Media Mentions

The front of the New York Times sports section on Thursday commemorated a historic day in sports, when three NBA playoff games, along with games across Major League Baseball, Major League Soccer and the WNBA, were postponed because athletes refused to play, in protest over the police shooting of Jacob Blake, an unarmed black man in Kenosha, Wisc. The image was simple: an empty court in the NBA bubble in Orlando. The headline was one word: “Boycott.” And the backlash, once the Times tweeted the image Wednesday night, came quickly. “You need to change it to STRIKE,” Rep. Alexandria Ocasio-Cortez, D-New York, wrote on Twitter. Ocasio-Cortez spread her frustration around the media, responding to a tweet by The Washington Post that also called the action a “boycott," though the story itself used “strike." "NBA players are courageously on strike (withholding labor), NOT boycotting (withholding their $ /purchase),” she wrote. "The diff is important bc it shows their power as *workers*.” Others piled on. In New York magazine, Sarah Jones and Chas Danner offered their own critique of sportswriters who referred to the day’s events as a boycott. “The term,” they wrote, "is inaccurate, and dampens the political thrust of the Bucks’ protest.” ...Benjamin Sachs, a professor of labor and industry at Harvard Law School, [says] labeling what happened may be less important than describing what happened, and why. “We tend to think about strikes as about wages and benefits," Sachs said. "Those are very important, but this was about something much bigger than that, something involving the character and future of the country. So you can call it whatever you want, but the name seems less important than the meaning of what happened.”

In the late 1980’s and early 1990’s western-style democracy appeared ascendant and inevitable.  U.S. President George Herbert Walker Bush hailed events such as the fall of the Berlin Wall and the dissolution of the Soviet Union as heralding a New World Order, based on democracy and global capitalism.  But the last thirty years have seen, not an expansion of democracy, but a rebirth of authoritarianism.   Across the globe,  electoral fraud, political corruption, disenfranchisement of political minorities and the specter of fascism now seem the rule rather than the exception.  In 2017, the London-based Economist Democracy Index hit its lowest score ever, including the downgrading of the United States from a “Full Democracy” to a “Flawed Democracy.”  Today, we start a three-part series, Democracy in Crisis, which will explore the failures of our current electoral system and perhaps, provide some hope for an alternative model.  Joining WORT host Brian Standing...Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School. Prior to returning to Harvard, he taught at Stanford Law School, where he founded the Center for Internet and Society. Lessig is the founder of Equal Citizens and a founding board member of Creative Commons. His books include: They Don’t Represent Us: Reclaiming Our Democracy, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution, America, Compromised and  Republic, Lost v2.

Pennsylvania Attorney General Josh Shapiro brought criminal charges last September against a Centre County mechanical contractor for allegedly underpaying its workers by more than $64,000 over at least five years. The charges against Goodco Mechanical and its owner, Scott Good, were just one part of the attorney general’s strategy to crack down on scofflaw employers — a strategy that, according to a new report, places Pennsylvania on the forefront of a trend of state attorneys general using their powers to protect workers’ rights. In the last five years, several state attorney general offices — including those in Pennsylvania and New Jersey — have launched units focused on defending workers, transforming their offices into what report author Terri Gerstein describes as a rarity: a high-profile government entity that’s willing to hold employers accountable. Previously, only three states had such units; now, there are nine, according to Gerstein’s Economic Policy Institute report published Thursday. The trend marks a major shift, as attorneys general have not traditionally taken action on worker-related issues, said Gerstein, director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program. The shift comes as workers have faced increasingly precarious working conditions, and the percent of the workforce represented by a union has dropped to a historic low. It’s also part of a local worker protection movement, as cities and states attempt to fill the void left by the Trump administration, which has not prioritized workers’ rights. But perhaps most of all, worker issues have found footing in the national consciousness: “If you go back to 2008,” Gerstein said, “[these issues] were not in the newspaper headlines. It wasn’t a matter of such intense, focused, public concern.” In most states, including Pennsylvania, the attorney general is an elected position. Voters, she said, care about these issues.

Two primary drivers for deal activity, company market valuations and overall economic conditions, are diverging more than ever. That’s creating opportunities for both law firms and their corporate clients—and challenges for others. M+A lawyers are increasingly talking about “the winner and the losers” in the market. That’s reinforcing the need for law firms to have a diversified range of clients, including clients that are more resilient and buoyant in today’s economy, some observers say. Brian Richards, chair of Paul Hastings’ global private equity practice, said deal flow in his practice has seen an increase in August, which he said is normally a down time for deals...During the initial phases of the pandemic, the U.S. economy and the markets took a unified downturn, effectively halting large deals and providing a level of uncertainty that put even smaller deals on hold. But the stock market has rebounded, and with authority...The economy, on the other hand, has not fared near as well...John Coates, a professor of law and economics at Harvard Law School, said most law firms are probably not in a terrible spot. “As a general matter, compared to say most professional services industries, the legal services for M+A work is very fragmented,” Coates said. “Individual firms don’t tend to have a significant share of overall M+A work, so one firm isn’t necessarily being hit harder than another.” Firms that have specialized their M+A work around industries hit hard by the pandemic, like real estate or hospitality, he said, could end up in that loser bin for the time being, but most firms are geared to handle that impact as well. “Well-run firms pay attention to not letting any one client generate a large percentage of their revenues, and there aren’t too many firms that are too dependent on that,” he said. “Regardless of how the market and the economy affect companies, law firms are normally sufficiently diversified.”

Today, Kate Klonick is back as the guest host. She is an assistant professor at St. John’s Law School, a fellow at the Information Society Project at Yale Law School, and researcher of the intersection between law and tech. She’s also co-host of a daily YouTube series called In Lieu of Fun. On the Gist, in 2020, every online company has a community of standards and manually reviews user content. In the interview, Kate talks to Harvard law professor Noah Feldman about his idea for Facebook to create a Supreme Court to adjudicate disputes over speech. They discuss how he came up with the idea and pitched it to Sheryl Sandberg and Mark Zuckerberg, the influences it draws from political systems, and the size of the case it should choose as its first. Feldman hosts the podcast Deep Background. In the spiel, Facebook’s oversight board could be the start of something revolutionary within big tech.

Lindsay Ruck was just starting her Father’s Day brunch shift at the Cheesecake Factory in Chandler, Ariz., when her boss told her a co-worker had Covid-19...Her boss, the general manager, told her she wasn’t allowed to mention the coronavirus case to anyone, including fellow staff. The company was informing only the people who’d worked during the sick employee’s last shift, and, per Cheesecake higher-ups, even the information that any worker had tested positive was deemed private, Ruck recalls...In the past few months, U.S. businesses have been on a silencing spree. Hundreds of U.S. employers across a wide range of industries have told workers not to share information about Covid-19 cases or even raise concerns about the virus, or have retaliated against workers for doing those things, according to workplace complaints filed with the NLRB and the Occupational Safety and Health Administration (OSHA). Workers at Amazon.com, Cargill, McDonald’s, and Target say they were told to keep Covid cases quiet. The same sort of gagging has been alleged in OSHA complaints against Smithfield Foods, Urban Outfitters, and General Electric...In July, Colorado’s governor signed a similar law, making it illegal for companies to require workers to keep health concerns private or retaliate against workers who raise them. A few days after the Colorado bill signing, Virginia’s state safety board passed its own binding Covid regulations, including a ban on retaliation against workers who raise reasonable concerns at work or on social media and a requirement that companies notify co-workers and the state about coronavirus cases. Other states should adopt such standards and could go further by alerting the public about companies with clusters of cases, says Terri Gerstein, a former labor bureau chief for New York’s attorney general’s office and now a fellow at Harvard Law School. “It’s a matter of public health,” she says, “and of opening the economy in a long-term way instead of start-and-stop sputtering.”

A podcast by Noah Feldman: Elaine Kamarck, a senior fellow at the Brookings Institution who studies the post office and electoral politics, discusses whether the agency can handle a pandemic election.

An article by Gerald Neuman: At a time when the rule of law is under threat and xenophobic incitement has become a central government policy, a five-Justice majority of the Supreme Court has called into question the Constitution’s fundamental guarantee against executive detention. Refugees are the primary target of the Court’s decision in Department of Homeland Security v. Thuraissigiam, but the immediate implications of Justice Samuel Alito’s opinion are much wider, and the opinion endangers everyone – U.S. citizens included – by reopening settled questions about the Habeas Corpus Suspension Clause of the Constitution. This important case has gotten less public attention than it deserves.   The opinions may be hard for non-experts to follow, because they arise in a technically complex area of immigration law, and because Alito mischaracterizes some of the issues. The case arose when Vijayakumar Thuraissigiam fled Sri Lanka in the hope of being protected by the United States and was arrested by immigration officials in 2017 at a short distance from the southern border. He was placed in rudimentary “expedited removal” proceedings, where his claims for protection were quickly rejected. The statutory provisions on expedited removal clearly preclude anyone in his position from obtaining judicial review, including by habeas corpus, of the legality of the removal decision. The central issue raised by the case was whether this total preclusion of habeas corpus for a refugee within the United States violated the Suspension Clause. Once the Supreme Court granted certiorari, it was likely that five Justices would rule against the refugee’s right to have his particular claims reviewed; the more urgent question was how broadly they would uphold preclusion of judicial review. As it turned out, concerns about a broad ruling were justified. Justice Alito not only rewrote and marginalized prior precedent on habeas corpus, but reached out to decide an important procedural due process issue that his own analysis had rendered irrelevant.

In an ideal world, all children would live worry-free and have access to their basic needs: nutritious food, a good education, quality health care and a secure home. Emotionally, they all would feel safe and be loved and supported by caring adults. When all such needs are met, children have a better chance of a stable and happy adult life. But in reality, not every child is so privileged — even in the richest nation in the world, and conditions are even harder for underprivileged children this year during the COVID-19 pandemic...Some states address the problems of underprivileged children better than others. To determine where children are most disadvantaged, WalletHub compared the 50 states and the District of Columbia across 27 key indicators of neediness. Our data set ranges from the share of children in households with below-poverty income to the child food-insecurity rate to the share of maltreated children. Read on for our findings, expert insight on how to improve conditions for children and a full description of our methodology...What measures can state and local governments take to ensure the stability of vulnerable children’s educational and social environment during this crisis? Elizabeth Bartholet: "Vulnerable children are seriously at risk with schools shut down. They are at risk both for not receiving adequate education and for abuse and neglect. Children who are less privileged in socio-economic terms are likely to be at the least privileged schools, which are doing the least adequate job in terms of home education. These children are disproportionately less likely to have access to online education. Children already at risk for abuse and neglect are not being seen by teachers if schools are shut down. This means they are not being seen by teachers and other school personnel who are mandated reporters under the law – required to report suspected abuse and neglect to child protective services (CPS). This is a major problem since teachers and other school staff are the largest groups of reporters of suspected abuse."

An analysis recently published in the British Medical Journal argues for increased implementation of "food is medicine" interventions in the health care system. The article was co-authored by Seth A. Berkowitz, MD, MPH, assistant professor of medicine at the UNC School of Medicine, who mostly recently argued in the New England Journal of Medicine that food insecurity is known to be a health equity issue that disproportionately affects racial/ethnic minorities and those with lower incomes and rural communities. Thus, food insecurity is now playing a big role in the COVID-19 pandemic and associated health outcomes. Berkowitz has conducted a number of studies on health-related social needs and their effect on health outcomes, published in JAMA Internal Medicine. Sarah Downer, JD, from the Center for Health Law and Policy Innovation at Harvard Law School is the first author of the BMJ study, along with Timothy Harlan, MD, at the George Washington University School of Medicine and Health Sciences, Dana Lee Olstad, Ph.D., at the Cumming School of Medicine at University of Calgary, and Dariush Mozaffarian, MD, MPH, DrPH, from the Friedman School of Nutrition Science and Policy at Tufts University. The world is facing an epidemic of diet-related chronic diseases with one in five deaths attributed to a suboptimal diet, more than any other risk factor including tobacco, according to the authors. An emerging body of research suggests that nutrition interventions delivered in the health care system may be associated with improved outcomes.

The early weeks of the coronavirus crisis were fraught with immediate challenges for law firms. But in the months since, as the industry and the world have adjusted, many of the initial work issues associated with the pandemic have been addressed. Yes, people can work from home. Yes, deals can be done remotely. Yes, Zoom and other platforms can be effective for interpersonal communications. Law firms are entering another phase of the pandemic fallout: Now that the immediate needs have been met, how can they plan for the future? Complex questions around safety and equity are now paramount. And one of those questions is how firms are going to train, coach and develop their talent in an effective and equitable manner at a time when the circumstances of their dispersed workforces are both inconvenient and inconsistent. “At most firms, there are no systems, structures and professional staff in place that are focused on these kinds of issues,” Scott Westfahl, professor of practice and director of executive education at Harvard Law School, says...Westfahl, a Big Law veteran of both Foley + Lardner and Goodwin Procter, says work allocation systems are critical to bringing everyone along at an appropriate pace. “My model for this is the consulting firms,” he says. “Partners there couldn’t give work to associates without the professional development person saying it fairly meets the needs of the associate body.” After the Great Recession, law firms emerged with what Beese describes as “holes” in their partner classes due to lack of leadership around career progression and talent development. “Firms had two or three years where they only had two or three people left in their classes,” he says.

An article by Noah Feldman: The lawsuit filed by Bytedance, the parent company of TikTok, is a bit of a long shot. Faced with President Donald Trump’s executive order effectively making it impossible for TikTok to do business in the U.S., the platform has few options. Yet, even a long-shot lawsuit may have some strategic value as the parent company tries to figure out whether it will have to sell TikTok to keep the lucrative business alive. The arguments in the lawsuit are not without legal logic. They might conceivably convince a lower court that is unsympathetic to Trump to decide that the executive order should be put on hold until the court can investigate the claims more closely. And even if that legal ploy doesn’t work, the lawsuit at least gives the company the opportunity to identify Trump’s order for what it is: a politicized, election-year effort to play up anti-China sentiment. TikTok’s legal claims can be divided into three groups. The first is the argument that Trump violated due process of law by effectively taking away TikTok’s property right to do business without giving TikTok fair notice and the opportunity to have its arguments heard. This due process claim sounds pretty logical — if you’re not a lawyer. It’s certainly true that the executive order effectively blocks TikTok from doing business. The trouble is, the provision of law on which the executive order relied, known as the IAEE, allows the president to take steps to block foreign businesses that he deems to be national security threats from operating in the U.S. Because Bytedance, the parent company of TikTok, is a Chinese company, it almost certainly does not enjoy a due process right to be heard in court before the IAEE provision is activated against it. This is why the executive order took the form of a prohibition on commercial transactions involving Bytedance.

EPA's move this month to kill federal methane controls for oil and gas could do more than just make it easier for the greenhouse gas to enter the atmosphere. It could also make it harder for the agency to use the Clean Air Act to regulate in the future. That's because EPA's decision in mid-August to roll back Obama-era methane rules includes new guardrails on how EPA can use the Clean Air Act (Energywire, Aug. 14). Specifically, it asserts that before EPA can use the Clean Air Act to limit a new pollutant from a new source category — such as power plants, manufacturing or petroleum development — the agency first must prove that sector is a significant source of whatever pollutant EPA would regulate. The additional requirement — if it survives court challenges — could slow, or even deter, EPA rulemaking. That could prove especially true for regulation of greenhouse gases, where even high-emitting sectors in the United States supply a tiny percentage of the global atmosphere's load of carbon dioxide, methane or other gases. EPA has said it plans to issue proposed criteria later this year. "They're talking about providing regulatory certainty and providing a clearer framework, but they seem to be failing to consider that it could undermine the purpose of the Clean Air Act — that is to undermine its ability to protect public health and welfare and to continuously improve the country's air quality," said Hana Vizcarra, a staff attorney with the Harvard Law School Environmental and Energy Law Program. "It's an opportunity to not regulate." ...Vizcarra said the wording of the Trump administration's move on methane "follows their pattern of slicing and dicing their regulatory authorities" to justify deregulation. The rule deregulates transmission and storage — which were covered under the Obama rule — and employs an equation for climate damage done by methane that looks only at impacts within the United States. The intent is to support a cost-benefit analysis that doesn't demand tougher regulations, Vizcarra said.

While the Science Weekly team take a summer break, we’re bringing you an episode from the archives – one that seems particularly pertinent as the pandemic continues and governments take a more prominent role in our day-to-day lives. Back in 2017, Ian Sample investigated how we’re constantly “nudged” to change how we act. Exploring the psychology, history and ethics of nudge theory, Ian spoke to the Harvard Law School professor Cass Sunstein and Dr. David Halpern, one of the field’s founders, who is currently advising the UK government on nudging during the coronavirus outbreak.

In a move that reform advocates call an alarming turn away from the effort to reduce the role of bail in the criminal justice system — a movement her own campaign embraced two years ago — Suffolk County District Attorney Rachael Rollins’s office is seeking a dramatic increase in bail for a defendant after learning that the Massachusetts Bail Fund was prepared to post the money to free him. Barry Twomey, a 58-year-old homeless Boston man, was arraigned on July 7 on armed robbery charges after he was arrested on July 2 at the South Bay Mall, where two robberies occurred. Prosecutors asked that he be held on $5,000 bail, an amount Boston Municipal Court Judge Eleanor Sinnott agreed to. But when the district attorney’s office learned that the Bail Fund planned to post the $5,000, it filed a request on August 14 for a new hearing at which prosecutors want the court to order a 10-fold increase in Twomey’s bail to $50,000. The nonprofit Bail Fund raises money to free indigent defendants who are awaiting trial, arguing that the legal system discriminates against poor people, who often remain behind bars for months before their cases are heard, while those from more well-off backgrounds have family that can post bail and have them released...On any given day, nearly half a million people who have not been convicted of a crime are held in US jails, according to a report issued last year by the Criminal Justice Policy Program at Harvard Law School. The widespread use of cash bail payments to secure the release of defendants before trial, the report says, “discriminates based on wealth, exacerbates racial disparities, results in over-incarceration, and imposes unnecessary costs on individuals and society at large.”

Despite his racism, his incompetence, his soliciting of foreign intelligence to boost his presidential bids, what may be multiple attempts at obstructing justice, and his undermining of American democracy, Donald Trump is still eligible to serve as president of the United States. And that’s because, like his running mate and their Democratic opponents in the race for the White House, he meets the two main constitutional requirements to serve as commander-in-chief: He’s over 35 and a natural-born citizen. While setting a minimum-age for the president seems somewhat arbitrary, the requirement to be a natural-born citizen is rooted in a xenophobic fear of recent immigrants as potentially disloyal Americans who might be foreign agents. It creates a tiered citizenship both legally and psychologically: Through the “natural-born” clause, the Constitution grants more rights to those who are Americans by birth than those who are Americans by choice. As a result, naturalized citizens are made to feel — whether consciously or not — that they are not actually every bit as American as their natural-born counterparts, despite what they’re told when they swear their allegiance to the United States. “We’re told various stories about our democracy,” Randall Kennedy, a professor at Harvard Law School, said in an interview. “We’re told all citizens are the same. Well, all citizens are not the same because the United States Constitution makes a distinction.” That’s why, as Kennedy has argued, the Constitution should be amended to allow naturalized citizens to serve as president... “What matters to me is that we’re not in the 18th century,” Kennedy said. “We’re in the 21st century and there are millions and millions of people who were born abroad, who have become American citizens, and are willing to give their all to the betterment of this country.”

Students at some for-profit career schools could find themselves paying hefty interest charges when using a credit line offered by PayPal, a group of consumer watchdog groups warned this week. More than 150 small career schools and technical programs, most of which aren’t accredited and are loosely regulated, offer students the option to pay tuition using PayPal Credit, a digital credit line marketed by PayPal Holdings and issued by Synchrony Bank, the groups found. The line, similar to a credit card but without the plastic, currently has an interest rate of about 24 percent, and is typically promoted with a six month, no-interest period. Borrowers are charged interest retroactively if the entire balance isn’t paid by the end of the promotion, a feature known as “deferred interest,” the groups said in a letter to federal regulators...How should I evaluate a technical or career program Students should vet a program before borrowing to fund educational costs. “Any loan for a program of unknown quality is a potential problem,” said Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School’s Legal Services Center. Look for a school that is licensed by the state where it operates, and is accredited by an independent authority (such as one on the list of accreditors recognized by the federal Education Department).

Andrew Lelling has put almost two dozen parents behind bars in the U.S. college admissions scandal. On Friday a federal judge sentenced the most famous of them all, “Full House” star Lori Loughlin. The massive prosecution, which also snared top financial and real estate executives as well as a Napa Valley vintner, is one of the most high-profile led by Lelling, the U.S. attorney for Massachusetts and a self-described “red dot in a blue state.” Appointed by President Donald Trump in 2017, he has brought an ambitious series of controversial cases and drawn sharp criticism from liberals who say he’s sometimes more driven by conservative politics than by crime-fighting. The 50-year-old lawman outraged top Democrats, including Massachusetts Attorney General Maura Healey, last year by bringing obstruction of justice charges against a state court judge for allegedly helping a man slip out the back door of a courthouse to evade federal immigration agents. Last month he defended a new administration rule that barred foreign students from remaining in the U.S. if their universities offered only online classes... His critics see Lelling as a self-righteous foot soldier for the Trump administration, prone to overreach and grandstanding. Nancy Gertner, a senior lecturer at Harvard Law School and a retired U.S. district judge, called the federal case against the state judge “an abomination,” saying in an interview that “there were other ways of doing it without doing violence to the constitutional structure.” ...On Friday he saw Loughlin -- unjustly the “face of the national scandal,” as her lawyer described her -- sentenced to two months in prison for paying $500,000 to get her daughters into the University of Southern California as purported crew stars. But the college case has had mixed reviews, too. Some legal pundits, including Harvard’s Gertner, criticize Lelling’s decision to flip William “Rick” Singer, the corrupt admissions strategist at the top of the scheme, against nonviolent offenders with no criminal records on the lower rungs of the racket. “The way it was handled was overreach from beginning to end,” she said.

An article by Noah Feldman: A new narrative is gradually emerging around the balance of power on the Supreme Court. Chief Justice John Roberts may be the nominal boss and the swing vote; Justice Ruth Bader Ginsburg may be the unlikely octogenarian pop icon; and Justice Neil Gorsuch the newest conservative maverick. But according to this story, the real power on the court isn’t any of these headline-grabbing justices. It’s Justice Elena Kagan, the moderate former law school dean and solicitor general. To conservatives, who are the ones pushing the narrative right now, Kagan is a silent strategic genius, tempting and manipulating pliant conservatives like Roberts and now Gorsuch to betray their Federalist Society origins. After Gorsuch and Roberts voted in June to extend antidiscrimination protections to LGBTQ people, the Wall Street Journal editorialized, “Congratulations to Chief Justice Elena Kagan on her big win Monday at the Supreme Court on gay and transgender rights.” The Journal’s editorial board said that Kagan “might as well be” the chief justice and that her ideas were “all over” Gorsuch’s opinion. Writing about a religious liberty opinion that Kagan joined in July, a conservative commentator wrote that she was “a master tactician.” Offering his “rueful praise,” he bluntly stated, “I wish she were on my side.” A right-wing think tank also condemned “the Kagan court” after the court’s refusal to overturn precedent in 2020’s big abortion case. On the surface, this analysis of Kagan’s rule not only sounds insulting to Roberts and Gorsuch, who doubtless believe that they formed their views entirely on their own. It also sounds paranoid: How could carefully vetted conservatives be deviating from conservative orthodoxy if not for the secret influence of a liberal? It’s also possible to hear some hint of sexism in the suggestion that Kagan has tempted the conservative men of the court to tread the unholy path of centrism.

Housed at the Harvard Immigration and Refugee Clinical Program (HIRC) of Harvard Law School, the Harvard Representation Initiative gives legal advice on immigration to students, scholars, and staff concerned about their immigration status.

Students at some for-profit career schools could find themselves paying hefty interest charges when using a credit line offered by PayPal, a group of consumer watchdog groups warned this week. ... More than 150 small career schools and technical programs, most of which aren’t accredited and are loosely regulated, offer students the option to pay tuition using PayPal Credit, a digital credit line marketed by PayPal Holdings and issued by Synchrony Bank, the groups found. ... Students should vet a program before borrowing to fund educational costs. “Any loan for a program of unknown quality is a potential problem,” said Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School’s Legal Services Center.