Media Mentions

Cedar Point Nursery in far northern California, the birthplace of baby strawberry plants that feed a multi-billion dollar fruit industry, is leading a high-stakes legal battle over labor unions and property rights with potentially sweeping implications far beyond agriculture. The U.S. Supreme Court on Monday will hear arguments in Cedar Point's challenge to a 45-year-old California law that authorizes union organizers to access farm property for 120 days a year, three hours a day, during non-work periods to meet with workers...Legal scholars say a decision that strikes down the California union access law could have potentially major implications for health and safety inspections, home visits by social workers and anti-discrimination rules nationwide. "I'm sure many restaurants would say the same thing about food inspectors and say, you know, we want to allow customers on our property, we just don't want to allow food inspectors to check to see if there are rats running around the kitchen," said Nikolas Bowie, a Harvard Law School professor and expert in labor law. "That ultimately is what's at stake here."

Students who attended colleges that have misled them have the right under the law to have their federal student loans discharged, but over the past few years, accessing that relief has been nearly impossible, despite evidence of malfeasance by their schools, new documents suggest. More than 200 borrowers who attended a school where an admissions representative pled guilty to making a false statement in an application for federal student aid had their applications for relief denied by the Department of Education, according to the documents. At another school, more than 300 students made similar claims, alleging they were misled about their prospects for job placement, but it wasn’t enough to “establish a pattern or practice of this type of misconduct.” The result: Since December 2019, roughly 90% of borrowers who say they’ve been scammed by their schools have had their applications for student loan relief denied, according to an analysis of government data by Harvard Law School’s Project on Predatory Student Lending. The revelations about the challenges borrowers face accessing relief were contained in court documents filed Thursday evening as part of a class action lawsuit filed by The Project on Predatory Student Lending on behalf of 170,000 former students who’ve applied for borrower defense — the process borrowers can use to have their federal debt discharged if they’ve been misled by their school — but have had their applications stalled or denied.

Constitutional law expert Laurence Tribe said on MSNBC Sunday that evidence appears to support sedition charges against former President Donald Trump regarding his role in the Capitol riot. While various financial cases against Trump are very strong, the Harvard University law professor said they won’t hold him accountable for the abuses he allegedly committed as president. However, far more serious for Trump was the Fulton County investigation into his efforts to overturn Georgia’s vote for Joe Biden for president in the 2020 election. If Trump is convicted of “conspiracy to commit sedition — which is a fancy way of talking about trying to prevent the government from functioning,” — Trump could get 20 years in prison, Tribe said. A conviction on another charge, which applies to “anyone who gives aid or comfort to insurrection or rebellion,” would be punishable by up to 10 years and permanent disqualification from ever holding any state or federal office. It’s that second charge where the evidence “seems to point to the president’s guilt” concerning the Capitol riot on Jan. 6, Tribe said.

A letter by Nancy Gertner and John Reinstein: The Globe’s March 15 article — front page, above the fold — screams that 21 convicted murderers have been freed under the state’s compassionate release law (“Compassionate, but to whom?: As 21 murderers receive medical parole, critics and families demand change in law”). Quoting the law’s critics, it suggests that their release ignored their serious offenses, their real medical condition, and the victims’ concerns. Nothing could be further from the truth. Even before the pandemic, medical parole reflected the Legislature’s recognition that compassionate release was critical. Why? Because we have the highest percentage of prisoners over 55 in the country. Because the cost of housing them is three times that of an average adult prisoner. Because keeping them in prison diverts resources from other programs. We have more older prisoners not because of an elderly crime wave, but because we lead the country in the percentage of sentences of life without parole. And racial disparities — a scandal throughout the system — are worse for lifers. The real story is not how many have been released but how few, especially now. Nineteen people have died in state prisons since the coronavirus pandemic’s start, not including those who died after release. The notion that paroling those so debilitated threatens public safety is absurd. Piling on, there was the gratuitous reference to the release from prison of former House speaker Salvatore F. DiMasi (disclosure: we both worked on DiMasi’s case). Battling two forms of cancer, DiMasi was released early on an eight-year sentence. The article adds, “More than four years later, DiMasi is now a registered lobbyist,” as if he had gamed the system. No one who saw him in prison, emaciated, barely able to stand, would believe that. Now, his cancers in remission, his prison term over, he is a lobbyist. Who for? The Massachusetts Housing and Shelter Alliance, working on housing for the homeless. Punishment is one thing; cruelty is another.

Students who were defrauded by their colleges and received only partial relief from their federal loans could now see them fully canceled, the Biden administration announced Thursday, reversing a Trump administration policy. The change could lead to $1 billion in loans being canceled for 72,000 borrowers, all of whom attended for-profit schools, the Education Department said...In addition to having their loans fully canceled, students will be reimbursed for any payments made on the loans and have their eligibility for federal student aid reinstated. The department said it also would ask credit bureaus to remove any negative ratings tied to the loans. “Abandoning partial relief is a strong start for a narrow subset of borrowers, but what we need from the Education Department is an overhaul of the current borrower defense process,” said Toby Merrill, director of the Project on Predatory Student Lending, which represents former for-profit college students. "The previous administration turned borrower defense into a total sham that was rigged to deny claims without any true consideration," Merrill said. "The Biden-Harris administration must now address these failings or else perpetuate a system that is stacked against the very students they are supposed to protect.”

The San Francisco school board is on the ropes after a judge ordered it to vacate a resolution scrubbing 44 public schools of their historical namesakes, or explain why it should not be compelled to do so. It’s uncommon for a judge to rule so quickly, as public school alumni groups and the San Francisco Taxpayers Association just filed their petition seeking the decision’s repeal on the grounds that it was done without due process. In an interview Friday, attorney and constitutional law scholar Laurence Tribe said the order from Judge Ethan Schulman bolstered his conviction that the petitioners he represents have a strong case that the school board’s renaming process was unlawful. “It vindicated my sense that this is an extremely strong and unambiguously correct case,” he said. “That’s why I wanted to become involved, because I thought the issues were so important.” ... “The whole process was poisoned from the beginning,” Tribe said. A Harvard Law School professor emeritus who has argued innumerable cases before the U.S. Supreme Court, Tribe said this case piqued his interest for several reasons. “One of them is I’m very interested in the issue of how to achieve racial justice in a world where all sorts of things have been named after racists and Confederate soldiers, and much of that renaming happened not at the time of the Civil War, but as part of the opposition to racial progress in the 1960s,” he said. “So I’m not one of those people who say you should never take down a Robert E. Lee statue.” The issue is also personal for Tribe, a San Francisco native who graduated from Abraham Lincoln High School.

An essay by Jill Lepore: In 1947, Kurt Gödel, Albert Einstein, and Oskar Morgenstern drove from Princeton to Trenton in Morgenstern’s car. The three men, who’d fled Nazi Europe and become close friends at the Institute for Advanced Study, were on their way to a courthouse where Gödel, an Austrian exile, was scheduled to take the U.S.-citizenship exam, something his two friends had done already. Morgenstern had founded game theory, Einstein had founded the theory of relativity, and Gödel, the greatest logician since Aristotle, had revolutionized mathematics and philosophy with his incompleteness theorems. Morgenstern drove. Gödel sat in the back. Einstein, up front with Morgenstern, turned around and said, teasing, “Now, Gödel, are you really well prepared for this examination?” Gödel looked stricken. To prepare for his citizenship test, knowing that he’d be asked questions about the U.S. Constitution, Gödel had dedicated himself to the study of American history and constitutional law. Time and again, he’d phoned Morgenstern with rising panic about the exam. (Gödel, a paranoid recluse who later died of starvation, used the telephone to speak with people even when they were in the same room.) Morgenstern reassured him that “at most they might ask what sort of government we have.” But Gödel only grew more upset.

Last fall, two students from 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.

The Navajo & Hopi Families Covid-19 Relief Fund has raised nearly $18 million, far exceeding the wildest expectations Ethel Branch ’08, former attorney general of the Navajo Nation, who began the fund in hopes of raising $5000 to assist struggling Navajo and Hopi communities.

Jury selection is now proceeding for the upcoming trial of Derek Chauvin, the former Minneapolis police officer charged with killing George Floyd, in a horrific incident that touched off nationwide protests against racism and police brutality. Many aspects of the process seem calculated to exclude not only potential jurors who have strong feelings about the specific case (and thus might be biased), but also those who have any kind of relevant background knowledge about criminal justice, scientific evidence, chokeholds, and other matters. In recently published articles, both Harvard Law School Professor Noah Feldman and The Week columnist Bonnie Kristian argue that this situation highlights the need to change selection policies that have the effect of dumbing down juries by excluding those with the greatest potential knowledge and insight...Feldman explains how this tendency undermines a key function of jurors in the Anglo-American legal tradition, which was in part to bring to bear the collective knowledge and insight of the community: “The logic [of current practices] 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.”

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…