Media Mentions

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.

Eighty-seven former federal prosecutors are pushing the Biden Justice Department to end a Trump-era “felon-in-possession” initiative that lets prosecutors shift gun cases out of D.C.’s Superior Court and into federal District Court, where sentences can be twice as long. In a letter to Attorney General Merrick Garland and Acting U.S. Attorney Channing D. Phillips, the lawyers wrote, “Excessive sentences exacerbate the underlying drivers of violence, producing shame, isolation, stunted economic opportunity, and exposure to further violence.” They added that the policy also increases racial inequity... “The civil rights groups are against it, the locally elected officials are against it, and scores of former federal prosecutors are against it,” wrote Harvard Law Professor Andrew Crespo, who is director of the Institute to End Mass Incarceration. “The Biden administration could easily and immediately end it. Instead, they came to court today to defend it.”

As the Centers for Disease Control and Prevention continues to relax safety measures for people who are fully vaccinated against the coronavirus and the country begins to reopen, many employers, businesses, families and friend groups are finding themselves in the at-times uncomfortable position of having to ask about others’ vaccination statuses. Some Americans, including Rep. Marjorie Taylor Greene (R-Ga.), are balking at such questions and are claiming that asking about or requiring proof of vaccination is a violation of the HIPAA federal privacy law...HIPAA has become one of the “most misunderstood statutes in existence,” said Glenn Cohen, a Harvard Law School professor who is an expert on health law and bioethics. “People think it does a lot more than it’s actually doing.” ... Employers are also legally allowed to ask about or require proof of vaccination from employees. In a December guidance, the Equal Employment Opportunity Commission, which enforces federal workplace anti-discrimination laws, essentially confirmed that “there’s no indication that there’s any federal law that would be violated by the employer asking this question,” Cohen said.

This week's rousing stock market debut of dairy alternative Oatly underlines anew people's enduring appetite for vegan products. If anything, that hunger has grown during the Covid-19 pandemic...The surge also came as production problems, due partly to Covid-19 outbreaks, temporarily curtailed conventional meat availability, though supplies later stabilized. "The pandemic opened people's eyes to the risks of the meat industry, the relative fragility of its value chain," said Jan Dutkiewicz, a fellow at Concordia University and Harvard Law School who writes often on food and environmental studies...Dutkiewicz notes that the conventional meat sector operates on relatively narrow profit margins, with large volumes needed to the ventures economical. If alternative proteins gain enough ground, "there may be a point where many large companies will start not just diversifying into alternative proteins but will start divesting from their existing holdings in protein," he said. Dutkiewicz drew a comparison with large automotive companies now phasing out the internal combustion engine and transitioning to electric cars. But, he cautioned, "we are at the very, very early stages of this."

Dozens of constitutional experts are sending a letter telling congressional leaders they have the authority to make the nation's capital the 51st state. "As scholars of the United States Constitution, we write to correct claims that the D.C. Admission Act is vulnerable to a constitutional challenge in the courts," write the 39 signatories, who include Laurence Tribe of Harvard Law, Erwin Chemerinsky of UC Berkeley Law, Larry Sabato of the University of Virginia and Leah Litman of the University of Michigan Law School. They argue that there is "no constitutional barrier" to the District's "entering the Union through a congressional proclamation, pursuant to the Constitution's Admissions Clause, just like the 37 other states that have been admitted since the Constitution was adopted." The letter is a new entry into the heated battle over whether Congress can — and should — make this city of about 700,000 residents a state, with equal representation on Capitol Hill. It is likely to fuel the debate over legal questions that have left proponents struggling to find a path to get the legislation on the desk of President Joe Biden, who has endorsed statehood.

An op-ed by Noah Feldman: Over the next year, you’re going to hear a lot about the Mississippi abortion case that the Supreme Court has agreed to hear. It’s called Dobbs v. Jackson Women’s Health Organization — and the key word at the center of the discussion is going to be “viability.” If the Supreme Court sides with the pro-life side, you can expect to see more state bans on early abortion like the one Texas Governor Greg Abbott just signed into law, which bars abortions after week six of pregnancy. That’s because since the 1973 Roe v. Wade decision, the Supreme Court has held that there exists a fundamental constitutional right to terminate a pregnancy before the fetus would be viable — that is, able to survive outside the womb. Currently, medical consensus puts viability at 23 to 24 weeks gestation. The Mississippi law prohibits abortion after 15 weeks, long before viability. In taking the case, the Supreme Court said it would consider “whether all pre-viability prohibitions on elective abortions are unconstitutional.” To understand the nature of the debate, we need to begin with a simple fact about Roe that is often forgotten: The ruling was a compromise. The Supreme Court did not say that a woman had an absolute right to choose whether and when to end her pregnancy. Nor did it permit states the unfettered capacity to limit abortion.

An article by Ashley Nunes: Earlier Sunday, a commercial jet — scheduled to fly from Greece to Lithuania — made an emergency landing in Belarus. The intended destination of the Ryanair flight was Vilnius. Passengers and crew members ended up in Minsk instead. Radar data shows the plane flying through Belarusian airspace headed toward Lithuania. As the plane approaches the Lithuanian border, however, it makes a sharp right turn and heads toward the Belarusian capital. Belarusian state media outlets say the diversion was prompted by a bomb scare, which caused local authorities to scramble a military jet to escort the plane to Minsk. After the plane landed, passengers and crew members underwent additional security screening and were subject to “verification activities.” Luggage and personal items were also subject to additional security checks. Among the passengers was Roman Protasevich. The Belarusian journalist is the former editor of NEXTA, the opposition Telegram network, and has long been critical of the Belarusian political establishment.

Martha Minow, the 300th Anniversary University Professor and former Dean of Students at Harvard Law School, has taught at the law school since 1981. Before teaching at Harvard, Minow clerked for Judge David Bazelon of the United States Court of Appeals for the D.C. Circuit and for U.S. Supreme Court Justice Thurgood Marshall. She is an expert in human rights law and minority advocacy and has written numerous books and scholarly articles. Minow has also served on the Independent International Commission Kosovo, has received nine honorary degrees from schools around the world, and was appointed to the Legal Services Corporation by President Barack Obama in 2009. She received her undergraduate degree from the University of Michigan, her master’s degree in education from Harvard, and her law degree from Yale Law School. This interview was conducted in March 2021. It has been edited for length and clarity.

A quarter of the deep links in The New York Times’ articles are now rotten, leading to completely inaccessible pages, according to a team of researchers from Harvard Law School, who worked with the Times’ digital team. They found that this problem affected over half of the articles containing links in the NYT’s catalog going back to 1996, illustrating the problem of link rot and how difficult it is for context to survive on the web. The study looked at over 550,000 articles, which contained over 2.2 million links to external websites. It found that 72 percent of those links were “deep,” or pointing to a specific page rather than a general website. Predictably, it found that, as time went on, links were more likely to be dead: 6 percent of links in 2018 articles were inaccessible, while a whopping 72 percent of links from 1998 were dead. For a recent, widespread example of link rot in practice, just look at what happened when Twitter banned Donald Trump: all of the articles that were embedded in his tweets were littered with gray boxes.

Sally Falk Moore, Harvard University Affiliated Professor at Harvard Law School and a leading figure in the field of legal anthropology, died May 2 at the age of 97.

Incoming Harvard Alumni Association president Vanessa Liu ’03 wants to catalyze connection — and action — within the HAA community.

An article by John Bowers, Clare Stanton, and Jonathan Zittrain: Hyperlinks are a powerful tool for journalists and their readers. Diving deep into the context of an article is just a click away. But hyperlinks are a double-edged sword; for all of the internet’s boundlessness, what’s found on the Web can also be modified, moved, or entirely vanished. The fragility of the Web poses an issue for any area of work or interest that is reliant on written records. Loss of reference material, negative SEO impacts, and malicious hijacking of valuable outlinksare among the adverse effects of a broken URL. More fundamentally, it leaves articles from decades past as shells of their former selves, cut off from their original sourcing and context. And the problem goes beyond journalism. In a 2014 study, for example, researchers (including some on this team) found that nearly half of all hyperlinks in Supreme Court opinions led to content that had either changed since its original publication or disappeared from the internet. Hosts control URLs. When they delete a URL’s content, intentionally or not, readers find an unreachable website. This often irreversible decay of Web content is commonly known as linkrot. It is similar to the related problem of content drift, or the typically unannounced changes––retractions, additions, replacement––to the content at a particular URL.

Can your employer require a vaccine? The short answer is yes. As we continue to push toward a new normal, many employers are weighing whether or not to require employees to receive a COVID-19 vaccine in order to return to work. This week Delta Airlines became the largest U.S. company to announce all new employees must be vaccinated. Producers of the Broadway hit Hamilton have also mandated cast and crew be vaccinated. What rights or recourse do employees have? If your company requires it, there’s not much you can do about it—with a few exceptions. “Employers can demand proof of vaccination,” said Harvard Law Professor Glenn Cohen. “You, as an employer, can set conditions for work.” Cohen is an expert on health law and bioethics. He says that while many employees believe HIPAA laws may protect them from having to provide proof of vaccination, that’s just not the case. “HIPAA is largely irrelevant [in this case],” Cohen said. “Most of these employers are not going to be covered entities under the statutes, so they’re not even covered.” Cohen says HIPAA only applies in health care settings. “Health information generated in an encounter with a physician [would be covered by HIPAA],” he said. “That’s not what a vaccination card is.”

The Center for Health Law and Policy Innovation of Harvard Law School (CHLPI) and the National Viral Hepatitis Roundtable (NVHR) today released a new progress report detailing the changes to hepatitis C treatment access in Medicaid programs since first publishing an analysis in 2017. The Hepatitis C: State of Medicaid Access May 2021 National Progress Report (Progress Report) demonstrates that while there is better access to hepatitis C (HCV) treatment today, discriminatory practices persist in some state Medicaid programs. In particular, sobriety restrictions continue to undermine public health efforts to eliminate hepatitis C in the U.S. The State of Hepatitis C has since 2017 assessed and graded Medicaid programs in all 50 states plus Puerto Rico and Washington, D.C. according to its overall “state of access” for HCV treatment. The State of Hepatitis C focuses on three of the most significant restrictive criteria that Fee-for-Service Medicaid programs use as methods of rationing access to the HCV cure: 1) fibrosis (liver damage or disease progression required prior to treatment); 2) sobriety (periods of abstinence from alcohol and/or substance use required); and 3) prescriber (prescribing eligibility limited to certain categories of specialist practitioners). The Progress Report shows that advocacy and litigation have driven improvement to treatment access.