Media Mentions

McDonald’s Corp. general counsel and executive vice president Jerry Krulewitch has retired at the suggestion of his doctors after he was diagnosed with Parkinson’s disease, according to a securities filing from the fast food giant. The Chicago-based fast food company’s U.S. general counsel Mahrukh Hussain is serving as interim general counsel during the search for Krulewitch’s replacement, McDonald’s said in the Thursday filing...Krulewitch’s decades-long career with McDonald’s officially ended Oct.12. His run at the company began in 2002, when he joined as vice president of litigation. He became corporate general counsel and secretary in 2017. He was diagnosed with Parkinson’s, a condition that impacts the nervous system, earlier this year, according to a message to employees from McDonald’s CEO Chris Kempczinski viewed by Bloomberg Law...McDonald’s in recent years has become one of the highest profile corporations battling over the question of joint employment, or whether a franchise company is legally responsible as an employer of workers at restaurants owned by franchisees...However, franchisors like McDonald’s still have a tremendous amount of control over their franchisees, said Terri Gerstein, the director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program as well as a senior fellow at the Economic Policy Institute. “To me, it’s clear that in many instances, they should be found a joint employer,” Gerstein said. “But certain courts have allowed the franchise model to be a way for companies to evade the responsibility for ensuring a franchisee complies with the law.”

Environmentalists are sounding the alarm over Judge Amy Coney Barrett’s comments this week casting doubt on the science of climate change, saying her remarks should disqualify her from sitting on the Supreme Court. During two days of questioning at her Senate confirmation hearing, Barrett called climate change a “contentious matter of public debate” and said she didn’t think her “views on global warming or climate change are relevant to the job I would do as a judge.” Earlier, she told the Senate Judiciary Committee she did not have “firm views” on climate change. Her comments sent ripples through the scientific community given the overwhelming evidence of human-driven climate change...Joseph Goffman, executive director of Harvard Law’s Environmental and Energy Law Program, warned that if the clean energy rule case made it to the Supreme Court, industry briefings on the power plant rule could lead to questions on a court precedent that established the EPA’s authority to regulate greenhouse gas emissions. “If the court decides to take up again the fundamental question that was decided in Massachusetts v. EPA, that’s where you would start to worry about her professed doubts about the science of climate change,” added Goffman, who also served as an EPA lawyer during the Obama administration. However, he said Barrett’s views on climate change wouldn’t necessarily mean she would rule to overturn climate or emissions-related cases; whether she feels an obligation to continue with past precedent would be another major factor. “If the premise of the issue was that human-caused climate change was an established fact, I think she would be as much likely to be bound by precedent...as she would by her own views of science,” he said, adding that the “specific legal context” of the issues would also be important determinants.

An article by Sharon Block: The September unemployment numbers provided a lot of bad news for the economy overall: decreasing rate of new jobs being created, rising number of permanent layoffs and a persistently high unemployment rate. The most shocking number from September’s report, however, was the number of women who left the labor market. More than 800,000 womenhave given up trying to find a job. During the pandemic recession, women’s labor force participation – the percentage of women holding jobs or looking for jobs – is lower than at any point since the late 1980’s. That marks a generation of progress lost in just six months. This dramatic drop in women’s labor force participation is just the latest reflection of how poorly women have fared in the pandemic recession. Looking back to the beginning of the pandemic, we can see thatwomen’s unemployment rate has been consistently higher than men’s as industries with predominantly female workforces have been hit the hardest by the pandemic. These alarming statistics exist in the context of many reports of how much harder it has become for women to balance their job and caregiving responsibilities. How many women are doing double duty – managing their jobs and Zoom school for their children at the same time? How many women have given up going for that next promotion or new job or even asking for a raise because they are barely able to get through these exhausting days?

An op-ed by Noah Feldman: Last night, President Donald Trump took a tiny step back from his repeated refusals to say he’ll leave office if he loses the election. Yet he continued to portray a fair election as nearly impossible. The result is to continue to cast doubt on the election result and give himself room to challenge it if he loses the election “unfairly.” These claims are deeply harmful to our democracy — that much should be obvious. But it’s useful to divide the harm into two parts, to understand how worried we should be and figure out what we should do about it. Merely saying that he might not agree to leave office violates our unwritten democratic norms. Actually not leaving would violate our written laws. The first Trump can do alone, and he already has, on several occasions. That alone throws public confidence in our system into disarray. But the second would be far worse. Claiming election fraud and refusing to accept a clear loss would precipitate a constitutional crisis on a scale not seen since the Civil War. Fortunately, Trump can’t do it alone. He would need the collusion of hundreds, maybe thousands of other people in the government, from poll officials to state legislators to members of Congress. If that happens, our democracy will not just be under threat from an irresponsible leader. It will be on the edge of collapse. This possibility is vanishingly small.

Facebook Inc. this year has made a flurry of new rules designed to improve the discourse on its platforms. When users report content that breaks those rules, a test by The Wall Street Journal found, the company often fails to enforce them. Facebook allows all users to flag content for review if they think it doesn’t belong on the platform. When the Journal reported more than 150 pieces of content that Facebook later confirmed violated its rules, the company’s review system allowed the material—some depicting or praising grisly violence—to stand more than three-quarters of the time...Facebook’s content moderation gained renewed attention Wednesday when the company limited online sharing of New York Post articles about the son of Democratic presidential nominee Joe Biden, saying it needed guidance from third-party fact-checkers who routinely vet content on the platform. On a platform with 1.8 billion daily users, however, making a rule banning content doesn’t mean that content always disappears from Facebook. “Facebook announces a lot of policy statements that sound great on paper, but there are serious concerns with their ability or willingness to enforce the rules as written,” said Evelyn Douek, a Harvard University lecturer and researcher at the Berkman Klein Center for Internet and Society who studies social-media companies’ efforts to regulate their users’ behavior.

Much has been written about the threat Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett, poses to the right of women to control our own bodies. It is obvious that the rush to confirm her in time to hear the Republican effort to strike down the Affordable Care Act poses a threat to everyone with preexisting conditions. But is she also a threat to our Social Security? Acclaimed, nationally-recognized Constitutional law scholar, Harvard Law School Professor Laurence H. Tribe says yes, warning: “Don’t underestimate how much a Court remade in Trump’s image could dismantle. Even Social Security could be on the chopping block.” Similarly sounding the alarm is University of Florida chaired law professor and Harvard-trained Ph.D. economist Professor Neil H. Buchanan, who has written: “[O]ne of the most consequential results of Republicans’ theft of a Supreme Court seat could be to seriously undermine — or even declare unconstitutional — one or more of Social Security, Medicare, and Medicaid.” Coming from such knowledgeable sources, those are warnings all of us should take seriously. Because of Social Security’s overwhelming popularity among even self-described Tea Partiers, conservative politicians generally say that they love Social Security. But at candid moments, they make clear that they would like the courts to do what they have been seeking (so far unsuccessfully) to do sneakily, behind closed doorsand by “starving the beast”: End Social Security.

President Trump called Facebook and Twitter “terrible” and “a monster” and said he would go after them. Senators Ted Cruz and Marsha Blackburn said they would subpoena the chief executives of the companies for their actions. And on Fox News, prominent conservative hosts blasted the social media platforms as “monopolies” and accused them of “censorship” and election interference. On Thursday, simmering discontent among Republicans over the power that Facebook and Twitter wield over public discourse erupted into open acrimony. Republicans slammed the companies and baited them a day after the sites limited or blocked the distribution of an unsubstantiated New York Post article about Hunter Biden, the son of the Democratic presidential nominee, Joseph R. Biden Jr...Late Thursday, under pressure, Twitter said it was changing the policy that it had used to block the New York Post article and would now allow similar content to be shared, along with a label to provide context about the source of the information. Twitter said it was concerned that the earlier policy was leading to unintended consequences. Even so, the actions brought the already frosty relationship between conservatives and the companies to a new low point, less than three weeks before the Nov. 3 presidential election, in which the social networks are expected to play a significant role. It offered a glimpse at how online conversations could go awry on Election Day. And Twitter’s bob-and-weave in particular underlined how the companies have little handle on how to consistently enforce what they will allow on their sites. “There will be battles for control of the narrative again and again over coming weeks,” said Evelyn Douek, a lecturer at Harvard Law School who studies social media companies. “The way the platforms handled it is not a good harbinger of what’s to come.”

An op-ed by Laurence Tribe and Joshua Geltzer: There are many ways a future presidential administration could pursue accountability for Trump-era transgressions. Inspectors general at a range of federal agencies, the Office of Government Ethics, investigators and prosecutors at the Justice Department, or even some new truth commission might each lay claim to some aspect of what is sure to be a considerable task. Here’s who should stay out of it: the White House. The next president will face intense pressure to meddle in the quest for accountability, and he may be tempted — for good reason. Accountability for the Trump years is essential. Under President Trump, the government’s political leaders have abused their powers and the public’s trust in appalling ways, including for personal profit, political benefit and even sheer indulgence. The next administration must not, for our democratic future, treat Trump as having simply made some foolish policy calls or adopted some lousy legal positions. Trump is something worse: a president who has exploited the country rather than serving it; whose behavior in office has been corrupt, improper, unethical and possibly criminal. We need to know how it happened so we can stop it from happening again. But the whole point of such work is to get beyond politics. Political differences on, say, health care, foreign policy and immigration account for the ordinary swings between administrations of different parties. The White House drives those changes, because they represent the campaign platform that got the new president elected, and because it frequently takes White House leadership, even pressure, to steer the federal bureaucracy in a new direction.

James Friedlander '66 writes: “Retirement is not what it used to be. Have taken on two part-time general counsel roles this year. One is with a new cannabis company involved in the cultivation, processing, and sale and distribution of CBD oil and other cannabis products. The other is general counsel with a new company treating mentally ill patients in the U.K. with drugs and therapies. In addition to many hours of walking each week.”

Christopher A. Edwards ’98 has been promoted from counsel to the New Jersey attorney general to executive assistant attorney general (for the state of New Jersey). He advises the attorney…

Grace Nosek '14 is the author of “American voters in Canada could hold the key to our climate future, and many don't even know it,” an op-ed published by the Canadian Broadcasting Corp. on September 25, 2020. The piece explores how inextricably linked the U.S. and Canada are when it comes to the climate crisis and the profound gap between the climate plans of President Donald Trump and Democratic presidential candidate Joe Biden.

In his new book “Persuasion: Getting to the Other Side,” Joseph William Singer, Bussey Professor of Law at Harvard Law School, describes the methods lawyers use to persuade and engage in civil discourse that all Americans, including politicians, could learn from.

The United States Supreme Court rejection of a petition to hear a case on Indiana’s Right to Farm Act last week is the latest development in an ongoing legal battlebetween environmental and agriculture groups. Both sides are looking at the upcoming state legislative session to push for policies helping those they represent. The five-year legal battle focused on confined animal feeding operations, or CAFOs, and their effect on nearby residential property values and quality of life. The Harvard Animal Law and Policy Clinic joined as co-counsel with the Hoosier Environmental Council on the Supreme Court petition representing two Hendricks County couples who sued a neighboring hog farm in 2015 saying it is making it difficult for them to eat or sleep. “For farmers across the state, they get very great comfort in knowing that if they if they do things, right, that they should enjoy the protections, the Right to Farm Act and be able to defeat nuisance actions,“ said Chris Braun, a lawyer with Plews Shadley Racher + Braun who represented the Hendricks County CAFO owners. Kim Ferraro is a lawyer with the Hoosier Environmental Council and represented the residents living near the CAFO who filed the complaint. “Obviously we're saddened by the decision. The filing with the U.S. Supreme Court we knew was a long shot,” said Ferraro, referring to the thousands of petitions rejected by the U.S. Supreme Court. “The fact that the court didn't take the case, does not mean that the petition didn't have merit.” Ferraro said the challenge with proving negligence in this case is due to a lack of regulations on CAFOs.

Two hours before Donald Trump boosted the standing of white supremacists at the last Presidential debate, Facebook told Rashad Robinson, the president of the civil-rights organization Color of Change, that it would not remove a potentially incendiary and racially tinged Trump-campaign post. The message in question showed the President’s eldest son, Donald Trump, Jr., calling upon “an army” of Trump supporters to show up at polls across the country, to “protect” the election. The Black community, Robinson would later say, saw the post as a “threat to our ability to express our will for a better future.” But the company, which has become a de-facto arbiter of political speech, interpreted the takedown request as a matter of semantics; Robinson said that it quibbled over the meaning of “army.” Robinson recounted the experience at the launch, over Zoom, of the Real Facebook Oversight Board, an international, ad-hoc cadre of activists and academics convened by the British investigative journalist Carole Cadwalladr... “Our group has come together for one purpose,” Shoshana Zuboff, a Harvard Business School professor emerita and the author of “The Age of Surveillance Capitalism,” said on the Zoom call. “We demand comprehensive action to insure that Facebook cannot be weaponized to undermine the vote.” Jonathan Greenblatt, the director of the Anti-Defamation League, which has been tracking hate groups for decades, observed that Facebook “actively and knowingly has facilitated the flow of poison into the population, and enabled waves of anti-Semitism and racism, Holocaust denialism and Islamophobic conspiracies, disinformation and extremism.” The Harvard Law School professor Laurence Tribe called his participation in the Real Facebook Oversight Board “probably the most important effort in my fifty-year career in the law.” The Real Facebook Oversight Board is a self-appointed proxy for the official Facebook Oversight Board, which was designed to function as a kind of independent appeals court, adjudicating various challenges to the company’s decisions on whether to remove content.

A podcast by Noah Feldman: Introducing Brave New Planet, a seven-part series that delves deep into powerful technologies changing our world. They have amazing potential upsides, but we can’t ignore the serious risks. Hosted by Dr. Eric Lander, Brave New Planet is a partnership between the Broad Institute, Pushkin Industries, and the Boston Globe. In this episode, we're talking about how it's becoming more common to make convincing -- but false -- videos through artificial intelligence. These “deepfakes” can be useful in art, education, and therapy. But they can also be used to harm the reputation of an ex-partner or a stranger. Could they be weaponized to provoke international conflicts or swing elections? When seeing is not believing, who can we trust, and can democracy and truth survive?

An article by Hagop Toghramadjian ‘22 and Kathleen Bailey: Coverage of the decades-long Armenia–Azerbaijan conflict often focuses on regional implications, repeating customary lines about potential tensions between Russia and Turkey and mentioning the proximity of Iran. But the scale of the fighting since September 27 is striking enough to justify attention on its own. As of October 12, at least 500 Armenian soldiers have been killed in nonstop firefights along a 100-mile front (Azerbaijan does not release casualty information). Azerbaijan has unleashed a campaign of indiscriminate cluster bombing against Armenian civilian centers; Stepanakert (population 55,000) is reduced to rubble.  In Armenia, where thousands of volunteers have streamed to the front, the battle is grimly referred to as the goyamart: a fight for survival. In just two weeks, the clashes have already developed into one of the largest conventional military engagements of the 21st century. In the name of hard-headed “realism,” important voices in the D.C. foreign-policy establishment are pressing a dangerously simplistic view of the conflict. To them, there is nothing much to discuss: Azerbaijan is “on our team” against Iran and Russia, so we should cheer for its success against the outnumbered Armenians. It’s irrefutable “geopolitical math.” The assumptions underlying this simplistic interpretation are faulty. As we discuss below, Azerbaijan is in fact deceptively close to Iran and Russia. Meanwhile, Armenia’s fundamental social and political orientations promise to make it a much more sincere and durable partner of the United States. U.S. support for Azerbaijan has high stakes and real consequences. For fiscal year 2020, in response to rising tensions with Iran, the Trump administration allocated over $100 million in military aid to Azerbaijan — significantly more than to any other country in the region. This massive windfall was entrusted to Azerbaijan’s notoriously corrupt Aliyev regime, which has maintained power for nearly three decades by hoarding oil riches, stoking anti-Armenian chauvinism, eliminating press freedom, and perfecting brutally repressive techniques.

An op-ed by Nancy Gertner: In his 2016 book “The Undoing Project,” Michel Lewis described the work of psychologists Daniel Kahneman and Amos Tversky as “undoing” assumptions about human decision-making. The title is also apt for what is unfolding before the Senate today: the Republican Party’s efforts to remake the Supreme Court into a conservative branch, first with the addition of Justices Neil Gorsuch and Brett Kavanaugh, and now with the nomination of Judge Amy Coney Barrett. This undoing project is not just about undoing the right to choose abortion, or the right to same-sex marriage — although that much is clear. Barrett, in an article entitled “Catholic Judges in Capital Cases,” distinguished between a judge’s obligations in death penalty cases and abortion cases. Abortion, she said, was “always immoral,” the church’s teachings constituting a “flat prohibition.” In contrast, the church treated the death penalty as permissible in cases of “absolute necessity.” Barrett’s mentor, the late Supreme Court Justice Antonin Scalia, whose originalist judicial philosophy she touts, stridently dissented when the court ruled that the state cannot criminalize homosexual conduct or prohibit same-sex marriage. On the Affordable Care Act, Barrett accused Chief Justice John Roberts of having “pushed” it “beyond its plausible meaning to save the statute.” But this undoing project is broader — it’s a return to an era decades ago, when a conservative pre-New Deal Supreme Court used a contested constitutional doctrine about freedom of contract — the right of workers and bosses to contract for the terms of employment — to invalidate statutes requiring improved working conditions, higher wages, and limited hours. Recently, the court’s conservative majority held that the requirement that public employees pay agency fees to support their union violated the free speech rights.

Facebook and Twitter took action on Wednesday to limit the distribution of New York Post reporting with unconfirmed claims about Democratic presidential nominee Joe Biden, leading President Trump's campaign and allies to charge the companies with censorship. Both social media companies said the moves were aimed at slowing the spread of potentially false information. But they gave few details about how they reached their decisions, sparking criticism about the lack of clarity and consistency with which they apply their rules. The New York Post published a series of stories on Wednesday citing emails, purportedly sent by Biden's son Hunter, that the news outlet says it got from Trump's private lawyer, Rudy Giuliani, and former Trump adviser Steve Bannon...Facebook has been warning about the possibility of "hack and leak" operations, where stolen documents or other sensitive materials are strategically leaked — as happened in 2016 with hacked emails from the Democratic National Committee and Hillary Clinton's campaign. But the companies' moves on Wednesday drew criticism from some experts, who said Facebook and Twitter needed to more clearly explain their policies and how often they apply them. "This story is a microcosm of something that I think we can expect to happen a lot over the next few weeks and, I think, demonstrates why platforms having clear policies that they are prepared to stick to is really important," said Evelyn Douek, a Harvard Law School lecturer who studies the regulation of online speech. "It's really unclear if they have stepped in exceptionally in this case and, if they have, why they've done so," she said. "That inevitably leads to exactly the kind of outcry that we've seen, which is that they're doing it for political reasons and because they're biased."

An op-ed by Jeannie Suk Gersen: My one real conversation with Justice Ruth Bader Ginsburg took place in 2004, when I was a law clerk for Justice David Souter. Ginsburg invited my colleagues and me for tea in her chambers, where she served pastries baked by her husband. Ginsburg recalled the initial revelation of the term “sexual harassment,” which put a name to a phenomenon that, she said, “every woman” understood. Among her stories was one that is widely known today, about the sexism of the nineteen-fifties. When Ginsburg was a student at Harvard Law School, the handful of women in her class were invited to a gathering at which the dean asked each of them to justify taking a spot that could have gone to a man. Four decades later, when Justice Byron White, who had dissented in Roe v. Wade, retired from the Supreme Court, the spot that opened up did not go to a man but to Ginsburg, who by then was a judge on the D.C. Circuit and a longtime heroine of the women’s movement. And, in just a few weeks, her seat will likely be occupied by another woman, the Court’s fifth ever: Amy Coney Barrett, another circuit-court judge and a former professor at Notre Dame Law School, whom liberals and conservatives alike expect to enable the dismantling of Roe and perhaps the undoing of Ginsburg’s legacy. When President Trump announced Barrett’s nomination, on September 26th, she paid homage to Ginsburg, who “began her career at a time when women were not welcome in the legal profession,” and promised that, if confirmed, she will “be mindful of who came before me.” But Barrett, who clerked for Justice Antonin Scalia, is a conservative; she said that Scalia’s “judicial philosophy is mine, too.” During her confirmation hearings, she has been asked to justify replacing a great liberal feminist Justice, taking a spot that, after the election, could perhaps have gone to a Democrat.

An op-ed by Noah Feldman: I have always hated the kabuki theater of Supreme Court confirmation hearings. But I can still dream that some judge, someday, might actually answer some interesting questions — although that does not seem like it will be happening this week. Nonetheless, there are at least two hard questions Judge Amy Coney Barrett should be asked about precedent — and that, in a sensible world, she would answer directly. 1. What is the difference between precedent and “super-precedent”? Is the right to abortion a super-precedent? And if not, why not? The idea of super-precedent has never been used expressly in a Supreme Court opinion. Fifteen years ago, constitutional scholar Jeff Rosen traced the first judicial use to stalwart conservative Judge Michael Luttig, who wrote that Planned Parenthood v. Casey, which declined to overturn Roe v. Wade, had been meant by the Supreme Court “as a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy.” Luttig’s implication was that it should be even harder to overturn the abortion right than to overturn other well-established precedent. Senator Arlen Specter asked then-Judge John Roberts about the idea at Roberts’s confirmation hearings. Roberts was careful, embracing the idea of precedent without the word “super.” In Tuesday’s hearings, Barrett said that Brown v. Board of Education is a “super-precedent … that is so well-established that it would be unthinkable that it would ever be overruled.” She also pointed to several other super-precedents, like Marbury v. Madison. So it would be right to press Barrett on why the Roe v. Wade decision, now nearly fifty years old, should be any different.

An op-ed by Cass Sunstein: We have heard a great deal about Judge Amy Coney Barrett’s approach to the law in the time leading up to her Supreme Court confirmation hearings this week. She believes in adhering to the text of the U.S. Constitution and of statutes enacted by Congress, and in following the “original meaning” of that text. In this respect, she follows her mentor, the late Justice Antonin Scalia. In her words: “… It was the content of Justice’s Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were.” She also explained: “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold." Fair enough. But what would you think about a judge who voted to strike down the Affordable Care Act, to strike down greenhouse-gas regulations, to strike down gun-control laws, and to strike down affirmative-action programs? Would you be quite clear that such a judge had been “resolute in setting aside any policy views they might hold”? What would you think if that very same judge voted to invalidate congressional restrictions on corporate speech, voted to forbid Congress from allowing citizens to bring suit in federal court, voted to strike down campaign-finance regulations, voted in such a way as to hand the 2000 presidential election to President George W. Bush — and consistently voted against constitutional protections of gays and lesbians? Would you be so sure that such a judge was simply “applying the law as written”? And what would you think if that same judge voted to strike down environmental regulations as interfering with property rights, voted to overrule Roe v. Wade, and ruled against a constitutional right to same-sex marriage?