Media Mentions

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this second installment of Deep Bench, a rare interview with a sitting judge. Noah talks with Judge Jeffrey Sutton, who describes how members of the Federalist Society helped develop the central legal theories that conservative judges and justices use today.

This summer, a bipartisan group of about a hundred academics, journalists, pollsters, former government officials and former campaign staff members convened for an initiative called the Transition Integrity Project. By video conference, they met to game out hypothetical threats to the November election and a peaceful transfer of power if the Democratic candidate, former Vice President Joe Biden, were to win...The idea was to test the machinery of American democracy...Along with disinformation campaigns, there is the separate problem of “troll armies” — a flood of commenters, often propelled by bots — that “aim to discredit or to destroy the reputation of disfavored speakers and to discourage them from speaking again,” Jack Goldsmith, a conservative law professor at Harvard, writes in an essay in “The Perilous Public Square,” a book edited by David E. Pozen that was published this year. This tactic, too, may be directed by those in power...Concerns about the harm of unfettered speech have flared on the left in the United States since the 1970s. In that decade, some feminists, led by the legal scholar Catharine A. MacKinnon and the activist Andrea Dworkin, fought to limit access to pornography, which they viewed as a form of subordination and a violation of women’s civil rights. In the 1980s and ’90s, scholars developing critical race theory, which examines the role of law in maintaining race-based divisions of power, called for a reading of the First Amendment that recognized racist hate speech as an injury that courts could redress...The Supreme Court has also taken the First Amendment in another direction that had nothing to do with individual rights, moving from preserving a person’s freedom to dissent to entrenching the power of wealthy interests. In the 1970s, the court started protecting corporate campaign spending alongside individual donations. Legally speaking, corporate spending on speech that was related to elections was akin to the shouting of protesters. This was a “radical break with the history and traditions of U.S. law,” the Harvard law professor John Coates wrote in a 2015 article published by the University of Minnesota Law School. Over time, the shift helped to fundamentally alter the world of politics.

Even as California aspires to a more sustainable, climate-friendly economy, the environmental degradation Bahram Fazeli witnesses daily is an unwelcome reminder of how much the state is held back by a federal government pushing in the other direction. The oil wells, refineries, metal-finishing businesses and hazardous waste facilities in Wilmington and Huntington Park, where the environmental activist works, leave residents of those primarily Latino communities acutely exposed to health risks. Fazeli has lost patience with the pace of change...That urgency gives the state a particularly large stake in the outcome of an election that poses a drastic contrast on climate issues — a White House steeped in climate denial and closely allied with fossil fuel companies versus a Democratic candidate who has embraced a $2-trillion climate plan that would rely heavily on California innovation and ambition as a template for fighting global warming across the country. The Trump administration has spent billions of dollars in an almost entirely unsuccessful effort to prop up the nation’s coal industry and has given priority to coal and oil production over renewable sources. The administration’s policies have put the economic interests of regions heavily dependent on coal and oil production ahead of states like California. Biden would largely reverse that. California’s senior elected officials — all Democrats — believe Biden’s election would unleash a flurry of initiatives in the state designed to reshape the energy and transportation sectors and shift money to low-income communities suffering the most from pollution caused by fossil fuels. “It would be going from pushing a rock up a mountain to running downhill with the wind at your back,” said Jody Freeman, who was President Obama’s advisor on climate change and now directs the environmental law program at Harvard.

An article by Anoush Baghdassarian ‘22: A war broke out on Sept. 27 in the mountainous region of Nagorno-Karabakh, also known as the Republic of Artsakh or the Nagorno-Karabakh Republic (NKR). The region—no bigger than the state of Delaware—hosts a population of around 150,000 people, almost all of whom are ethnically Armenian. It is internationally recognized as lying within Azerbaijan’s borders but sees itself as a de facto independent republic, with its own parliament, president and army. Yet the conflict extends beyond an internal fight between Azerbaijan and a breakaway republic. Armenia does not claim ownership of Nagorno-Karabakh but considers itself the guarantor of the security of the ethnic Armenians living in the region and is NKR’s lifeline to the outside world. Turkey is also a player in the conflict: It has pledged support for Azerbaijan, closing its border with Armenia and reaffirming Azerbaijan’s claims to territorial integrity. Amid the current crisis, Turkish President Recep Tayyip Erdogan pledged to “support our Azerbaijani brothers with all our means as always,” including military assistance. Lastly, Russia considers the Caucasus its “near abroad,” brokering cease-fires each time the conflict escalates but also selling arms to both sides. Though sporadic sniper fire across the border has been common since the Karabakh War “paused” in a cease-fire in 1994, there have been two major conflagrations where troops have attempted to cross the Line of Contact, which lies in the Murovdag mountain range between Azerbaijan and NKR and separates the Azerbaijan armed forces and NKR Defense Army. The first was a four-day war in April 2016, and the second is the current conflict. The present violence has escalated to the worst the region has seen in decades.

Angel Kai’s heart sank when she found out she was pregnant again. The 20-year-old had delivered her second child only three months prior...It turned out, though, that Angel couldn’t even afford the abortion she knew she wanted. Her health plan was offered under state-funded Medicaid, which, in Texas, only covers abortion in cases of life endangerment, rape, and incest...Before finding Fund Texas Choice, Angel had tried to get an ultrasound at a “crisis pregnancy center,” which is actually a coded name for an anti-abortion clinic. “They told me abortion is murder, and that I would go to hell if I had one,” Angel remembers now, a year later. “But I knew the abortion was the best thing for me to do.” Angel’s story could have looked very different. If she hadn’t learned about the fund, she may have not been able to get the abortion pill. Alternatively, if she lived in a different state, she may have been able to use her health insurance to pay for the abortion, at a clinic much closer to her house...The Supreme Court may get its chance to reconsider Roe v. Wade within the next year, according to multiple experts Refinery29 spoke to...And even if Roe is not overturned in one fell swoop, states could continue passing legislation that chips away at access bit by bit, and the Supreme Court could uphold those state laws, explains Laurence H. Tribe, university professor of constitutional law emeritus at Harvard. If Roe is dismantled, Sussman says that 25 million women of reproductive age live in a state where abortion would be banned. This is perhaps the most likely scenario: That a more conservative Supreme Court will first “hollow out” Roe until there’s almost nothing left. That could look like banning common procedures for abortion, such as Dilation and Evacuation, or even forbidding abortions after brain waves are detected, Tribe says. Right now, with the 17 abortion-related cases held up in federal appeals courts, the Supreme Court has what Tribe describes as a “menu” of cases, and they’ll get to pick and choose which to take. “They’re going to be looking for cases that will give them the maximum opportunity to do the most damage to Roe v. Wade,” Tribe says. “You've heard of death by a thousand cuts? That’s what may happen to Roe, after about a dozen decisions over the next three to four years.”

An op-ed by Noah Feldman: Judge Amy Coney Barrett has expressed the highly unusual view that judges should recuse themselves when a case might require them to act against conscience and violate Catholic Church teaching. On its own, the view is defensible. But it carries an important implication, one that Barrett hasn’t addressed: that Barrett should recuse herself from any case involving abortion rights regardless of how she would rule. To understand this argument, you have to begin with how unusual Barrett’s view is. Most judges and judicial nominees take the view that their religious beliefs are irrelevant to the job of judging. The strongest formulation echoes that of Thomas Jefferson, who wrote in his Bill for Establishing Religious Freedom “that our civil rights have no dependence on our religious opinions, any more than on our opinions in physics or geometry.” But in a 1998 article that she wrote with John Garvey, then the dean of Boston College Law School, Barrett rejected this strong separation between religious faith and judging. Barrett and Garvey argued that Catholic teaching prohibits believers from “cooperating with evil.” From this premise they concluded that Catholic judges shouldn’t participate in cases where they might have to impose the death penalty, which is itself condemned by authoritative Catholic doctrine outside of a few extreme circumstances. On its own, this view has some merit. Recusal decisions are governed by a federal statute, which says, among other things, that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

An op-ed by Cass Sunstein: A well-functioning democracy requires at least two parties, armed with different ideas and approaches. If Republicans lose the White House to Democratic nominee Joe Biden, what ideas and approaches should they champion? Many Republicans might want to go back to basics and recover some of the foundations of conservative thought, as laid out by such thinkers as Edmund Burke, Michael Oakeshott and Russell Kirk. They might not be eager to seek advice from anyone who is not a trusted conservative. But one of the most clarifying accounts of the conservative tradition comes from a remarkable book, “The Rhetoric of Reaction,” written by the economist Albert Hirschman in 1991. Hirschman himself was no conservative. His aim was to offer a catalog of standard rhetorical “moves” by those opposed to social reform. But Hirschman paid careful attention to centuries of conservative ideas, and he was aware of the power of those moves. He had too much integrity to deny that, some of the time, those who make them are entirely correct. If Biden is elected and tries to deliver on his campaign promises, those on the right would find Hirschman’s catalog useful. Hirschman divided the objections to progressive reforms into three different categories: perversity, futility and jeopardy. Of these, the most effective is the perversity argument. The basic claim is that many seemingly appealing reforms are self-defeating; they hurt the very people they are supposed to help. Societies are systems, and if you interfere with one part of them, you might not like what happens.

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. This episode: the historic rise of the Federalist Society, how a small group of students 40 years ago started a club that changed the face of the federal judiciary. If Judge Amy Coney Barrett is confirmed, six of the nine Supreme Court Justices will be current or former members of the organization.

Here is the Radio Boston rundown for Oct. 16. Tiziana Dearing is our host. This week was about the pandemic, politics and policing. There are now 63 cities and towns designated as high risk for the coronavirus in Massachusetts, which is 23 more than last week. In Washington, just three weeks before the presidential election, the Senate Judiciary Committee started Supreme Court confirmation hearings for Judge Amy Coney Barrett, while the presidential candidates held dueling town halls. Back here in Boston, Mayor Walsh announced that he would adopt all four prongs of a police reform task force report, making changes to police oversight, addressing issues of diversity and inclusion, the use of force and police body cameras. We take listener calls and discuss it all with our Week in Review panelists: retired federal judge Nancy Gertner and Joe Battenfeld, political columnist at the Boston Herald.

Traditional paternalists argue that they know what's good for you regardless of your own preferences. Prohibition advocates, for example, claimed that people must be forced to stay away from "Demon Rum" no matter how much they like to drink, or how carefully they weigh the costs and benefits of doing so. Over the last twenty years, however, intellectually sophisticated paternalists have largely shifted to a different rationale for restricting freedom of choice: "libertarian paternalism." Unlike old-fashioned paternalists, advocates of LP argue that choice must sometimes be restricted in order to enable people to better pursue their own "true" preferences—to do what they themselves would want to do, but for the pernicious influence of ignorance and cognitive biases. LP enthusiasts also contend that policymakers can simultaneously improve decision-making and minimize coercion by using carefully calibrated "nudges" rather than the crude blunderbuss tactics of "hard" paternalists. For their part, critics claim that the behaviorial research underlying LP isn't as robust as advocates assert, and that the new paternalistic policies have many of the same flaws as the old. Two recently published books suggest that there may be more room for common ground between defenders and critics of LP than previously assumed.  The first is Too Much Information: Understanding What You Don't Want to Know by Harvard law professor Cass Sunstein, one of the leading advocates of LP. The second, Escaping Paternalism: Rationality, Behavioral Economics, and Public Policy, by economists Mario Rizzo and Glen Whitman (RW), perhaps the leading academic critics of LP.  Sunstein and RW are longtime adversaries in the academic debate over paternalism. But these two books have so much in common that readers unfamiliar with the authors' history might assume they are all on the same side.

Two years ago, Mark Zuckerberg held up Holocaust denial as an example of the type of speech that would be protected on Facebook. The company wouldn’t take down content simply because it was incorrect. This week, Facebook reversed that stance. Is this decision the first step toward a new way of policing speech on the social network? Guest: Evelyn Douek: lecturer at Harvard Law School and affiliate at the Berkman Klein Center for Internet and Society.

Supreme Court nominee Amy Coney Barrett raised a remarkable question among legal experts when she declined to affirm the presence of rising temperatures and their human-driven causes. Would acknowledging climate change jeopardize her ability to appear impartial when overseeing cases involving global warming? The facts of climate change are well-established, and some experts note that judges have a responsibility to acknowledge them unequivocally in order to rule on questions related to the powers of federal agencies...Other judges haven’t had a problem affirming the science of climate change, including Justice Brett Kavanaugh, who was appointed to the high court by President Trump in 2018. “The Earth is warming, and humans are contributing, and I understand the international collective action problem here; I understand that very well,” Kavanaugh said in 2016 when serving on federal appellate court. His comments came during arguments over the Obama-era Clean Power Plan...Judges often attempt to understand science as part of their decisionmaking. Hana Vizcarra, a staff attorney with Harvard Law School, noted that judicial questions regarding climate change are no different. “At a time when many judges are recognizing the need to educate themselves on the basic facts and science around the current state of climate change, it is interesting that [Barrett] feels the topic is not relevant to the job,” she said in an email.

Massachusetts advocates and legal organizations are scrambling to get the word out to people incarcerated in the state’s prison and jails about an Oct. 30 deadline to apply for federal stimulus payments, after a court reaffirmed they are eligible for the money. More than 13,000 prisoners may be eligible to receive up to $1,200 in federal stimulus payments as part of the Coronavirus Aid, Relief, and Economic Security Act, signed into law in March...Questions about eligibility arose in May when the Internal Revenue Service released information on its website that incarcerated people were not eligible for the funding. Prisoners and their advocates followed with a class-action lawsuit in California arguing the federal law does not disqualify prisoners from receiving payments. Since then, federal judge Phyllis Hamilton has issued a series of rulings, the latest Oct. 14, finding that all economically eligible Americans are entitled to receive stimulus payments regardless of their incarceration status...Joel Thompson, managing attorney for the Prison Legal Assistance Project at Harvard Law School, says distributing stimulus payments to people in prison will fulfil the federal law’s purpose of stimulating the economy. “Knowing what we know about the socioeconomic status of prisoners and the families from which they come,’’ he said, “it's actually more likely that stimulus money will be spent and not just thrown in the bank.”

Michael Klarman sees trouble ahead with a large conservative majority on the Supreme Court.

On this week’s episode of Stay Tuned, “The Post-Trump Clean-Up,” Preet answers listener questions about the hypothetical pardoning of President Trump, the presidential native-born citizen requirement, and the process for impeaching a Supreme Court Justice. Then, Preet is joined by legal scholars Bob Bauer and Jack Goldsmith, authors of After Trump: Reconstructing the Presidency, to discuss their ideas for strengthening the rule of law and reforming our government. In the Stay Tuned bonus, Bauer (who reportedly played President Trump on Biden’s debate prep team) gives his observations of the first presidential debate, and Goldsmith offers his concerns about the line of presidential succession. To listen, try the CAFE Insider membership free for two weeks and get access to the full archive of exclusive content, including the CAFE Insider podcast co-hosted by Preet and Anne Milgram.

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.