Media Mentions

A committee created by the California state legislature to study the state’s penal code and propose improvements in the law has recommended that California repeal its death penalty and expeditiously reduce the size of its death row. At the conclusion of a virtual meeting on May 14, 2021, the California Committee on Revision of the Penal Code (CRPC) unanimously voted to recommend that the state abolish the death penalty. It was the first ever policy vote on the death penalty by the Committee, which was established by an act of the state legislature in 2019...In March 2021 the Committee heard presentations from death-penalty scholars Carol Steiker and Jordan Steiker, siblings who respectively teach at Harvard Law School and University of Texas at Austin School of Law, Elisabeth Semel, the director of UC Berkeley’s Death Penalty Clinic, and UCLA Law professor Sherod Thaxton, among others, on constitutional issues and issues of innocence, costs, racial and geographic bias, and mental health related to capital punishment. It also received submissions from the California District Attorneys Association, the Prosecutors Alliance of California, the California Innocence Coalition, and the Office of the State Public Defender.

Some of the best books of the year so far provide welcome respite from the outside world—while others aim directly for the turbulence, providing frameworks to understand how the past informs our present. Michelle Zauner crafts a devastating tribute to her late mother, circling universal themes of grief. Torrey Peters examines what makes a family in her refreshing debut novel. And Annette Gordon-Reed explores the history behind Juneteenth, offering a comprehensive account of the holiday and its place in our culture. Here, the best books of 2021 so far...On June 19, 1865, in Galveston, Texas, Maj. Gen. Gordon Granger read out a declaration telling the enslaved people in Texas that they were finally emancipated, two long months after Appomattox. Juneteenth was a day long-celebrated by many Black communities in Texas and across America, but only in the past year or two has it become a more widely recognized holiday. In her slim but potent book, Pulitzer Prize- and National Book Award-winning historian and Harvard professor Annette Gordon-Reed explores the story of that day and all the ways that Black and Native people’s lives have been obscured in culture. As a Texas native, Gordon-Reed offers a book that is both profound and personal in its exploration of the ways history shapes our lives and becomes distorted and reinvigorated over time.

The U.S. Justice Department released the first official expenditure report for the special investigation into the origins of the FBI’s Russia inquiry -- providing a rare bit of insight into the secretive review more than two years after it was begun in response to demands by then-President Donald Trump. The inquiry being led by Special Counsel John Durham spent about $1.5 million from Oct. 19 to March 31, according to the report from the Justice Department released Thursday...Durham’s work has now gone on longer than the investigation by Special Counsel Robert Mueller, who took over the original Russia interference probe in May 2017 and concluded it in March 2019. Critics continue to question the value of Durham’s inquiry and whether it should be shut down. “Now that Durham’s probe into the FBI’s Russia probe has lasted longer even than the protracted Mueller investigation, it’s hard not to get an Alice-in-Wonderland sense about whatever bottomless rabbit holes these guys are burrowing into,” constitutional law scholar Laurence Tribe said... “I suppose DOJ should push Durham to provide a status update, but I doubt much would come from such a push as long as the political costs of forcing Durham to wind things up and close up shop exceed the legal benefits of doing so,” Tribe said in an emailed response to questions.

The decision from U.S. District Judge Vince Chhabria of the Northern District of California on Wednesday to reject a proposed $2 billion class action settlement over Roundup didn’t come lightly. Chhabria gave the lawyers nine questions to consider ahead of an approval hearing, which lasted nearly an entire day, during which he grilled them with more questions... “What you’re seeing is that judges are flexing their muscle and showing they’re a part of this process,” said William Rubenstein of Harvard Law School. “This development is a good thing because it demonstrates there’s good oversight in the system and the judges are increasingly keen on using the leverage they have to the benefit of the class members.” ... In both cases, lawyers were dealing with personal injury claims, which traditionally are brought through individual lawsuits. Whether they can be part of a class action remains “questionable,” Rubenstein said. “Starting with the NFL case, you’re seeing lawyers playing around with this,” he said. For judges, those efforts have led to “some of the more creative types of class actions they’re seeing, and particular problems in the structuring of class action settlements.”

An op-ed by Noah Feldman: Attorney General Merrick Garland is contesting a court order that would require disclosure of an internal Department of Justice memo sent to former AG Bill Barr. The subject: Why not to prosecute Donald Trump. Garland’s decision is a Rorschach test for anyone interested in restoring normalcy and credibility to the Department of Justice after the institutional bloodbath of the Trump years. From the standpoint of transparency and openness, the public should see the memo to better understand what went wrong in Trump’s DOJ. But from the standpoint of returning to the department’s traditional norms — including the norm of depoliticizing criminal prosecution decisions — the refusal to disclose is weirdly reassuring. It’s a sign that the Biden Department of Justice will reaffirm the department’s commitment to confidentiality and not use the DOJ, as Trump tried to, to score political points. I realize this second way of seeing the inkblot is counterintuitive and, to some, frustrating. So I’m not going to urge it on you. I’m just going to explain it, even while acknowledging the validity of the first, disclosure-oriented interpretation.

If you caught the recent Oscar-winning film My Octopus Teacher, you’ll likely join octopus enthusiasts in marveling at the incredible intelligence of these complex and curious animals. It may shock you, then, to learn that according to the US federal government, octopuses aren’t considered “animals” when it comes to their treatment in federally funded research...The legal standing seems juxtaposed to the cognitive and behavioral traits of octopuses, which have seen them become increasingly frequent test subjects in federally funded research in recent years, says a release from Harvard Law School... “Under existing law, cephalopods are not required to be provided with ‘the appropriate use of tranquilisers, analgesics, anesthetics, paralytics and euthanasia’ or ‘appropriate pre-surgical and post-surgical veterinary medical and nursing care’,” wrote clinical fellow Kate Barnekow of the Animal Law and Policy Program at Harvard Law School in an email to IFLScience. “This means that cephalopods may be used in studies deemed inhumane to conduct on other animals – or too expensive to conduct on other animals that would legally be required to be provided with appropriate sedatives, pain-relievers, and surgical care.”

On Tuesday, a Superior Court judge refused to block the city of Boston from firing its police commissioner, Dennis White, over decades-old domestic violence allegations. The next day, the same judge also ordered a stay on her own ruling, and on the city's termination process, while White appeals the decision. WBUR's Ally Jarmanning brings us the latest on this still developing story. We also break down the legal arguments with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR Legal Analyst.

The pandemic has changed Sarah Shahatto’s perspective on her career. It has made the third-year law student at the University of California Irvine School of Law question, and reimagine, her future as an attorney...Harvard Law School professor Scott Westfahl says it will take a lot more than pro bono programs to give attorneys a true sense that their work has purpose and meaning. Even before Gen Z attorneys enter the workforce in meaningful numbers, the pandemic has primed their concern, as isolation and burnout take their toll on the legal industry and the world at large. Westfahl has gotten multiple calls in the past few months from former students who are now junior associates, and even partners, who feel as if the pandemic has sapped away any meaning from their work. “I’m getting calls every week from students that graduated years ago that say, ‘I’m burned out’ and are starting to question whether it all matters,” Westfahl says. “For a long time many people found meaning and purpose coming into a beautiful office with their name on the door and being in an office together with really smart and interesting people,” he continues. But that won’t move the needle anymore.

A podcast by Noah Feldman: Palestinian Israeli human rights lawyer Rabea Eghbariah explains why violence erupted in Israel this month and what it might mean for the future of Palestinian Israelis.

An op-ed by Noah Feldman: Florida’s new law punishing social media platforms that ban politicians for violating their terms of service is obviously unconstitutional, violating the companies’ free speech and free association rights. But the law is a good opportunity to think about how the First Amendment applies to for-profit corporations, and suggests reasons to think more deeply about the infamous 2010 Supreme Court decision, Citizens United v. FEC. The key provision of the Florida law states that “a social media platform may not willfully deplatform a candidate for office” — and imposes a $250,000 per day fine for violations. It’s obviously aimed at the deplatforming of former president Donald Trump by Twitter, Facebook and others. (Disclosure: I advise Facebook on free expression issues and helped design the oversight board that recently upheld the Trump deplatforming; the opinions expressed in this column are, as always, altogether mine and not at all Facebook’s.) The law almost certainly violates Section 230 of the Communications Decency Act, which gives platforms a safe harbor against lawsuits for their content moderation decisions. For that reason, a federal court might invalidate the law on statutory grounds without ever ruling on its First Amendment problems.

The "de-platforming" of former President Donald Trump from prominent social media platforms following the January 6, 2021 attack on the United States Capitol raises questions about the power of private corporations to regulate public conversation, and the legal system's power to regulate them, in our wired age. Join the ACS Arizona, Austin, DC, Michigan, Orange County, and Philadelphia Lawyer Chapters as we welcome a panel of prominent experts to discuss the broader implications for free speech. Featuring: Katie Fallow, Senior Staff Attorney, Knight First Amendment Institute at Columbia University; Gautam Hans, Assistant Clinical Professor of Law, Vanderbilt Law School; Colin Stretch, Lecturer in Law, Columbia Law School, and former General Counsel of Facebook, Inc.; Laurence H. Tribe, Carl M. Loeb University Professor, Emeritus, Harvard Law School; Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law. Moderated by: Dan Kaplan, Assistant Federal Public Defender; Member, ACS Phoenix Chapter Board of Directors.

Donald Trump’s lawyers argue the former president has “absolute immunity” from legal charges related to the Capitol invasion, which defense Harvard Law School professor Laurence Tribe calls “a remarkable claim.” Prof. Tribe says Donald Trump answers to the American public, and that “one of the ways you answer to the people is by being held accountable for the damages that you do when you aim an angry mob at members of Congress.”

Harvard Law School faculty send best wishes to the Class of 2021.

An op-ed by Noah Feldman: When a state adopts a flatly unconstitutional anti-abortion law, as Texas did last week, it ordinarily never takes effect. Activists immediately ask a federal court to order state officials not to enforce it, and the court does. What’s unusual — and scary — is that this time, Texas is trying to get around this hurdle through legal trickery. Its efforts are likely to fail, but seeing how and why requires going through a bit of detail. Start with Texas’s goal. The law just enacted makes abortion unlawful after a fetal heartbeat can be detected. Because that can happen as early as six weeks of pregnancy, the law effectively outlaws abortion — a direct violation of the constitutional right to choose established in Roe v. Wade. The Supreme Court has agreed to consider a case out of Mississippi in which it might overturn part of Roe. But until that happens, Roe is the law, and the Texas statute is certainly unconstitutional. Texas knows its law violates the Constitution. And it knows the federal courts would ordinarily block it from taking effect. So the legislature devised a trick. Instead of seeking a criminal ban, enforced by the state’s prosecutors, it made abortion a civil violation for which physicians, clinics and anyone else abetting abortion could be sued for monetary damages. Then, the Texas law authorized any private citizen, even someone with no connection to the abortion in question, to bring the civil lawsuit and keep the damages.

A Suffolk Superior Court judge on Tuesday rejected Boston Police Commissioner Dennis White’s attempt to block his firing, a decision that clears the way for Acting Mayor Kim Janey to resume her effort to dismiss White following decades-old domestic violence allegations. Judge Heidi Brieger denied White’s motion for a preliminary injunction, in a ruling that had been anxiously awaited by City Hall and by White since a hearing on Thursday...Beyond his lawsuit, White has limited legal options, said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School. “The ruling today is essentially a prediction by Judge Brieger that he’s not likely to succeed,” she said, noting that the law is also ambiguous about the kind of hearing White could expect before he is removed. Janey “offered a hearing, but he’s saying that’s not enough,” she said. “What he’s really saying is, I want a forum where I can defend myself.” White could also use his suit as leverage for a settlement with the city, Gertner acknowledged. In the interim, Janey could also move forward with another commissioner, though her legal standing to do so might be in question, she added.

Massachusetts is less than a week away from lifting its remaining COVID-19 businesses restrictions. But even as companies emerge from more than a year of immense losses and pandemic-induced rules, leaders in the local Black business community aren’t looking forward to a return to normal...So, the Black Economic Council of Massachusetts, or BECMA, unveiled a policy agenda last week for a post-pandemic “new normal” in the hopes of ensuring communities of color not only bounce back but also close those existing racial gaps...Without having to maximize profits for shareholders, advocates say the government-run institution could help meet a currently unfulfilled need for capital estimated to be hundreds of millions of dollars in Massachusetts. “The commonwealth really is leaving money on the table,” said Christine Desan, a professor at Harvard Law School...Going forward, Desan says the bank could also help generate revenue in addition to the return on loan interest rates. “What’s fascinating about a public bank is, if you can actually spark and support economic development in a city, the returns are not just the returns on their own bit they’re also returns — because the communities begin to prosper — of more tax revenue,” she said.

Harvard Law School today announced plans to make its online, pre-term course for incoming law students, Zero-L, available to other U.S. law schools for free again for a second year as law schools emerge from the pandemic. Beginning in the summer of 2022, HLS will return to its pre-pandemic plan to offer Zero-L as an educational tool that other law schools can purchase for a reasonable fee to share with their students... “We created Zero-L several years ago to help incoming Harvard Law students from all backgrounds gain a common baseline of knowledge as they begin their law school careers,” said Harvard Law School Dean John F. Manning ’85. “As the first in my family to graduate from college and the first to go to law school, I often had the feeling that everyone around me just got law school as soon as they walked through the door, and that I didn’t. Zero-L aims to help all new students feel prepared to succeed on day one.” Zero-L’s faculty director, Professor I. Glenn Cohen ’03, recalled his experience as a new law student similarly. “Like many law students, I found the first few months of law school daunting,” Cohen explained last May. “We built this program to substitute a ‘smooth on-ramp’ for the ‘steep climb’ I and many others encountered upon starting law school.”

Lisa Dealy, who as assistant dean for the Harvard Law School Clinical and Pro Bono Programs for 15 years was instrumental in the transformational growth and reimagination of clinical education at HLS, will retire May 27 after 30 years at the law school. When Dealy assumed leadership of the clinical and pro programs in 2005, HLS offered a handful of in-house and externship clinics and five Student Practice Organizations (SPOs). As a result of her commitment to clinical education, HLS today has 22 in-house clinics, 14 externship clinics, and 11 SPOs, providing students with a vast array of choices for obtaining practical experience and working in the public interest on vital and leading-edge legal issues. “Lisa Dealy has been a tremendous leader, a dedicated colleague, a compassionate and wise mentor to many students, and a wonderful friend to so many,” said HLS Dean John F. Manning ’85. “Throughout her years at HLS, she has exemplified the spirit of public service, and she has made a lasting impact here at HLS and well beyond our campus.”

Support for Black Lives Matter erupted after the murder of George Floyd by former police officer Derek Chauvin. But activists say many posts targeting Black Lives Matter are full of disinformation. Featuring Tomiko Brown-Nagin.

An op-ed by Henry Farrell and Bruce Schneier: This month, the New York state attorney general issued a report on a scheme by “U.S. Companies and Partisans [to] Hack Democracy.” This wasn’t another attempt by Republicans to make it harder for Black people and urban residents to vote. It was a concerted attack on another core element of U.S. democracy — the ability of citizens to express their voice to their political representatives. And it was carried out by generating millions of fake comments and fake emails purporting to come from real citizens. This attack was detected because it was relatively crude. But artificial intelligence technologies are making it possible to generate genuine-seeming comments at scale, drowning out the voices of real citizens in a tidal wave of fake ones. As political scientists like Paul Pierson have pointed out, what happens between elections is important to democracy. Politicians shape policies and they make laws. And citizens can approve or condemn what politicians are doing, through contacting their representatives or commenting on proposed rules.

Scholars reflect on the somewhat surprising appeal of the popular, award-winning documentary.