Media Mentions

Amid growing national awareness of the problems of racially biased policing, the Supreme Judicial Court will have a chance to weigh in on a tactic that is increasingly drawing scrutiny: the designation of someone as a gang member. The police say they use their knowledge of gangs to crack down on gang-related crime. But critics of police practices say the methods law enforcement uses to designate someone as a gang member are racially biased, and the designation then leads to aggressive over-policing, often of young men of color. Katharine Naples-Mitchell, of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said gang membership “becomes a distorting lens through which all other facts are interpreted.” The SJC on Monday will hear arguments in a case stemming from a traffic stop in New Bedford, which has potentially broad implications for how police can use gang affiliation in making decisions about how to treat someone...The advocates say the criteria the police use to assign “gang membership” are unreliable and can include things like clothing color, social associations, and whether a family member has been murdered. Naples-Mitchell said the criteria also vary from city to city, illustrating how subjective they are.

What's up with Texas? Austin, the blue capital of the red state, is named for a Southern slaveholder, the acclaimed “Father of Texas,” who brought 300 families and their human chattel with him to extend the South’s peculiar institution into the area we now call the American Southwest. The banners honored in the Texas-based Six Flags Theme Parks’ name include two — the Republic of Texas and the Confederate States of America — from entities that sought not only to preserve slavery, but to enshrine it in perpetuity. And the “heroes” of the Alamo died not to free themselves from despotic Mexican rule, as is often portrayed in our mythology, but, as Mexico was moving toward abolition, to make their newly occupied land forever unfree for the enslaved workers who allowed them to prosper as the plantocracy of East Texas. In On Juneteenth, Harvard historian Annette Gordon-Reed grapples with the myths and contradictions of her beloved home state — a place that once subjugated, segregated, and lynched Black people (including in her home county) and remains ruled by politicians determined to suppress the hard-won votes of minorities and maintain their own power even as demographics inevitably shift.

Members of the World Trade Organization are scheduled to meet Friday to discuss a proposal by India and South Africa to temporarily suspend patents on COVID-19 vaccines. Backers of the plan say it would increase the supply of vaccines around the world by allowing more countries to produce them. There’s now enough supply in the U.S that any adult who wants a shot should be able to get one soon...I. Glenn Cohen at Harvard Law School said the U.S. government had some leverage when it was making deals with drug companies as part of Operation Warp Speed. “One could have imagined a version of this where, as part of a condition of receiving the funding, there was more done to ensure access for less developed countries and sharing of technology and sharing of intellectual property,” Cohen said. More than 100 countries have backed the proposal to temporarily waive COVID-19 vaccine patents. The U.S isn’t one of them, but the White House has said it’s considering the idea.

West Virginia and other states are taking a critical climate question to the U.S. Supreme Court, asking the justices to embrace a narrow interpretation of federal authority to regulate planet-warming emissions...The Supreme Court has previously expressed interest in the EPA’s regulatory authority over greenhouse gases, taking the unprecedented step of freezing the Obama-era Clean Power Plan before it was litigated in lower courts. But the states’ new petition faces a “vanishingly small chance” of being granted, Vermont Law School professor Patrick Parenteau said, as the Biden administration has already said it doesn’t plan to revive the Trump or Obama rules. “Better to wait to see what EPA comes up with,” he said. Harvard Law professor Richard Lazarus agreed, but noted that the case could present a test for the conservative Supreme Court. “The petition provides an opportunity to measure to what extent the new six-Justice conservative majority on the Supreme Court is aggressively looking for opportunities to cut back on EPA’s authority even in the absence of the normal indicia necessary for Supreme Court review,” he said in an email.

No vaccination, no class: That’s the message being sent to some Tampa Bay college students. A growing number of colleges and universities, more than 100 nationwide, say a COVID-19 vaccine will be mandatory this fall, according to a list maintained by The Chronicle for Higher Education...But is this legal? More than 115 years ago, the Supreme Court held that states can compel vaccinations. “The 1905 decision in Jacobson versus Massachusetts recognizes that states have significant powers under the Constitution,” said Professor I. Glenn Cohen, a Harvard Law professor and leading expert on medical ethics. “A state can definitely introduce a vaccination mandate should they so decide to do.” We know colleges require proof of vaccines for measles, mumps, and meningitis but the coronavirus is a bit different. The COVID-19 vaccines only have Emergency Use Authorization rather than the standard, full U.S. Food and Drug Administration approval. Some legal experts believe the shots, approved only for emergency use, can’t be mandated. Professor Cohen disagrees. “The statute is intended to tell people that they have a choice whether to get vaccinated or not but really has no meaning as to whether a private employer or a private university can require you to be vaccinated,” Cohen said. “It’s your choice, but if you choose not to be vaccinated, this is one of the consequences.”

An op-ed by Noah Feldman: Democrats in Congress are using the Congressional Review Act to reverse a Trump-era regulation on methane leaks at the Environmental Protection Agency. Republicans previously used the unusual law to revise an Obama-era EPA regulation on methane, as well as other federal agency rules — in fact, the GOP used the law 14 times at the beginning of Trump’s term in office. This marks the first time Democrats have followed suit. Tighter methane rules are sensible. But the CRA is a terrible law. Typically, legal requirements make it hard to reverse agency regulations without a clear analysis and explanation because it’s understood that the rules are based on expertise and detailed cost-benefit analyses. The CRA invites politicians to sideline agencies’ research and reasons and make snap political decisions by a bare majority in Congress. It encourages a seesawing of regulatory policy — which is not a helpful to anyone. The Republican use of the CRA in Trump’s presidency was an outrage. Democrats should not get into the same habit.

Nasdaq has, in its own words, embraced “the social justice movement.” The actual job of a stock exchange, however, is to ensure that trading is orderly and its listed companies follow standard governance rules. But doing that doesn’t earn the applause of the political left...Nasdaq claims board diversity protects investors because it might reduce the likelihood of “fraudulent and manipulative acts and practices” and increase shareholder value. But social scientists agree only that there is no agreement: Academic research hasn’t established a positive correlation between female board directors and firm performance. Even ambivalent studies that find a weak correlation aren’t evidence that having one or more women as directors improves shareholder value, which is what Nasdaq must prove. Nasdaq is also suspiciously silent about many other studies that undermine its argument. As Harvard professor Jesse Fried has pointed out, some of the best evidence suggests that pushing for increased diversity at the expense of other priorities hurts shareholder value.

Facebook temporarily hid posts calling for the resignation of Indian Prime Minister Narendra Modi, marking the platform's latest foray in a series of controversial decisions affecting free speech in a country experiencing a full-blown COVID-19 crisis. On Wednesday, the world’s largest social network said that posts with the hashtag or text #ResignModi “are temporarily hidden here” because “some content in those posts goes against our Community Standards.” Because the posts were hidden, it’s unclear what content violated the rules of a company whose executives have often expressed a commitment to open expression... “In the context of a highly politicized environment and an ongoing emergency, it’s very concerning that Facebook isn’t being more transparent about this and is not commenting,” said evelyn douek, a lecturer at Harvard Law School. “This appears to be core political speech at a very critical time.”

California clean tech innovator Bloom Energy, with its noncombustion, low-emission fuel cells, is hardly taking the same approach to powering the planet as oil giant Chevron, but one thing the companies have in common are slick promotional campaigns defining them as environmental pioneers. That public relations savvy, though, has lately become a liability for both firms...Unlocking the black box of corporate secrecy is a central pillar of federal and state plans for confronting warming, which are increasingly focused on requiring a wide range of businesses, including financial firms, food suppliers and tech giants, to be painstakingly — perhaps uncomfortably — specific with investors and the public. Even secret contributions to advocacy and political groups could soon be forced into the daylight. “Companies can’t say they have all these policies to reach goals and not pursue them,” said Hana V. Vizcarra, a staff attorney at the Harvard Law School Environmental and Energy Law Program. “Regulators are really interested in this.”

An op-ed by Noah Feldman: “Cheerleader” and “Supreme Court” are not concepts you often see juxtaposed. But they are now, as Supreme Court considers the case of Brandi Levy, who was punished by her school for a profane Snapchat post. The facts of Levy’s case, Mahanoy School District v. B.L., are simple. In the spring of 2017, Levy, then 14, tried out for the varsity cheer squad at Mahanoy Area High School, but only managed to make the JV team. She expressed her reaction on Snapchat in a post that read “F--- school f--- softball f--- cheer f--- everything.” (Our version is expurgated; hers was not.) The post went up on a Saturday, reached some 250 of her friends and, like all other posts to the social media platform, disappeared after 24 hours. Nevertheless, a classmate showed a screenshot to her mother, who happened to be one of the cheer coaches. The coaches disciplined Levy by suspending her from the team for a year. She had broken two team rules, they said. One prohibited “foul language” — although only at “games, fundraisers, and other events.” The other said that “there will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.” For good measure, the school district said she’d also violated school rules stating that members of teams must “conduct themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.”

A podcast by Jill Lepore: In 1925, John Scopes, a high school teacher from Dayton, Tennessee, was put on trial for teaching evolution. It came to be called the "monkey trial," a landmark in the history of doubt.

Harvard Law students and faculty are working to right the wrongs of decades of discriminatory environmental policy.

An op-ed by Ashley Nunes: It pays to own a car. Earnings rise when an auto sits in the driveway. But car ownership comes at a price. Transportation is a leading cause of greenhouse gases and the bulk of these emissions come from personal autos; coupes, vans and wagons that ferry consumers everywhere from work to the grocery store to weekend soccer practice. Electrification would help. So-called EVs, are less reliant on fossil fuel for power and less fossil fuel reliance means fewer greenhouse gas emissions. This makes EVs a greener alternative to the status quo. But EVs pose a thorny challenge. The technology remains pricier than gasoline powered autos. And few things influence car sales like sticker price. The solution is purportedly subsidies. Nothing – we are told - tempers sticker shock like government handouts. Joe Biden certainly thinks so. America’s 46th President recently announced $174 billion in federal funding to realize an EV nirvana. The move – Biden argues – will, “unify and mobilize the country” to address climate change, and “reduce the impacts of climate change for our kids.”

A legal fight is looming over Arkansas’s new law banning doctors and other health-care professionals from providing transgender minors with gender-affirming care. The law threatens to discipline and potentially revoke the licenses of doctors who flout it. It also bars state and local funds from going to doctors who provide people under the age of 18 with gender-affirming care and allows private insurance companies to deny coverage for gender transition procedures, which is broadly defined to include prescription drugs like hormone treatments...The Equal Protection Clause of the Constitution requires states to treat individuals equally under the law. But Arkansas’s law bans providers from prescribing puberty blockers, which LGBTQ advocates say give children, parents, and their doctors more time to assess best treatment options. Puberty blockers are used in all sorts of children who are experiencing precocious puberty, or puberty too soon, said Alexander Chen, founding director of Harvard Law School LGBTQ+ Advocacy Clinic. “This law says it’s so bad for transgender kids to get puberty blockers that doctors have to lose their licenses for it, but it doesn’t say anything about the the use of puberty blockers for cisgender children to treat precocious puberty,” he said.

A wave of kidnappings is sweeping Haiti. But even in a country growing inured to horrific abductions, the case of five-year-old Olslina Janneus sparked outrage...Human rights activists and a new report from Harvard Law School’s International Human Rights Clinic allege that Moise’s government has allied itself with violent criminal gangs to maintain its grip on power and to suppress dissent. Opposition groups have called for Moise to resign and hand power to a transitional government that would delay presidential and legislative elections slated for September until the nation is stable enough to ensure a free and fair contest...The report released April 22 by the International Human Rights Clinic at Harvard Law School alleges “high-level government involvement in the planning, execution and cover-up” of three gang-led attacks on poor neighborhoods between 2018 and 2020 that left at least 240 civilians dead. The report relied on investigations of the attacks by Haitian and international human rights experts. It alleges the government provided gangs with money, weapons and vehicles and shielded them from prosecution.

Enno Lenze, a German entrepreneur, journalist, and museum director, had what felt like another job looking for a vaccination, a hunt he had been on since December...Finally, an option came through. World Visitor, a Norwegian travel agency, offered a package that included flying to Moscow to get Sputnik V, the Russian vaccine. Lenze and 50 other Germans jumped at the chance and traveled there earlier this month for their first jabs...Traveling for treatments with either limited availability or cheaper options than ones’ home country is not new according to I. Glenn Cohen, a professor at Harvard Law School and director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. A thriving medical tourism market has existed for years. In the case of COVID-19 vaccines, as long as at-risk groups have first been protected, countries with surplus vaccines could use them to jumpstart travel, if it is done carefully. “What matters is where the net benefit goes,” he says. “It should benefit the poorest in the community and not just the rich.” While two-dose vaccinations might tempt countries to keep visitors for longer, since it takes time to build an immune response, most post-jab tourism activities should not be rushed. “I’d be a little concerned,” he says. “I hope these people aren’t going to markets and bazaars right away.”

American social media platforms have long sought to present themselves as venues for unfettered free expression...The pandemic made a mockery of that idea...Evelyn Douek is a doctoral student at Harvard Law School and an affiliate at the Berkman Klein Center for Internet and Society. As an Australian scholar, she brings an international perspective to free speech questions. In a new article published by the Columbia Law Review, she argues that the pandemic exposed the hollowness of social media platforms’ claims to American-style free speech absolutism. It’s time, she writes, to recognize that “the First Amendment–inflected approach to online speech governance that dominated the early internet no longer holds. Instead, platforms are now firmly in the business of balancing societal interests.” In a conversation last week, Douek explained why the shift to a more “proportional” approach to online speech is a good thing, why platforms must provide more transparency into their moderation systems, and the perils of confusing onions for boobs. The interview has been condensed and edited for clarity.

Not all frontline litigators are trusted boardroom advisors. By all accounts, the incoming chair of the management committee at Sidley Austin is both...Heidi Gardner, a Distinguished Fellow at Harvard Law School’s Center on the Legal Profession, said 70% of law firms that have a firm-level strategic plan have collaboration as a key pillar of that strategy. Deal lawyers have some built-in advantages on that front. Deal lawyers by nature of their practice pull in cross-disciplinary teams from practices like tax, antitrust, and finance. But Gardner said that great litigators also have the ability to understand their clients well and see the broader set of issues that their firm can help them navigate. She also says that litigators can bring great two-way communication skills to leadership positions.“A great litigator is going to be a great listener; somebody who is going to be able to very much in the moment combine what she’s hearing with what she’s learning by reading a room,” Gardner said. “The flipside is being persuasive and influential and knowing how to address the needs of different audiences.”

It is the latest status symbol. Flash it at the people, and you can get access to concerts, sports arenas or long-forbidden restaurant tables. Some day, it may even help you cross a border without having to quarantine. The new platinum card of the Covid age is the vaccine certificate. It is a document that has existed for more than two centuries, but it has rarely promised to hold so much power over culture and commerce. Many versions of these certificates now come with a digital twist. “It’s been a long time since we’ve had a pandemic that has impacted every facet of society so thoroughly, and then a vaccine,” said Carmel Shachar, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School. “There is no precedent since 1918, and we definitely didn’t have smartphones in 1918.” Ramesh Raskar, a professor at M.I.T. Media Lab, has been leading an effort to develop a solution that includes both a paper certificate that anyone can easily carry as well as a free digital pass that works even without cell service.

An op-ed by Noah Feldman: On Monday, the Supreme Court grappled with a genuinely tough First Amendment issue: Should California be able to make charities that speak on matters of public concern disclose to the state the names of their big donors? The issue reveals something about the way that conservatives and liberals currently differ on free speech issues. On the one hand, states might need the information to combat fraud. Moreover, California says that it will keep the information confidential. The IRS already gets this information from tax-exempt charities, and has so far done a good job of protecting it. On the other hand, the Supreme Court has long held that the names of members of civic organizations like the NAACP are confidential, protected by the freedom of association. It isn’t implausible to think that if the justices uphold the California law, other states might pass laws requiring that donors be made fully public. When the justices were deciding whether to hear the case, Trump’s Department of Justice filed a friend of the court brief saying it thought the law was unconstitutional. This matched the instinct of most legal conservatives, who today tend to support a First Amendment that is highly protective of absolute free speech, including protection of anonymity.

The Supreme Judicial Court in recent years has gone to great lengths to adjust the lens through which police interactions with people of color should be viewed. But the Appeals Court has not gotten the message, a coalition of criminal defense and community groups argue in a series of letters urging the SJC to grant further...The case bears at least a couple of the hallmarks of cases involving dubious pat frisks, according to the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, the New England Innocence Project, the Massachusetts Association of Criminal Defense Lawyers and others...But whether it is conscious or subconscious, the police tend to muddy the waters with the language they use, said Katharine Naples-Mitchell, counsel for the Charles Hamilton Houston Institute. In both Garner and Karen K., part of what the Appeals Court found justified the search was the defendants’ “bladed” stances as they walked away from police. That was interpreted as an attempt to shield a firearm in their waistbands. But the groups note in their letter that the police jargon “blading” “sounds far more intimidating, aggressive, dangerous, and intentional than the alternate descriptor, ‘turning away from.’”