Media Mentions

Amid the protests last summer that followed George Floyd’s killing by Minneapolis police, three Boston City Council members proposed an ordinance to divert nonviolent 911 calls away from the Boston Police Department. Those calls—often involving mental-health emergencies, homelessness, substance use, and traffic accidents—would be dispatched to community-safety officials in non-law-enforcement agencies instead. Last fall, Harvard Law School’s Negotiation and Mediation Clinical Program volunteered to help city administrators think through concrete possibilities for how to change public-safety procedures. Two law students, William Roberts ‘22 and Anna Vande Velde ‘21, spent several months as part of the program’s Dispute Systems Design Clinic, researching other cities’ approaches and interviewing Boston-area city officials. The pair also studied the multiple ways Boston’s public-safety system intersects with other local factors: racial bias, income inequality, access to medical and mental-health care, pipelines to prison from school or foster care, and substance-abuse rates—to name only a few. The inquiry yielded a report, released late last week...The report’s recommendations and Roberts’s observations closely echoed some of the remarks at a recent Law School panel discussion revolving around the work of Kreindler professor of law Alexandra Natapoff.  Her 2018 book, ‘Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal’, inspired a documentary released this year, ‘Racially Charged: America’s Misdemeanor Problem’. After an online screening last week, Natapoff moderated a conversation among panelists that included Suffolk County district attorney Rachael Rollins and Guggenheim professor of criminal justice Sandra Susan Smith.

An op-ed by Alyssa Huang ‘23: “Go back to your country! Chinese trash!” I was shocked. “Is she yelling at me?” I wondered in disbelief. I was walking my dog when my attacker approached. In seconds, a hot wave of anger, fear, and shame washed over me. I picked up my pup and ran. She followed me, hurling more racist slurs. A few blocks later, I hurried through the lobby and punched the elevator button, hands shaking. Upon entering my apartment, I collapsed on the couch, held my dog, and sobbed. My mind raced. Should I call the cops? I wish I filmed her for proof! Was that illegal? What’s the use? No one cares. I have been a victim of racial discrimination many times in the past, often in the presence of others. No one helped me then, and I did not expect anything to change now. In the wake of the recent and numerous attacks on Asian Americans and Pacific Islanders (AAPIs), I realized I needed to speak up. My silence was complicity in this nation-wide acceptance and ignorance of violence against AAPIs. Although these past weeks have been especially severe, anti-Asian sentiment in America is not new. The U.S. has a deep history of legitimized violence against AAPIs. The mid to late 1800s was a period of intense animosity and legal discrimination against Asian — especially Chinese — immigrants.

On March 18, 1963, in the landmark case of Gideon v. Wainwright, the United States Supreme Court established the right to counsel across the nation. Since that moment there has been an ongoing conversation about what that right means, who public defenders are, and how we can all make the legal system better. Every year, public defenders use the anniversary of this historic ruling as a moment to reflect on our responsibilities and also educate others about what we do. However, when I think back on the last year, it is not enough to simply list the breadth of our mandate. Instead, on this Public Defender Day, I want to share what we have seen and experienced during a pandemic that has laid bare the gross inequities that continue to exist in our system...As our agency continues to engage in our separate-but-together advocacy, we are continuing our mission to be a positive voice in the ongoing, much-needed conversation about racial inequities in the courts. Last September, the Criminal Justice Policy Program at Harvard Law School produced a report proving what so many public defenders have argued for years: Black and Latinx people are overrepresented –– and receive longer sentences – in the Massachusetts criminal legal system.

Αn op-ed by Noah Feldman: Jury selection in the criminal trial of Derek Chauvin for the murder of George Floyd is highlighting one of the legal system’s absurdities: its aspiration to choose jurors who are not only neutral but actively uninformed about major public events. The logic is understandable. We don’t want jurors to have made up their minds before hearing the evidence presented at trial. But the result is all too often the selection of jurors who are nominally neutral because they have their heads in the sand. Choosing jurors with no meaningful knowledge of public affairs has consequences. Among other things, it entails selecting jurors who might not be able to draw upon the moral intuitions of the community that we want jurors to embody. When you come across something in the legal system that genuinely appears to make no sense, the reason is usually history. The criminal jury in the Anglo-American tradition used to have a very different purpose, as I learned from the legal historian John Langbein. The medieval purpose of a jury of peers drawn from the vicinity was to make sure that the jury was full of local people who already knew the facts of the cases they would hear.

An article by April Xiaoyi Xu '21: Among the sacrifices individuals have had to make in order for governments to accomplish these goals, a central tradeoff that citizens in various jurisdictions have experienced is one between individuals’ digital privacy and public safety. At least theoretically, one may readily see ways in which taking advantage of technological advances to monitor individuals’ compliance with the newly-launched Orwellian laws and policies can make the process more seamless and efficient. Significantly, while big data has proven to be “immensely useful in fields such as marketing and earth sciences,” the public health space has yet to see the fruits of a big data revolution. Instead of relying on recent technological advances, public health—at least up until the outbreak of the COVID-19 global pandemic—had been relying principally on traditional surveillance systems. Based on various nations’ digital technologies and data sharing strategies to resolve the COVID-19 crisis so far, one may find it likely that COVID-19 is driving major social change in an area that is integral to a healthy society worldwide.

An article by Eli Nachmany ‘22: On September 18, 2019, Robert O’Brien took over as President Donald J. Trump’s National Security Advisor.[1] In so doing, O’Brien became the fourth person to hold the position in President Trump’s Administration, following Michael Flynn, H.R. McMaster, and John Bolton. Flynn’s tenure was brief: his 24-day term in the role was the shortest in the history of the presidency.[2] Both Bolton and McMaster served as National Security Advisor for far longer, making significant marks on the National Security Council (NSC), as did O’Brien, who served as the National Security Advisor through the end of President Trump’s time in the White House. The proper role and structure of the NSC is an open question, as evidenced by the vastly different philosophies of Flynn, McMaster, Bolton, and O’Brien. This essay will tell the story of the NSC under President Trump and explore the ways in which the Council’s structure and operations differed under each National Security Advisor.

Justin Ergler, director of alternative fee intelligence and analytics at GlaxoSmithKline in Raleigh, North Carolina, said GlaxoSmithKline has moved away from the billable hour, and is now in flat-fee arrangements with its outside counsel. However, that change took the better part of a decade to achieve. “Change, even with great ideas, is oftentimes resisted until the very last second, until you have to change,” Ergler said. Ergler spoke at a Legalweek(year) presentation titled “How to Price, Collaborate, Invest in Tech and Build Business as a Result” on Tuesday...Test driving a solution is often critical to achieving buy-in and success. To drive change within an organization, there needs to be a proper pilot program in place, said Heidi Gardner, a distinguished fellow at Harvard Law School in Cambridge, Massachusetts. “A lot of people just set something up and let it run. At the end of that you don’t really have the data to know whether it was successful or not. If it wasn’t successful, why not? I think you need a much more structured, thoughtful, preemptive approach to launching a pilot,” Gardner said.

A podcast by Noah Feldman: Did January’s pro-Navalny protests have a lasting impact in Russia? Russian investigative reporter Diana Kachalova, editor-in-chief of the St. Petersburg bureau of Novaya Gazeta, an independent Russian newspaper, joins us to discuss covering the aftermath of Alexei Navalny’s case and the status of investigative journalism in Putin’s Russia.

An op-ed by Jeremy Lewin ‘22: In October, Facebook unveiled its long-awaited “oversight board” – a special, semi-independent body, staffed mainly by experts on free speech and constitutional law, with the authority to make decisions about controversial content posted on Facebook’s platform. Sometimes described as Facebook’s “supreme court”, the oversight boardhas been met, in the legal and academic worlds, mostly with wonder, excitement and praise. Giving predominantly legal scholars input on the content moderation of the world’s largest social media platform seems like a positive step for social media governance. But behind the gloss, Facebook’s experiment is intended to foster anything but genuine accountability. It is a clever obfuscation offering Facebook cover to engage in socially irresponsible profit-seeking that would be publicly reviled were it more transparent. The trick is simple. Facebook faces a problem of two-sided economic incentives: dangerous and socially objectionable content is genuinely valuable to its bottom line, but so is the public perception that it’s proactively committed to maintaining a socially responsible and safe community. It designed the oversight board to escape this double-bind. Oversight by a legalistic body with the appearance of neutrality earns Facebook public goodwill and deflects blame for lax content moderation. But in designing the structure of the body itself, Facebook has virtually ensured certain financially beneficial outcomes: maximum content, even the dangerous and harmful, left online.

An article by Sean Quirk ‘21: The Biden administration continues to focus its diplomatic energy on the Indo-Pacific, hosting a virtual summit for the Quadrilateral Security Dialogue (the Quad) and deploying senior officials to Asia to repair regional alliances. Meanwhile, regional disputes over national and international law are driving tensions in the East China Sea and South China Sea. The United States is seeking to work with its allies and partners to confront an increasingly assertive maritime posture from the People’s Republic of China (PRC). On March 12, the four heads of state from the nations of the Quad convened virtually. It was the first-ever official meeting with leaders of all four Quad countries: Australia, India, Japan and the United States. Following the summit, a joint statement highlighted the nations’ shared concerns over “COVID-19, the threat of climate change, and security challenges facing the region.” The statement also explicitly stated the Quad’s “strong support” for unity among the Association of Southeast Asian Nations (ASEAN). U.S. National Security Adviser Jake Sullivan told reporters that the Quad “committed to delivering up to one billion doses” of coronavirus vaccines to ASEAN, the broader Indo-Pacific and beyond by the end of 2022.

In the papers. Some of the academic research that caught our eye this week, summarized in one sentence: … The greater the share of a…

Senate Democrats cited a provision in the new stimulus bill to again call on Biden to cancel $50,000 in student loan debt through an executive order — despite the president previously stating that he would not do so. “Student loan debt is crushing millions of Americans,” Senators Elizabeth Warren (D-MA) told reporters on Monday. “President Biden has an opportunity to fix that with the stroke of a pen. This bill helps pave the way to cancel $50,000 in student loan debt.” The basic argument for the president to being able to forgive student debt, as detailed by the Legal Services Center of Harvard Law School, is that the Education Secretary has the power “to cancel existing student loan debt under a distinct statutory authority — the authority to modify existing loans found in 20 U.S.C. § 1082(a)(4).”

A year after making the difficult and somewhat disputed decision to de-densify Harvard’s campus, and a year after recovering from COVID-19 himself, Harvard President Larry Bacow sat down with the Gazette over Zoom to reflect on how the University and the community have met the challenges posed by COVID-19. Bacow also looked ahead to Harvard’s ongoing development in Allston and to a range of programs, collaborations, and initiatives aimed at tackling some of the world’s most pressing problems. ... For example, faculty at the Ed School are looking at issues of inequality in access to education. At the Law School, faculty are focused on the question of access to justice and inequality that serves to perpetuate racial injustice. ... With the combined forces of FAS, the Kennedy School, and the Law School, we probably have the strongest group of scholars anywhere working on public policy for addressing climate change.

Rep. Debra Anne Haaland of New Mexico was confirmed Monday as the country’s first Native American Cabinet-level official, becoming secretary of the interior. ... Other appointments include Robert Anderson, who will be one of Haaland’s top lawyers, and Jaime Pinkham, a Nez Perce tribal member, to a top post at the U.S. Army Corps of Engineers. Those appointments do not need to be confirmed by the Senate. Anderson has been appointed principal deputy solicitor at the Department of the Interior. He is enrolled in the Bois Forte Band of the Minnesota Chippewa Tribe and has taught at the University of Washington School of Law and directed its Native American Law Center for the past 20 years. He also has been a visiting professor at the Harvard Law School for more than a decade.

An op-ed by Noah Feldman: Friends, Romans, countrymen, law professors: Please stop telling Justice Stephen Breyer to retire. Yes, Breyer is a (healthy) 81. Yes, the Democratic Senate majority is wafer-thin, and it would likely be impossible for President Joe Biden to replace Breyer with another liberal if the Democrats lose even one of their 50 votes in the Senate. But here’s the thing: Breyer knows these facts already. But here’s the thing: Breyer knows these facts already. He is the one of the great pragmatist justices ever to have sat on the Supreme Court, following in the footsteps of Justice Louis Brandeis. Breyer also knows Capitol Hill, having worked there three separate times: once on the Watergate investigation and twice for the Senate Judiciary Committee. He can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he “must” resign.

The Biden administration isn’t awaiting a final price tag on a final greenhouse gas assessment metric before it starts working on new regulations — even though the final number could support even tougher regulation. ... Lengthy legal challenges that have plagued the EPA across administrations put “real pressure” on the agency to move fast, said Hana Vizcarra, a staff attorney with the Harvard Law School’s Environmental & Energy Law Program. That’s especially true, she said, when another four years in office isn’t guaranteed. “They want to see these things reach conclusion, they want to see courts actually consider the issues and make decisions, because that’s the only way anything will be lasting,” Vizcarra said.

Conspiracy theorist David Icke’s lies about COVID-19 caused Facebook, Twitter, YouTube, and Spotify to ban him. But on Amazon, Icke, who believes in the existence of lizard people, is recommended reading. ... Unlike other platforms, Amazon has not taken steps to remove COVID-19 misinformation entirely, or at least from its recommendation systems. Amazon’s approach means it’s profiting from sales of the conspiracy theory books, said evelyn douek, a lecturer at Harvard Law School who studies global regulation of online speech. “There's a strong argument that if you're making money off it, you should take more responsibility,” said douek.

An article by Tyler Giannini and Sondra Anton ’22: The United Nations Human Rights Council’s deliberations over yet another resolution on Sri Lanka this month has cast renewed attention on repeated failures to achieve any semblance of accountability for past atrocities, and on the deteriorating human rights situation over the past year following the return to power of accused war criminal Gotabaya Rajapaksa as president. The lack of accountability and concerns about future violations have rightfully received the bulk of the attention. But there is another question worth bringing to the fore – namely, how did an alleged war criminal return to power – and relatedly, should the human rights system have done more to prevent such individuals from taking official power again?

An essay by Jeannie Suk Gersen: Two weeks ago, The New Yorker published my article “Seeking the True Story of the Comfort Women.” I reported on recent claims by J. Mark Ramseyer, a Harvard Law School professor and Japanese legal-studies scholar, who said that the story of Korean “comfort women” forced into sexual servitude for the Japanese Army during the Second World War was, in his words, “pure fiction.” In an article published online by the International Review of Law and Economics, a peer-reviewed journal, Ramseyer asserted that the women were prostitutes who had freely entered contracts for compensated sex work. But, by following investigations into the article by historians of Japan and Korea, and speaking to Ramseyer himself, I found that he had made a multitude of basic errors and that he had no evidence of such contracts. “I thought it would be cool if we could get the contracts” for Korean comfort women, Ramseyer told me. “But I haven’t been able to find it. Certainly you’re not going to find it.” The history of the comfort women has presented a persistent obstacle for decades in the relations between Korea and Japan, which have been characterized by cycles in which Japan alternately acknowledges and denies responsibility, and Korea demands apology and rejects resolutions as insufficient.

Between 1525 and 1866, more than 12 million Africans were shipped to the New World as slaves. After some 200 years, slavery was abolished, and yet another century of Jim Crow, coupled with discriminatory housing and lending policies, contributed to its legacy. Dealing with the relics of that stain on American history is part of the national dilemma. But exactly how to do it is our question; something lawmakers in Washington are also now debating. A top aide to President Joe Biden recently said that the White House will ‘start acting now’ on reparations for African Americans. Some say it’s long over-due. Reparations, they say, are important to start to address the moral injury slavery inflicted. Others say direct payments to African Americans will divide the black community, exaggerate racial tensions and prove impossible to administer. Arguing that reparations are the way to go is Cornell William Brooks, former president and CEO of the NAACP.Arguing that direct payments to African Americans are not the most effective means of addressing the legacy of slavery, and that they could have unintended consequences is Randall LeRoy Kennedy is an American law professor and author at Harvard University.

The Biden administration is expected to give even greater weight to the negative effects of greenhouse gas emissions as it works on developing new “social costs” of carbon, methane and nitrous oxide that will impact government regulations. President Biden took the first step toward establishing a new formula when he revived an interagency group to work on calculating the costs of greenhouse gas emissions shortly after taking office. The costs are used by federal agencies to determine the benefit of regulations that prevent the gases from being emitted into the atmosphere, or, conversely, how great the costs are for not limiting emissions...Some experts noted that another challenge with social costs is ensuring they last longer than one administration. Achieving that goal, they said, is best achieved by having a strong scientific basis for the final numbers. “Courts do not look kindly on agencies that just swing dramatically back and forth on how they approach rulemaking,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. “What they’re looking for is a process that is backed up by objective facts and science.”