Media Mentions

An article by Bailey Kennedy ’22: The Southern Poverty Law Center (SPLC) has announced its intention to file suit against a Georgia school district under the Americans with Disabilities Act (ADA) of 1990, on the basis of the district's decision not to require certain COVID-19 precautions. The SPLC argues that children with certain disabilities, who are especially vulnerable to the virus, might not be able to safely access an education in an environment where masking is optional. Therefore, even if most children are at little risk of serious harm from COVID-19, it argues that in order to ensure all children have the ability to attend school, schools must take every available precaution.

An article by Jill Lepore: When Deidre Barnes was a kid in North Carolina, horsing around in the back seat of the car with her little brother, her grandfather drove by the woods in a white neighborhood in Durham. “You got cousins up in there,” he called back from the driver’s seat, nodding at a stand of loblolly pines in a tangle of kudzu. Barnes and her brother exchanged wide-eyed glances: they had cousins who were wild people? Only later, looking hard, did they spy a headstone: “Oh, it’s a cemetery.” A few years ago, Barnes read in the newspaper that the place was called Geer. “My grandmother’s maiden name is Geer,” she told me. “And so I asked her, ‘Do we have people buried there?’ ” I met Barnes at the cemetery on a warm, cicada night, with Debra Gonzalez-Garcia, the president of the Friends of Geer Cemetery.

As lawmakers on Capitol Hill make their ways through the infrastructure bill and the $3.5 trillion spending bill, two potential scenarios are haunting the negotiations. ... Those at the Federal Reserve and Treasury Department probably are scrambling to prepare what-if scenarios, according to Harvard law professor Howell Jackson — like prioritizing debt or paying everyone really slowly. “But I should emphasize that we really don’t know how it would work and whether they should do it,” Jackson said. “And I think it’s important for everyone to recognize that this is very dangerous territory.”

Members of the Mt. Washington Commission had a chance at its meeting last Friday to see Harvard Law School third-year student Erin Savoie in action. Two other law students—Seorae Ko and Lowry Yankwich—who work with Erin on a three-member team from the Harvard Negotiation & Mediation Clinical Program were not present.

When President Joe Biden directed the Occupational Safety and Health Administration (OSHA) on Sept. 9 to impose strict COVID-19 vaccination and testing protocols on large businesses, the OSHA employees were ready. ... Public opinion may not have been behind the original ETS, either. Support for a widespread federal response is higher now than it was at the start of Biden’s term, says N’dea Moore-Petinak, a doctoral candidate at the University of Michigan and coauthor of the book Coronavirus Politics. And businesses may be more open to a vaccine and testing mandate than they would be to a masking mandate like the one included in the original ETS, says Glenn Cohen, an expert on health law and bioethics at Harvard Law School. “While I think masking is terrific, politically it’s a harder sell and the compliance rates may be lower,” he says. “With vaccination, it’s easier to ensure compliance.”

 An op-ed by Laurence H. Tribe, Neil H. Buchanan, and Michael C. Dorf ’90: At the Jan. 6 rally preceding the assault on the Capitol, Rudolph Giuliani called for “trial by combat.” The next speaker was John Eastman. He praised Giuliani’s remarks and then made fantastic claims of voter fraud, including that “secret folders” of ballots were deployed to deny Donald Trump reelection. Who is John Eastman? Like Giuliani, he was once a respected lawyer. Eastman is a former law clerk to Supreme Court Justice Clarence Thomas and the former dean of Chapman Law School. At the time of the insurrection, he remained a tenured professor there. Within weeks, Chapman and Eastman cut ties. Soon he would also forfeit his position as a visiting professor at the University of Colorado.

Facebook’s Oversight Board styles itself as a crucial check on one of the world’s most powerful companies, but its efficacy is in doubt. While Facebook would like its $130 million corporate high court to have that legitimacy, the board is questioning whether Facebook has been honest about its own content moderation practices. ... “It’s becoming clear that when the board asks Facebook questions, it is not getting complete information,” said Chinmayi Arun, a resident fellow at Yale Law School and an affiliate of Harvard’s Berkman Klein Center For Internet & Society.

Chloe Clem did not intend to be an Internet sensation. She didn’t know her facial expression would resonate with fans for years to come. And she certainly didn’t know it would make her family more than $74,000. .... Eight years later, a non-fungible token (NFT) of the meme was sold Friday to 3F Music, a music production company based in Dubai, for 25 Ether — the cryptocurrency of the Ethereum network — which was worth more than $74,000 around the time of the sale. ... NFTs generally represent specific versions of digital files, though an NFT could also be assigned to an object, said Rebecca Tushnet, a professor of intellectual property law at Harvard Law School. “It is a way of saying, ‘I have a unique instance of a thing that is in fact infinitely replicable,’” she said. “It is basically artificially created uniqueness.”

Treasury officials face an unusually difficult task this fall in projecting precisely when the federal government will no longer be able to pay its bills, a lapse that could trigger a default and plunge America into an economic recession. ... “Yes, it may be a violation of the Constitution for the president to simply ignore the debt ceiling. But it’s even more serious for him to obey the debt ceiling and have default in violation of Section 4,” said Harvard law professor Laurence Tribe, whose legal advice the administration has repeatedly sought, in an interview.

An op-ed by Noah Feldman:Neil Gorsuch has big ambitions. Every Supreme Court justice wants to do good work, write good opinions and influence the trajectory of American law. Justice Gorsuch wants more: intellectual leadership of the conservative legal movement. That would make him the heir to the late Justice Antonin Scalia, whom he replaced in 2017 after the Senate refused to vote on President Barack Obama’s nomination of Judge Merrick Garland. Gorsuch’s aspiration to intellectual leadership fairly bursts from his votes and opinions and seems to have formed early in his career. He might accomplish it if emerging splits within the close-knit family of conservative legal thinkers break his way.

Former President Donald Trump’s attempts to hide his actions from the congressional committee investigating the Jan. 6 attack on the U.S. Capitol, which he incited, would need the cooperation of Joe Biden, the man he claims is not the legitimate president ― and that cooperation will not be coming. ... “The compelling interest of both Congress and the Justice Department in investigating attempted coups, failed insurrections and criminal violations of federal election laws would suffice to overcome even an applicable claim of executive privilege,” said Laurence Tribe, a constitutional law professor at Harvard.

The Harvard law professor Randall Kennedy’s new book, “Say It Loud!,” collects 29 of his essays. Kennedy’s opinions about the subjects listed in the book’s subtitle — race, law, history and culture — tend to be complex, and he’s not afraid to change his mind. He says on the podcast that there’s “no shame” in admitting you’re wrong, and that he does just that in the book when he finds it appropriate. “I thought that the United States was much further down the road to racial decency than it is,” Kennedy says. “Donald Trump obviously trafficked in racial resentment, racial prejudice in a way that I thought was securely locked in the past. This has had a big influence on me. I used to be a quite confident racial optimist. I am not any longer. I’m still in the optimistic camp — I do think that we shall overcome — but I’m uneasy. I’m uneasy in a way that was simply not the case, let’s say, 10 years ago.”

An op-ed by Noah Feldman: Retweets are not endorsements, goes the formula. But is a tweet linking to an existing article a republication of the article, legally speaking? A federal appeals court said last week that the answer may be yes, and on that basis revived a libel lawsuit filed by U.S. Representative Devin Nunes against the journalist Ryan Lizza. The consequences are significant, opening the door to a raft of lawsuits against people who post links on social media platforms or anywhere else.

Like many ravaging storms that came before it, Hurricane Ida exposed the fragility of Louisiana’s power grid, knocking out electricity to hundreds of thousands of…

Prosecutors and states are increasingly trying to tackle wage theft through criminal action against employers, seeing it as a necessary complement to civil enforcement and an instrument of public safety, experts say. ... The need for criminal prosecution of wage theft and other employment law violations has become all the more imperative, said Terri Gerstein, the director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program. "I think that the situation of working people in our country has become dire," she said. "One of the benefits of criminal prosecution is it just sort of changes the calculus … there's a whole other set of consequences other than just, 'OK, I'm going to pay money and keep on violating the law.'"

Food and Drug Administration officials said in July that Pfizer’s application for full approval of its COVID-19 vaccine would enjoy “priority review,” and set a target deadline for finishing by January 2022. They beat the deadline easily, licensing the shots in late August. That’s faster than other vaccines and drugs that have been marked as priorities for the agency. ... “EUAs were used pretty sparingly till recently. There was some use in 2009 related to H1N1, but other than that you don’t see many notable uses,” said I. Glenn Cohen, a health expert at Harvard Law School. “In terms of its pre-history, you might trace it to some of the pressure FDA faced during the AIDS crisis at being too slow to meet the needs of the infected, which among other things prompted it to introduce a priority review designation and accelerated-approval program in 1992.”

Ten years after the end of "don’t ask, don’t tell, former members of the military who were forced out of the service for being gay say they still face repercussions from the policy that one lawmaker called “a dark chapter in the history of our nation’s military.” On Wednesday, members of a House subcommittee heard testimony about the lingering effects. Some ex-service members suffer from debilitating depression and trauma disorders. Others struggle to find work, and many don’t have access to the benefits other veterans receive — a discrepancy that leaves them at higher risk of mental health issues. Studies have found that 15 percent of LGBTQ veterans attempt suicide, compared with less than 1 percent for the entire veteran population. ... Peter Perkowski, a clinical instructor at the Veterans Legal Clinic of the WilmerHale Legal Service Center of Harvard Law School, said he’s met many LGBTQ veterans who are still suffering, “and some of them weren’t traumatized by their work,” Perkowski said. “They weren’t traumatized by going to war or on a deployment. They were traumatized by being investigated. They were traumatized by being witch-hunted. They were traumatized by being harassed, and they were traumatized by how they were treated on the way out.”

When a Massachusetts woman and her partner learned neither of them could carry a child, the women turned to their Facebook friends for help. “[W]ho wants to pop out a baby for my [fiancee] and I?!” the Massachusetts woman posted in early 2017, according to court documents. It wasn’t long before she received a private message. “Hey, if you and [fiancee] were serious about a baby … then I would do it,” wrote a woman who said she was childhood friends with the fiancee. ... “This case is truly amazing,” Janet Halley, a Harvard law professor, told The Post. “The court had no law to apply.”

A novel lawsuit challenging the federal judiciary's handling of sexual harassment is "emblematic" of all that is wrong with the courts as a workplace, say advocates, who warn that a ruling favoring the judiciary could leave its employees with few options to combat misconduct. ... That lack of statutory protections is one of the reasons why Roe's suit claims the judiciary's failure to address her harassment complaints violated the due process and equal protection clauses of the Fifth Amendment, according to professor Jeannie Suk Gersen of Harvard Law School, who is serving as lead counsel on Roe's appeal. “Roe cannot bring a claim under Title VII, or any other federal employment statute, because it does not cover the 30,000 federal judiciary employees,” Gersen said. “That would be an unacceptable gap in legal protection against employment discrimination, if the Constitution did not protect those employees from discrimination.”

Health apps have to tell their users about any data breaches or risk a hefty fine, the Federal Trade Commission clarified in a policy statement last week. The rule that requires that transparency is a decade old, but it hasn’t been enforced before. The new guidance serves as a warning to the many companies elbowing into the health app space: the FTC is taking issues around health data privacy seriously — even if it won’t be able to tackle all the privacy gaps on its own. ... The FTC’s new focus on making sure companies follow the rule could trigger internal changes at health apps, says David Simon, a research fellow at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “It’s going to force them to at least put systems in place, if they’re not already in place, to figure out when these breaches occur and then notify people,” Simon says. The rule says that groups have to report any data breaches that they should have known about, not just that they do know about — so they have to have ways to monitor data.

This month saw the publication of the inaugural issue of The American Journal of Law and Equality, a project developed by three Harvard Law School professors in collaboration with MIT Press. The first issue features a variety of views from legal, academic and philosophical scholars, including its three editors and founders: 300th Anniversary University Professor Martha Minow; Michael R. Klein Professor of Law Randall L. Kennedy; and Robert Walmsley University Professor Cass R. Sunstein ‘78.