes that they are on the side of thinking that the right to abortion in the Constitution is wrong. It doesn't exist," Cohen said. "So their votes are pretty set."

Vice President Kamala Harris cast the tie-breaking vote in October to confirm Catherine Lhamon to lead the Department of Education's Office for Civil Rights (OCR). When Lhamon held the same position under the Obama administration, her office enforced Title IX—the federal statute prohibiting sex-based discrimination in education—in a manner that endangered fundamental free speech and due process rights. ... Last year, the Department of Education enacted new, balanced regulations that protect the rights of all students, consistent with many judicial rulings. ... Prominent feminist legal scholars, including Harvard Law professors Jeannie Suk Gersen and Janet Halley, as well as the University of San Francisco Law School's Lara Bazelon, heralded the regulations for their overall fairness and for rectifying injustices in OCR's prior policies.

On Juneteenth By Annette Gordon-Reed. This book weaves together history and memoir into a short volume that is insightful, touching and courageous. Exploring the racial and social complexities of Texas, her home state, Gordon-Reed asks readers to step back from the current heated debates and take a more nuanced look at history and the surprises it can offer. Such a perspective comes easy to her because she was a part of history — the first Black child to integrate her East Texas school. On several occasions, she found herself shunned by whites and Blacks alike, learning at an early age that breaking the color line can be threatening to both races.

An op-ed by Charles Fried: In 1989 I argued before the U.S. Supreme Court in Webster v. Reproductive Health Services, a case challenging a Missouri statute that forbade the use of any state funds or facilities for the conducting of abortions. On behalf of the United States I argued that Roe should be overruled, except in extreme cases such as when the life or health of the pregnant woman was at risk. I made these points in good conscience, drawing on a mix of history, precedent and what I saw as the interests of the rule of law. I was a law clerk to Justice John Marshall Harlan II in 1961 when he dissented in Poe v. Ullman, a case involving the liberty of married couples to use contraceptives without interference or inquiry by the government, and provided what I then considered — and still do — the foundation of the law of privacy and personal dignity.

Twitter Inc. on Monday became the latest Silicon Valley titan to appoint an Indian-born chief executive officer, joining the likes of Microsoft and Google in recognizing the Asian country as one of the world’s richest pools of tech talent. ...“Being an Indian is a big advantage now, people expect us to be good engineers and good managers,” said Vivek Wadhwa, a Distinguished Fellow at Harvard Law School and the author of a book profiling Nadella’s rise at Microsoft. “From what I know, Parag Agrawal shares Satya’s values and has a similar management style.”

Last Tuesday, a pharmaceutical company traded on the New York Stock Exchange announced a grant to Manhattan’s prestigious Lenox Hill Hospital to launch a new psychotherapy treatment clinic focused on serving marginalized and underserved communities. ... Apart from FDA-approved medications, which present the prospect of a multibillion-dollar industry by the end of the this decade, Oregon is poised to become the first state to open recreational markets in 2022 for mushrooms containing psilocybin. “People are starting to figure out what they need to do to go to Oregon and set up shop,” said Mason Marks, an attorney with Harris Bricken in Portland who also leads the Project on Psychedelics Law and Regulation at Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.

Happy the elephant will get her day in court, and potentially open the door for other animals to follow, with the help of high-profile advocates who contend the lumbering zoo resident deserves a fundamental legal right. In a potentially groundbreaking case, famed Harvard Law School professor Laurence Tribe has joined philosophers, theologians and a menagerie of others in arguing that Happy is a “legal person” with the corresponding right to seek freedom from what Tribe calls “her imprisonment” by the Bronx Zoo. “Now fifty years old, Happy remains in solitary confinement, unable to lead a physically, intellectually, emotionally and socially complex life despite her capacity to do so,” Tribe and several other prominent law professors wrote in a legal brief filed late last month. Tribe’s amicus brief is the latest of many to be filed with the New York state Court of Appeals, which sometime next year will hear the Nonhuman Rights Project argue that Happy, just like a person, enjoys habeas corpus protections (Greenwire, Dec. 18, 2020).

The U.S. Supreme Court should reverse an Eighth Circuit decision finding that a law firm's day-late levy challenge was barred by a tax code deadline, tax clinics and professors told the justices Monday, arguing the finding contravenes congressional intent. ... In its brief, the Tax Clinic at the Legal Services Center of Harvard Law School rejected arguments from the government saying the deadline under Section 6330 is not subject to equitable tolling, or time extensions in certain circumstances. ... T. Keith Fogg, who filed the brief for Harvard's tax clinic, told Law360 on Monday that equitable tolling is an "issue that particularly impacts low income taxpayers who must navigate the filing rules without legal assistance."

Inspired by family, Samantha Maltais, the first Wampanoag to attend Harvard Law School, plans a future focused on Indigenous rights and environmental justice.

Ketanji Brown Jackson, seen by Democrats as a top contender for a future Supreme Court vacancy, is one of three judges assigned the weighty task of reviewing former President Trump's bid to block a congressional subpoena for records related to the Jan. 6 attack. ... Still, if Jackson votes against Trump in the pending case, they said, it’s a near certainty that Republicans would use it against her if she is eventually tapped for the high court. “The chance is 100 percent that Republicans will use her vote against her,” said Mark Tushnet, a law professor at Harvard. “The only interesting question is how they would spin a vote for Trump against her — probably to say that it shows that she casts her votes with an eye to how it's going to benefit her.”

Adira Levine ’22, a third-year Harvard Law School student, was recently recognized by the American Bar Association’s Section of Administrative Law and Regulatory Practice for her essay on the intersection of the Freedom of Information Act (FOIA) and environmental law. Levine’s paper, “FOIA Disclosure and the Supreme Court,” received the 2021 Gellhorn-Sargentich Law Student Essay Award, which was announced at the organization’s Administrative Law Conference on November 18. “It was such an honor to receive this award, and to be asked to speak about my work with the section’s audience,” said Levine, who delivered remarks on her work and its findings at the conference. “I was inspired to write the paper during a spring 2021 seminar with Professor Richard Lazarus ’79, called Environmental Law and the Supreme Court. I was particularly interested in writing on a topic related to administrative law, and found the recent FOIA cases to be a perfect opportunity.”

The Department of Justice announced this week that it would crack down on airline passengers who throw tantrums. Now, if Attorney General Merrick Garland would only get around to doing something about people who plot the overthrow of our government and a former president who’s serially obstructed justice and abused power we might be getting someplace. ... Revered legal scholar, Laurence Tribe, who taught Garland when the attorney general was a student at Harvard Law School, suggests we give his former student a little more time, but not an unlimited amount. He hears the clock ticking too. Tribe told me, “If Merrick Garland hadn’t authorized the Bannon indictment when he did, I’d certainly have gotten mad long since. At least with respect to someone like me, he bought a few weeks with that indictment—but not a few months.” “All things considered,” he continued, “I’ll be both disappointed and angry if we find ourselves going into January 2022 without strong evidence—in a town that leaks like a sieve—that DOJ is moving full speed ahead on holding Trump and his enablers, facilitators, funders and co-conspirators criminally accountable for the coup d’état they tried to pull off and the violent insurrection they mounted against the Capitol to delay, obstruct and, if possible, subvert the solemn electoral proceeding there underway.”

When state legislators passed a criminal justice reform bill in 2018, Massachusetts residents won the ability to clear away certain criminal records — including convictions for marijuana possession and other now-legal activities — that can make it difficult to land a job, rent an apartment, and otherwise move on with life. ... “Our expungement statute has been an utter failure,” said Katy Naples-Mitchell, an attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice who specializes in criminal justice policies. “We could be helping people on a much grander scale, but instead we’re seeing this paltry, piecemeal effort — and even that has been almost totally frustrated, in part by a bench that is often a lot less progressive than the legislation it’s charged with carrying out.”

... Yet this game plan is still rare: Reichheld cites a recent Bain & Company survey: “Only 10% of business leaders believe that the primary purpose of their firm is to maximize value for customers. Many companies still operate in the old-school financial capitalist mindset in which maximizing shareholder value is front and center.” ...According to studies made by Harvard Law Professor Lucian Bebchuk and his colleagues, there is no evidence that the firms in question have made any change in their actions since the 2019 declaration. Bebchuk concludes that the 2019 BRT declaration was “only for show.” In effect, we are dealing with a smokescreen: the goal of many major corporations has become undiscussable.

...A six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests. ... But even the more patient justices — Roberts, sometimes Kavanaugh, and, at least judging from her first year, Barrett — are no moderates. All three, for instance, joined a particularly radical Alito opinion last term that neutered the remaining major enforcement mechanism in the Voting Rights Act of 1965. “I dislike the fact that journalists refer to the six as conservative,” said Harvard Law School professor Charles Fried, who served as solicitor general under Reagan. “They’re not. They’re reactionaries. That’s the only correct term for them.”

Aircraft pioneers Wilbur and Orville Wright had to resort to a coin toss to decide who would attempt the first powered flight, but almost all modern aviation relies on at least two pilots in the cockpit. That could soon change, as airlines and planemakers develop new technology that would rely to a greater extent on automation and eliminate the need for a co-pilot. ... Whether passengers will be willing to use a single-pilot plane depends largely on cost, according to Ashley Nunes, a research fellow at Harvard Law School.“For the average consumer, cash is king. If the price is low enough, you’re going to catch that flight,” he said. “The saga with the Boeing 737 MAX is a great example of this; in the aftermath of that particular event, large groups of consumers said, ‘We’re not going to fly that plane.’ And guess what? They’re flying it today.” But reducing the number of pilots on board may not in fact drive down airlines' costs and allow them to offer cheaper flights, Nunes warned: “There are numerous industries where you remove the human, your costs actually increase because of the amount of safety oversight that is required for the technology."

Op-ed by Terri Gerstein, Director, State and Local Enforcement Project: One of the most interesting union campaigns in recent years is happening right now in Buffalo, New York. Workers in three Starbucks outlets started a union organizing effort over their concerns about seniority pay, scheduling, staffing levels, and safety and health during COVID (plus, at one store an infestation of bees was left festering for months). Earlier this month, the National Labor Relations Board mailed ballots to the workers in these stores, who will have four weeks to vote on whether to unionize with Workers United, an affiliate of the Service Employees International Union. If they do, these stores would be the first unionized locations among the ubiquitous chain’s thousands of U.S. locations.

Incoming mayor Eric Adams sought to distance himself Monday from a Brooklyn for-profit college president who was recently reinstated despite allegations of serial sexual misconduct as Gov. Hochul vowed an investigation into the “deeply disturbing situation.” An Adams spokesman promised to look into returning $4,000 in campaign contributions from ASA College president Alex Shchegol and his wife following a Daily News expose. At least 10 women have accused Shchegol of sexual misconduct... The News reported exclusively Saturday that Shchegol — forced out by the college’s board in 2018 when the misconduct allegations surfaced — is back in charge after using his power as owner to fire board members who opposed his reinstatement. ... Higher education experts warned that accreditors often move slowly and don’t have law enforcement power to compel colleges to produce or preserve documents. “Accreditors are notorious for never cutting anyone off,” said Eileen Connor, the director of the Predatory Lending Project at Harvard Law School.