Media Mentions

An op-ed by Noah Feldman: The consensus among legal experts seems to be that states have the right to mandate vaccine passports. The main basis is a 1905 Supreme Court case, Jacobson v. Massachusetts, which held that the Constitution wasn’t violated when the city of Cambridge required all adults to get the smallpox vaccine. Following the same logic, courts have upheld state laws mandating vaccines for schoolchildren. But we should not assume that this deference to state power would continue under the current Supreme Court. For one thing, the constitutional tests for infringements on personal liberty have been refined in the last half century. For another, the current court is deeply sympathetic to religious exemptions. If large numbers of people decline vaccination on religious grounds, it would effectively undermine the power of any passport system. The Jacobson precedent is certainly well established. It was written by Justice John Marshall Harlan (the first of two justices of that name), who established his place in the court’s pantheon by dissenting in the shameful case of Plessy v. Ferguson, which upheld racial segregation.

About a year ago, the Baltimore State’s Attorney’s office stopped prosecuting several low-level offenses—minor drug possession, prostitution, and minor traffic offenses—to reduce the flow of people in and out of local jails and slow the spread of COVID-19. In March, State’s Attorney Marilyn Mosby announced she was making the changes permanent. The decision to stay the course, Mosby told The Appeal, was clear...Researchers and advocates have argued for years that more attention needs to be paid to the misdemeanor system, which ensnares millions of people each year but generally gets less public attention than the felony system. Roughly 80 percent of all criminal cases—more than 13 million annually—are misdemeanors, Harvard Law Professor Alexandra Natapoff told The Appeal. “We cannot reduce mass incarceration without reducing the misdemeanor net that sweeps the vast majority of people into the system in the first place,” she said. New declination policies, she added, “are extraordinarily important” to that effort.

A struggle is underway over how prosecutors charge gun crimes in Washington, D.C. The Justice Department says it needs flexibility to bring some cases in federal court, where penalties are higher. But civil rights groups say the policy discriminates against Black residents. NPR national justice correspondent Carrie Johnson reports. Featuring Harvard Law professor Andrew Crespo.

Coverage of the recent union election by Amazon warehouse workers has often referred to “national attention” around the “high-profile” event, for which “the world” and “we” have breathlessly awaited the outcome. The implied “we” are mostly news media, politicians, celebrities, and a pro-labor contingent of avid tweeters. It’s my job to relay Amazon workers’ reports of dehumanizing graveyard shifts and paranoia-inducing surveillance. But what about everyone else? ... Since people can’t protest at an e-commerce site, however, some labor reform advocates have floated the idea of a virtual picket line. This comes up in the Clean Slate Agenda, a report from Harvard Law School, produced by over 70 researchers, labor professionals, tech workers; they suggest lawmakers compel a company to post a notice on its website that informs consumers of a labor dispute and forces them to actively decide to cross the picket line...We asked Benjamin Sachs, a co-founder of the Clean Slate for Worker Powerproject, to elaborate. Sachs pointed to the existing legal framework and—a great idea—an easily achievable self-install that wouldn’t require any political battle at all.

Videoconferencing software, such as Zoom and Microsoft Teams, is increasingly used to facilitate access to the courts during the pandemic. While the software can bring physically distant parties together, not all connections are equal. A recent case in Massachusetts, Commonwealth of Massachusetts v. Vazquez-Diaz, highlights the potential inequities of virtual hearings...Agreeing that the case presented novel legal issues, the trial judge stayed the ruling to allow Massachusetts’ highest court to hear the appeal. A joint amici brief was filed by the Boston Bar Association, The Massachusetts Association of Criminal Defense Lawyers, and The Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. The Massachusetts Supreme Judicial Court held oral argument in December 2020 and, as of the writing of this column, has yet to issue its decision...While it is tempting to see virtual hearings as an inclusive solution for physical court access challenges, as Katy Naples-Mitchell, Esq. of the Charles Hamilton Houston Institute explains, existing societal inequities can be amplified by virtual technology. Judges may have quality broadband access and zoom-capable devices with large screens that enable them to see and hear all the hearing participants well. For others who appear before the court, what they see and hear may be qualitatively different.

Covid-19 vaccination requirements are fast becoming facts of life in the U.S., spreading business by business even as politicians and privacy advocates rail against them. Brown, Notre Dame and Rutgers are among universities warning students and staff they’ll need shots in order to return to campus this fall. Some sports teams are demanding proof of vaccination or a negative test from fans as arenas reopen. Want to see your favorite band play indoors in California? At bigger venues, the same rules apply...Given the fraught politics, many companies are “not necessarily wanting to be the first in their sector to take the plunge,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School. Still, “we’re going to see employers start to require vaccinations if you want to come into the office, if you will have a public-facing job.” ... Some legal experts have cautioned that because vaccines have only emergency federal approval, businesses can’t require them. But that issue is “a bit of a red herring,” Harvard’s Shachar said, because the vaccine data is so strong, the shots are so effective and the virus is so dangerous.

Once obscure, the Senate filibuster is coming under fresh scrutiny not only because of the enormous power it gives a single senator to halt President Joe Biden's agenda, but as a tool historically used for racism. Senators and those advocating for changes to the practice say the procedure that allows endless debate is hardly what the founders intended, but rather a Jim Crow-relic whose time is up...The debate ahead is no longer just academic, but one that could make or break Biden's agenda in the split 50-50 Senate. Carrying echoes of that earlier Civil Rights era, the Senate is poised to consider a sweeping elections and voting rights bill that has been approved by House Democrats but is running into a Senate Republican filibuster...Harvard Law professor Michael Klarman said while the filibuster may not in itself be racist, it certainly has been used that way in the past — as well as in the present. "There's nothing partisan about saying the filibuster has mostly been used for racist reasons, I think everybody would agree that that's true," he said.

Netflix’s “Tiger King” burst into a new world of pandemic streaming and gave viewers exotic animals, personal and professional drama, and a man with a mullet’s attempt to launch a political career in Oklahoma. But years before the theatrics, a legal showdown was brewing between zoo owners featured in the show and animal activist groups that seek to shut down the cub-petting industry with the help of the federal government. Jeffrey Lowe and Timothy Stark separated endangered tiger cubs from their mothers at too early an age to create photo opportunities with a paying public, according to such groups as People for the Ethical Treatment of Animals and the Animal Legal Defense Fund...The case against the Lowes is a “breakthrough moment,” said Katherine Meyer, visiting assistant clinical professor of law and director of the Animal Law and Policy Clinic at Harvard Law. Meyer was involved in one of the first lawsuits brought under the act to protect animals in captivity. PETA alleged in 1993 that Bobby Berosini had abused endangered orangutans for an act at his Las Vegas nightclub. The U.S. Fish and Wildlife Service eventually revoked the facility’s captive-bred wildlife permit. Environmental groups have brought several cases throughout the past decade using the same theory that the ESA can protect individual, captive animals, according to Meyer.

U.S. colleges hoping for a return to normalcy next fall are weighing how far they should go in urging students to get the COVID-19 vaccine, including whether they should — or legally can — require it. Universities including Rutgers, Brown, Cornell and Northeastern recently told students they must get vaccinated before returning to campus next fall. They hope to achieve herd immunity on campus, which they say would allow them to loosen spacing restrictions in classrooms and dorms...Harvard Law professor Glenn Cohen, who teaches health law and bioethics, said there's no legal reason colleges wouldn't be allowed to require COVID-19 vaccinations. It makes no difference that the shots haven't been given full approval, he said, noting that many colleges already require students to take coronavirus tests that are approved under the same FDA emergency authorization. But there’s also no federal guidance explicitly permitting vaccination mandates. The biggest clashes could come in states taking a stance against vaccination requirements, he said.

Despite the strongest public support and the most sympathetic president in years, the American labor movement just suffered a stinging defeat -- again. Amazon warehouse workers in Bessemer, Alabama, overwhelmingly voted against joining the Retail, Wholesale and Department Store Union in much-anticipated election results announced Friday...The retail union complains that Amazon plastered the Alabama workplace with anti-union posters and forced employees to sit through mandatory sessions in which the company disparaged the union. Labor organizers, by contrast, had to catch employees outside the warehouse gate to make their pitch. "The law failed the workers,'' said Benjamin Sachs, a labor law professor at Harvard Law School. "The law gives employers far too much latitude to interfere in workers' ability to make a choice to join a union. That choice should be for the workers to make, not the employers to make."

An essay by Jeannie Suk Gersen: When I teach criminal law, I always begin with a deceptively simple case. A police officer shot and seriously injured a man who resisted arrest for a misdemeanor of illegal fishing. Did the officer commit the crime of assault? I’ve long thought that the force that police may use in making an arrest reveals one of the most basic facts about our society: that the state has power to inflict violence on us in certain circumstances, in the name of enforcing law. We consider it justified for police officers, unlike ordinary citizens, to inflict violence on individuals—with fists, batons, pepper spray, tasers, guns—up to the point of death, so long as the officer embodies valid legal authority and the amount of force is proportionate to what is needed to get the individual to submit to that authority. So, when police actions result in a person’s death, it is not necessarily a criminal homicide; that depends on whether the police are found to have used an excess of force. The killing of George Floyd, in May, 2020, set off worldwide protests of the deadly and pervasive subordination of Black Americans by the police. The homicide trial of the officer accused of killing Floyd, Derek Chauvin, which began in Minneapolis on March 29th, is focussed on a more discrete question.

If former President Donald Trump manages to get back on Facebook and Instagram this month, his win will rest on a series of close calls. Facebook’s oversight board is expected to rule in the coming weeks on whether to uphold or overturn Trump’s indefinite suspension from the platforms, which the company imposed after the Jan. 6 Capitol riots over fears he might incite further violence...The oversight board’s decisions so far would seem to offer favorable omens for Trump: It has ruled against Facebook and ordered content restored in almost every case it has reviewed since its launch before the 2020 U.S. elections...The early rulings showed that the board values free expression “very highly,” said Evelyn Douek, a lecturer at Harvard Law School who has closely followed the oversight board’s work. “They put a lot of weight on the importance of voice and the importance of free expression and free speech and they really put the onus on Facebook to heavily justify any restrictions that they wanted,” she said.

An op-ed by Johanna Wald and David J. Harris: More than 10 years ago, a quiet movement largely populated by White activists was launched to abolish the death penalty by 2025. Like all abolitionist movements, it faced daunting odds. But it has been greatly aided by the efforts of Black intellectuals and litigators to place the death penalty squarely within our nation’s history of white supremacy, racial terror and social control. Through Charles J. Ogletree Jr. and Austin Sarat’s book “From the Lynch Mob to the Killing State” and the leadership of Bryan Stevenson’s Equal Justice Initiative, the white sheets that hid lynching’s horrors have been torn away. Stevenson has called capital punishment lynching’s “stepchild” and noted that “the states with the highest lynching rates are the states with the highest execution rates.” Or, as one exoneree noted: “They brought the tree from outside and put it inside.” Until recently, the death penalty has enjoyed broad public support in the United States, which has allowed public officials to quietly spend millions every year to kill a very select number of people. But the logic, values and trade-offs implicit in decisions to prosecute capital cases and pursue executions are being increasingly questioned by a public grown wise to the reality behind “tough on crime” rhetoric.

They hit your computer screen like a timebomb, complete with a countdown clock, threatening language and instructions on how to buy back your own data. Ransomware attacks cripple systems, compromise data and leave victims completely vulnerable. They’re also on the rise. “We’ve seen a huge uptick in this activity and I think the answer is really obvious: all of us are working remotely now,” said David O’Brien, assistant research director for Privacy and Security at Harvard University’s Berkman Klein Center for Internet and Society. O’Brien said it’s estimated as much as $350 million was paid out to ransomware gangs in the last year. A decade ago, cyber-criminals started targeting individuals, but soon realized they could extort more money out of schools, cities and large corporations. “They figured out over time it’s actually much more profitable to target larger organizations,” O’Brien said. “Don’t extort them for just a few hundred dollars like you might see in the case of a personal attack, but actually a few million or a few hundred thousand.”

There's widespread agreement that it's important to help older adults and people with disabilities remain independent as long as possible. But are we prepared to do what's necessary, as a nation, to make this possible? That's the challenge President Biden has put forward with his bold proposal to spend $400 billion over eight years on home and community-based services — a major part of his $2 trillion infrastructure plan...It comes as the coronavirus pandemic has wreaked havoc in nursing homes, assisted living facilities and group homes, killing more than 174,000 people, by some estimates, and triggering awareness of the need for more long-term care options. "There's a much greater understanding now that it is not a good thing to be stuck in long-term care institutions" and that community-based care is an "essential alternative, which the vast majority of people would prefer," says Ari Ne'eman, a doctoral student in health policy at Harvard University, andsenior research associate at Harvard Law School's Project on Disability.

An action plan to curb food loss and waste in the U.S. — pitched to Congress and the Biden administration this week by four organizations and supported by a host of cities, businesses and nonprofits — recommends funding infrastructure that keeps organic waste out of disposal sites by providing state- and city-level investments for measuring, rescuing and recycling it. Led by the Harvard Law School Food Law and Policy Clinic (FLPC), Natural Resources Defense Council (NRDC), ReFED and World Wildlife Fund, the plan also stipulates that federal facilities take steps to prevent organic waste and purchase finished compost products. The organizers urge lawmakers to spur growth of compost markets among private sector buyers as well. The plan calls for allocating $650 million annually through at least 2030 to states and cities for organic waste recycling infrastructure and other food waste reduction strategies. It also calls for $50 million for those cities and states to pursue public-private partnerships; $50 million in grants for research and innovation in the space; $3 million annually through 2030 for consumer food waste reduction research and behavior change campaigns; and $2 million to add personnel to the Federal Interagency Food Loss and Waste Collaboration.

An op-ed by Noah Feldman: Over a veto by the state’s Republican governor, Arkansas has passed a bill, known as the SAFE Act, prohibiting range of gender transition medical treatments for people under 18, with some minor exceptions. It covers hormone therapies known as puberty blockers that can prescribed to transgender children to inhibit the sex hormones that drive the onset of puberty. The law is morally repugnant, overriding the decisions of medical professionals, parents, and transgender teens and kids. Nevertheless, forthcoming legal challenges, which the ACLU has said it will bring, face an uphill battle. States ordinarily have the authority to prohibit medical treatments. There is a federal statute, Section 1557 of the Affordable Care Act, that prohibits sex-based discrimination in a healthcare program that gets federal funds. But that provision may not be enough to stop a state from outlawing treatments of which it disapproves — especially if those same treatments would not be prescribed for cisgender children. Thus, in a weird and counterintuitive twist, state law barring transgender girls from participating girls’ sports are likely to be struck down by the courts as unlawful; but laws prohibiting giving hormone therapy to transgender kids may be upheld.

The Biden administration and Democrats in Congress are gearing up for another run at mandatory reductions of the oil and natural gas industry's methane emissions, amid signals from the sector that it might accept some additional controls as part of its contribution to addressing climate change. Given that methane has about 84 times the global warming potential of carbon dioxide over a 20-year period, agreement is widespread that further reductions are necessary...In this particular case, the Trump rollback came in the form of two separate rules amending the 2016 rule, explained Hana Vizcarra, staff attorney at the Harvard Law School Environmental and Energy Law Program, in an email to IHS Markit. "In one, the Review Rule, the EPA reinterpreted the Clean Air Act in a way that limited its authority to regulate and, they argued, required them to cut storage and transmission out of the rule entirely. The other, the Reconsideration Rule, dealt with technical aspects of the requirements," she wrote. To greatly simplify the situation, Vizcarra said that the current proposed CRA resolution would only rescind the Review Rule, and "because this was an amendment to the 2016 rule, its disapproval would mean the regulations would revert back to the 2016 status quo." But the Reconsideration Rule elements would stand as modifications to that 2016 rule.

In the last four months, five states have legalized recreational marijuana, meaning now 30% of the country allows its adult residents to possess and use cannabis. At least two more states are poised to be added to that list following the passage of cannabis legalization bills this year. Marijuana policy experts and advocates say this national trend is indicative of a shift in Americans' perspectives on marijuana. Arguments from elected officials and voters that centered around perceived dangers of marijuana substance abuse or a rise in criminal activities have quelled as evidence has grown to show there are economic, social and health benefits from a state regulated cannabis industry, according to Mason Marks, a law professor at Gonzaga University and a fellow-in-residence at Harvard Law School's Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. "It’s turning out to be very antiquated," Marks said of past opposition to legalizing marijuana. Marks and other experts say there will be stronger legalization efforts in the near future. However, they noted there would still be an uphill battle before the country sees any true national repeal of its marijuana laws.

An op-ed by Alexander Chen: “Where are your gym clothes?” “I lost them.” “Again?” my mom said, exasperated. I knew it would be frustrating for her, replacing my gym clothes for the third time that year as a single mom. I hadn’t really lost my gym clothes, though. I knew exactly where they were—wedged behind the tall bush at the back of the school property, where I’d lobbed them right before PE class. The last two sets had been “lost” in similar fashion—tucked under a stairwell, secreted behind a tree—each time so I wouldn’t have to go to PE that day. The reason I dreaded going to PE was that, although I didn’t realize it at the time, I was a transgender boy. All I knew was I hated the changes that were happening to my body during puberty. I hated that we had to change in the locker rooms. I hated having to wear the gym clothes because they were more revealing than the bulky clothes I wore to school every day. And I hated the gender-segregated teams and activities, where I was forced to play “girls” sports rather than “boys” sports. The thing was, aside from the gender dysphoria, I really liked PE. I liked running and hiking. I was an excellent third baseman. I enjoyed developing teamwork and camaraderie with my friends. But the gender-related anxiety would build and build, culminating in these moments of blind panic where I would chuck my gym clothes into a bush right before class.

Justice Stephen G. Breyer said Tuesday that proposals to expand the Supreme Court to dilute the power of its conservative majority risk making justices appear more political and could hurt the court’s influence with the public. Breyer, one of the court’s three liberals, defended the court’s independence by pointing to its decision to resist President Donald Trump’s attempts to draw the court into lawsuits that sought to overturn Trump’s defeat in November. In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.” He added: “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.” Some Democrats and liberal activists say that adding seats to the court is the only way to blunt the court’s conservative majority.