Media Mentions

An article by Sean Quirk '21: On July 13, the United States hardened its position against the People’s Republic of China (PRC) on the South China Sea. A statement from U.S. Secretary of State Mike Pompeo declared that “Beijing’s claims to offshore resources across most of the South China Sea” and “its campaign of bullying” are “completely unlawful.” Since the July 12, 2016, arbitral tribunal ruling in Philippines v. China (South China Sea Arbitration), the United States has insisted that the decision is “final and legally binding” on both parties. The tribunal rejected China’s claims to “historic rights” and its “nine-dash line” in the South China Sea. In calling for all sides to abide by the tribunal decision, Washington—along with dozens of other countries—had thus aligned itself in support of international law and against China’s claims that fell outside the U.N. Convention on the Law of the Sea (UNCLOS). But Pompeo’s announcement stresses U.S. support not only for the tribunal’s jurisdiction over the disputes but also for the merits of the tribunal’s findings. His statement asserts that China “has no legal grounds” to continue claiming maritime dominion throughout the nine-dash line. The statement’s strong rhetoric lambasts Chinese behavior since the 2016 ruling, saying: “The world will not allow Beijing to treat the South China Sea as its maritime empire.” Moreover, the statement paints the United States as the defender of Southeast Asian countries facing a China that is attempting to “bully them out of offshore resources, assert unilateral dominion, and replace international law with ‘might makes right.’”

Twenty years ago this fall, the United States was plunged into 36 days of turmoil as lawyers, judges, political operatives, and election workers grappled with the uncertain result of the presidential contest in Florida. Whoever won the state would win the presidency. In the end, after start-and-stop recounts and the intervention of courts at every level, Texas Governor George W. Bush, the Republican candidate, was declared the victor, edging out Vice President Al Gore, the Democrat. The story of the 2000 Florida recount offers a reminder of just how chaotic the electoral process can become—and of how disarray in a single state can undermine faith in the democratic process nationwide...The account here, drawn from interviews with more than 40 people with firsthand experience of the Florida-recount saga, is both a history and a warning...On Friday, November 24, the U.S. Supreme Court agreed to review the Florida Supreme Court’s ruling in favor of Gore. Two days later, on Sunday night, Katherine Harris certified the vote tally in Florida, and Bush’s lead stood at 537 votes. Some recount results were excluded—the results from Palm Beach County had arrived two hours late. Miami-Dade had stopped its recount. Laurence Tribe (Gore lawyer): Ron Klain called, and he said, “We really need help. It looks like there is an issue about federal-court intervention with the electoral recount, and we need you to fly down to Florida immediately.” The question of whether, as a matter of federalism, this is an appropriate intervention was very much up in the air. The next morning, I appeared in federal court, and I remember arguing that it was inappropriate for a federal court to intervene at this point. If there were any constitutional issues about the recount, they could be properly handled at the state level and in the state court.

When Shawn McClinton was released from jail in July, according to police, the twice-convicted rapist didn’t waste much time before he struck again. Awaiting trial on another assault charge, McClinton allegedly raped a woman at knifepoint in Dorchester. The attack came just a couple of weeks after a local nonprofit called the Massachusetts Bail Fund posted his bail, enabling him to leave jail after spending two years in detention without a trial. The law enforcement establishment didn’t waste any time, either: Attorney General Maura Healey called the fund’s decision to post the $15,000 bail “dangerous and irresponsible.” Police Commissioner William Gross called the bail fund a “detriment to society.” Even Suffolk County District Attorney Rachael Rollins, roundly considered a progressive prosecutor, criticized the organization, whose stated mission is to post bail for low-income defendants so they can await trial from home just as wealthier defendants do...According to the Suffolk County DA’s office, a dangerousness hearing was not held in McClinton’s case even though experts say his criminal track record makes him exactly the kind of defendant these hearings are designed for. “This is a prosecutor problem, not a judge problem or a bail-fund problem,” says Nancy Gertner, a former federal judge and Harvard Law professor. “The person who dropped the ball is the prosecutor who didn’t say ‘this guy is dangerous’” and request the hearing...Both Gertner and the Massachusetts Bail Fund, for its part, believe the narrative that the public is being fed about McClinton’s case is an attempt to maintain the status quo in law enforcement precisely at a moment of unprecedented mobilization demanding police and criminal justice reform. “The outrage and shock from stakeholders are disingenuous,” bail-fund board member Jessica Thrall says. “All of them know exactly how bail works.”

An article by I. Bennett Capers, John C.P. Goldberg and Benjamin C. Zipursky: Police officers enjoy almost complete immunity from civil suits in federal court. They can shoot someone, taser someone, choke someone, or press their knee into someone’s neck until they can’t breathe. They can brutalize peaceful protesters. And yet, in large part because of the court-made rule of qualified immunity, officers rarely face liability. The calls for ending qualified immunity have not gone unheard. The House of Representatives passed a bill that would eliminate it and enable victims to obtain remedies for violations of their civil rights. But Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate have balked at this change, as has President Trump. Likewise, the Supreme Court recently declined to revisit the subject. The good news is that changing federal law is not the only way to erase the grave accountability deficit for unlawful police violence. There’s an alternative hiding in plain sight: state law. While no state can change federal law, each state has the authority to change its own rules. State tort law has long empowered individuals who have been choked, shot or maimed to sue the person who victimized them. And, while the states have their own sorry track record when it comes to police accountability, it is the prerogative of state lawmakers — not the federal government — to change rules of state law that stand in the way of imposing legal responsibility for police violence. There are already some hints of progress at the state level.

The opening words of Noah Feldman’s latest book, The Arab Winter, are in Arabic: Al-sha‘b Yurid Isqat al-nizam! The people Want The overthrow of the regime! As he explains in his first sentence, “These words, chanted rhythmically all over the Arab-speaking world beginning in January 2011, promised a transformation in the history of the Middle East.” In English, “the people” are plural and take plural verbs: “We the People of the United States,” begins the preamble to America’s fundamental law, “do ordain and establish this Constitution for the United States of America.” In modern Arabic, Feldman goes on, “the people”—sha‘b—is singular and “the collective noun takes the singular verb.” “If it did not sound awkward in English,” he writes, “I would translate it as ‘the people wants.’” From a verse of the Qur’an in which “peoples”—shu‘ub—is plural, the noun morphed to the singular as a result of the movement for Arab nationalism of the late-nineteenth and early-twentieth centuries. The movement, social as well as intellectual, envisioned a single nation of all speakers of Arabic spanning the Mediterranean Sea—3,000 miles “from Morocco in the west to Iraq in the east.” The Arab Winter is about the consequences of the Arab Spring. The series of populist surges between the Decembers of 2010 and 2012, in 10 to 20 countries (depending on how you count), promised to end dictatorship and bring self-government to countries in Northern Africa and the Middle East. But other than in Tunisia, which toppled its repressive dictator and embraced constitutional democracy, the uprising led to civil war, rampant terrorism, or redoubled dictatorship—or to all of them combined. Despite the collapse of the movement, Feldman argues that it should not be judged a failure.

In the United States, “The primary way we define ‘food safety’ is, ‘If I eat this product today, will I be in the hospital in 24 to 72 hours?’” says clinical professor of law Emily Broad Leib. “But this doesn’t account for other ways that the food system produces health risks for members of the public,” including the lifelong risks of, say, developing type 2 diabetes after consuming sugary foods for decades, or the environmental effects of industrial farming, such as fertilizer runoff in waterways, which creates oxygen-free dead zones inhospitable to aquatic life. The single-minded emphasis on microbes like salmonella and E. coli, Broad Leib asserts, “means we’re under-regulating a bunch of other risks that have bigger health impacts.” As director of Harvard Law School’s Food Law and Policy Clinic, she engages law students in projects that investigate how U.S. law intersects with the broader food system, “from the first seed going into the ground, to someone’s plate or perhaps to a trashcan.” Her purview encompasses environmental impacts, worker safety, and even immigration as factors in food production. This holistic, systems approach is a relatively new way to consider food law; when Broad Leib first made the case to law-school colleagues about her work, many misunderstood, thinking she was narrowly focused on foodborne illness or the work of the Food and Drug Administration (FDA). But Broad Leib says that in reality, a food-systems approach is “breathtakingly broad” in its scope. She sees this as a necessity. “This is the way we have to look at these issues,” she says, “or we’re going to continue to make really short-sighted, less equitable, less utilitarian policies.”

As the election nears, anxieties are growing over the possibility that President Donald Trump will try to cling to power if he loses to former Vice President Joe Biden. Trump, for his part, is strongly hinting he will not accept any loss as a legitimate result. On Thursday, the president said that he’s deliberately blocking funding to the United States Postal Service in order to prevent people from voting by mail in the midst of the pandemic, which he claims, without evidence, will result in mass fraud...All this has led many Americans to wonder: What can proponents of democracy do to prevent a stolen election? ...Mark Tushnet, professor of Law at Harvard Law School, warns that results on election night may be misleading due to a close race and the slow counting of mail-in ballots. In 2018, late-counted mail-in ballots after Election Day caused a “blue shift” that understated the depth of the Democratic victory on election night. Trump could take advantage of this delay, aided by overeager—or friendly—media outlets. Tushnet writes: “ ‘Close’ and ‘slow’ are concepts that will be developed on the fly, and with an eye to electoral advantage, but my current version is that margins of around 10,000 votes or fewer will be [construed] to be close. And what counts as slow will depend in part upon whether states provide interim updates from election-night reported outcomes.” Countermeasures: “Immediate popular mobilizations in the form of street demonstrations near but not in the venues where mail-in ballots are being counted (so not the ‘Brooks Brothers’ Republican riot from 2000), with the theme ‘Count every vote.’” Likelihood: This scenario depends on the race tightening in the weeks ahead, the difficulty of counting mail-in ballots, and willingness of the GOP to weaponize an indecisive election night outcome against democracy. Which is to say, it is highly plausible.

Business has soared for UPS as Americans have turned to home delivery during the pandemic, but employees say heavy workloads, COVID-19 safety measures and sweltering summer heat are pushing them to the limit...Twenty UPS workers around the country told NBC News that since spring they’ve been dealing with the volume of packages they see during their peak season, the Christmas rush, if not more. As the pandemic has forced businesses to close around the country, UPS is a shiny outlier. Company statistics show home deliveries are up two-thirds compared to the same period in 2019. But even as temperatures rise, drivers and warehouse workers said they’re pushed to work harder and pressured not to take breaks or days off. As the pandemic extends into the hottest days of summer, UPS employees are among thousands of essential workers in the U.S. confronting a Catch-22. To stave off infection, they’re told to wear masks and avoid clustering with others in closed, air-conditioned spaces. But those measures increase the risk of heat illness — a problem for delivery workers even before the pandemic. Last year, NBC News found more UPS employees were hospitalized for serious heat-related injuries between 2015 and 2018 than workers at any other company except the U.S. Postal Service, which is significantly larger...But despite a growing attention to the role of essential workers, advocates said OSHA, which polices workplaces, has failed to protect them. “It’s unthinkable to me what has been happening with OSHA,” said Terri Gerstein, senior fellow at the Economic Policy Institute and director of the State and Local Enforcement Project at Harvard Law School. “They are abdicating their duty to enforce the law.”

As he did in 2016, Donald Trump is constantly claiming that if he loses in November it will be proof that the vote was rigged against him. He tweets regularly, contrary to the available evidence, that mail-in voting will lead to massive amounts of voter fraud when such fraud hasn’t been a significant problem in any presidential election in modern history. Because Trump seems unlikely to accept the results of the vote if he loses, there is widespread speculation that Trump’s will litigate every ballot it can. But Jessica Levinson, a law professor at Loyola Marymount University, tells AlterNet that the Trump campaign might not have to file a challenge itself, as his supporters might claim that they had been disenfranchised by some sort of fictitious scheme to “rig” the vote...And Nicholas Stephanopoulos, a law professor at Harvard University, tells AlterNet that he can imagine a scenario where the Democrats are the ones suing over election results. “One bad scenario is that a swing state’s election is close and that many mail-in ballots — enough to maybe change the result of the election — arrive too late to be counted because of deliberate delays by the post office,” Stephanopoulos says. “The disadvantaged side (probably Democrats) would then sue, arguing that the mail-in voters’ right to vote was burdened by the post office delays and by the state’s policy of not counting late-arrived ballots.” Stephanopoulos says he expects that the current Supreme Court would be “hostile to this claim despite its normative appeal.” He says the Court has never ruled in favor of a voting rights plaintiff, and it “would be unlikely to start when its decision might benefit a Democrat and when it could plausibly deny the claim.”

EPA's rationale for its decision to stop directly regulating potent heat-trapping emissions from the oil and gas sector may contain fatal flaws that could cause the agency's new standards to stumble in court, legal experts say. The Trump administration last week finalized a pair of regulations aimed at rolling back the Obama administration's 2016 New Source Performance Standards controlling methane emissions from new and modified sources in the oil and gas industry (Climatewire, Aug. 14). Legal experts agree the agency's cost-benefit analysis justifying the rule change will be a likely target of litigation, particularly in light of a recent district court ruling striking down the Trump administration's approach to the social cost of methane, which puts a dollar figure on the harm caused by emissions of the greenhouse gas...The rule falls into the Trump administration's pattern of finding ways to limit the scope of agency powers under the Clean Air Act to regulate planet-warming gases in years to come, said Hana Vizcarra, a staff attorney at Harvard Law School's Environmental and Energy Law Program. "It breaks with prior interpretation of the Clean Air Act in order to take a stance that could limit the ability of EPA to regulate greenhouse gas emissions from any source in the future," Vizcarra said. EPA's about-face on its definition of what methane sources actually get regulated under the new rule — particularly its exclusion of transportation and storage facilities — is a potential point for litigation, said Romany Webb, a senior fellow at Columbia Law School's Sabin Center for Climate Change Law. "I think there are some really good arguments to be made that EPA has not adequately justified that re-definition of the listing category, which really kind of is completely opposite to the position it took both in 2011 and in 2016," she said.

An article by Noah Feldman: The theory that Kamala Harris is ineligible to be vice president because her parents were not U.S. citizens is xenophobic and false. But it's not exactly the same as the birther conspiracy theory that said President Barack Obama wasn't born in the United States at all. Birtherism was a conspiracy theory based on a factual lie. Even debunking that kind of theory can be a bad idea because it tends to help the falsehood reach more people — some of whom then believe the lie. The anti-Harris theory, in contrast, is based on a fringe constitutional claim about the meaning of the words of the 14th Amendment. When it comes to constitutional claims, even extreme ones, it's important to explain why they are wrong in order to refute them. It’s therefore both valuable and necessary to explain carefully why this theory is incorrect as a matter of constitutional law. To do that, you need to start with the theory itself. It starts with the constitutional provision of Article II that says, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” (To be vice president, you have to meet the eligibility requirements to be president.) According to the attack theory, the meaning of “natural born” should be derived from the 14th amendment, which says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The attack on Harris’s eligibility focuses on the words “subject to the jurisdiction thereof.” The basic idea is supposed to be that those words modify the words “born in … the United States.” The theory asserts that children of non-citizens aren't subject to the jurisdiction of the U.S. If that is so, runs the argument, they aren't citizens.

An article by Cass Sunstein: The intense debates over school openings are missing something crucial: numbers. Without them, it’s essentially impossible to know what to do, or to evaluate what is being proposed. Here’s an analogy. Suppose that the Food and Drug Administration is contemplating a new food safety regulation, or that the Department of Transportation is considering new restrictions on railroads. The White House Office of Information and Regulatory Affairs is supposed to require it to identify the gains and the losses — the benefits and the costs. Those numbers might not be decisive, but they’re needed. In their absence, the decision whether to proceed, or not to proceed, is essentially a stab in the dark. To be sure, some numbers might be hard to specify. The agencies might not know enough to provide them. But officials have well-established techniques for dealing with that problem. For example, agencies might be asked to disclose the ranges, including the best and worst cases, and their respective likelihoods. It’s true that politics might intervene, and you might not be able to trust the numbers. But when the system is working well, they are checked and rechecked by people who know what they are doing, and aren’t affected by political considerations. The decision whether and how to reopen schools is being made by states and localities, not by Washington, and numbers need to inform those choices. The problem is that for school openings (and much more), we’re mostly hearing abstractions and generalities — expressions of agitation and fear. On the one hand, reasonable people are pointing to the immense strain on parents of having young kids at home and the many problems with online learning. On the other hand, reasonable people (including teachers’ unions) are pointing to the risk of an outbreak and a spike in deaths.

A post on Facebook claims Sen. Kamala Harris, D-Calif., cannot serve as president because of her parents' citizenship...Harris is a citizen of the United States and has been since birth. She was born in Oakland, California, on Oct. 20, 1964, according to Encyclopedia Britannica. Her parents were both immigrants — her father from Jamaica and her mother from India. By virtue of her birth in California, Harris is a natural-born U.S. citizen. The Citizenship Clause of the 14th Amendment provides that "all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." And that's not dependent on their parents' citizenship. "Anyone born on U.S. soil and subject to its jurisdiction is a natural born citizen, regardless of parental citizenship," according to the Cornell Legal Information Institute. Parental citizenship is relevant to an individual's citizenship status only if the individual is born outside of the United States...When Harris ran for president, similar claims about her citizenship and eligibility circulated online. At the time, Laurence Tribe, a professor of constitutional law at Harvard Law School, condemned the notion. “I can’t believe people are making this idiotic comment,” Tribe told the Associated Press in 2019. “She is a natural born citizen and there is no question about her eligibility to run."

President Trump on Thursday encouraged a racist conspiracy theory that is rampant among some of his followers: that Senator Kamala Harris, the presumptive Democratic vice-presidential nominee born in California, was not eligible for the vice presidency or presidency because her parents were immigrants. That assertion is false. Ms. Harris is eligible to serve. Mr. Trump, speaking to reporters on Thursday, nevertheless pushed forward with the attack, reminiscent of the lie he perpetrated for years that President Barack Obama was born in Kenya...Mr. Trump appeared to be referring to a widely discredited op-ed article published in Newsweek by John C. Eastman, a conservative lawyer who has long argued that the United States Constitution does not grant birthright citizenship. Ms. Harris, the daughter of Jamaican and Indian immigrants, was born in 1964 in Oakland, Calif., several years after her parents arrived in the United States...In an interview on Thursday, Laurence H. Tribe, a professor of constitutional law at Harvard Law School, compared Mr. Eastman’s idea to the “flat earth theory” and called it “total B.S.” “I hadn’t wanted to comment on this because it’s such an idiotic theory,” Mr. Tribe said, “There is nothing to it.” Mr. Tribe pointed out that the theory still quickly landed in the hands of a president who has used his pulpit to spread a number of conspiracies against his political enemies, particularly those who do not have white or European backgrounds.

The Trump administration on Thursday rolled back regulations aimed at reducing emissions of the potent greenhouse gas methane from oil and gas operations, its latest move to unwind environmental rules ahead of November’s presidential election. During a visit to election swing state Pennsylvania, U.S. Environmental Protection Agency Administrator Andrew Wheeler formally rescinded 2016 Obama administration limits on oil and gas industry emissions of methane, a move criticized by environmentalists when initially proposed last August. Wheeler said in Pittsburgh that new rules would save $100 million a year between 2021 and 2030. The rules will “fulfill President (Donald) Trump’s promise to cut burdensome and ineffective regulations for our domestic energy industry,” he said. Methane is the main component of natural gas. It is a more potent greenhouse gas than carbon dioxide but does not remain in the atmosphere as long...In addition to the rollbacks, the EPA also set up hurdles for a future administration to regulate methane by requiring the agency to make a finding that methane contributes significantly to air pollution before proposing new requirements. Joe Goffman, former EPA senior counsel and director at Harvard’s Environmental and Energy Law Program, said reducing methane from oil and gas is necessary to combat climate change. “The purpose of this rule is simply to strew baseless legal obstacles across that path, ensuring that after Trump and Wheeler are finally gone, their successors will have to struggle to achieve urgently needed methane reductions,” he said.

An article by Randall Kennedy: It is no surprise that universities have become targets of the activism erupting in the wake of the killing of George Floyd. University police forces have been implicated in racist malfeasance. Universities oversee labor forces which reflect the class and racial divisions partitioning society at large. Universities are the site of cultural battles over iconography (Calhoun College at Yale, the Woodrow Wilson School at Princeton, Washington and Lee), and the propriety of taking race into account in admissions. At a time when racial reckonings have visited the NFL and Nascar, The New York Times and Vogue, Minneapolis and Mississippi, it was inevitable that they would visit campuses, too. And they have. Recently, chairs of African American studies departments at Georgetown, Notre Dame, Fordham, and other Catholic universities and colleges asserted that “systemic racism and white supremacy are problems” at their campuses. “Symbolic statements, marches, token town halls, or other typical measures to pacify our campus communities,” they warned, are insufficient “while grave inequities persist.” A letter to the trustees and president of Dartmouth from professors and staff there called for the dismantling of “structures that implicitly or explicitly work against and devalue Black, Brown, and other people of color at Dartmouth.” Faculty and staff members at the University of Chicago set forth “a set of specific and immediate actions the [university] must take to begin to repair and redress its long history of willingly enabling and directly contributing to structural racism.” If their requirements remain unmet, they said, they will decline to participate in university affairs, urge colleagues at other institutions to boycott the university, and prevent the university from using their accomplishments to launder the “neglect and derision of people of color and scholarship and teaching on race.”

Top U.S. Department of Justice officials recently made the case for updating a decades-old law that dictates the process for making federal regulations, saying the cost and amount of rules has spiraled out of control, but the changes they seek appear to lack the bipartisan support they'd need in Congress. Several DOJ leaders, including Deputy Attorney General Jeffrey Rosen and Solicitor General Noel Francisco, said in a department report published this week that the Administrative Procedure Act should be amended to better control the activities of the "administrative state," which they criticized as having grown in size and effect far beyond what the drafters of the 1946 law could have envisioned. Republicans in recent years have failed in several attempts at legislation that would do some of what's been endorsed by the DOJ leaders, from giving Congress more oversight power to codifying stricter procedures for rulemaking...And while there may be some bipartisan support for changes to the APA at some level, the fact that it has become a political issue may make it more difficult to move legislation through Congress, Harvard Law School professor Matthew Stephenson said. "There are some pieces of the Regulatory Accountability Act and some of these other pieces of legislation that might attract some degree of bipartisan support, but at this point, my read of the politics on this is that as soon as Jeffrey Rosen and Noel Francisco and the president wrap their arms around this, it becomes toxic to Democrats," Stephenson said. He said some Democrats are convinced the APA reform effort isn't really about good governance but rather a "not-so-hidden agenda" of reducing regulation and regulatory costs for businesses. Even so, he said Republicans may be playing a long game by trying to keep the ideas in circulation until the GOP holds sufficient power to push the effort forward.

On May 8, Prager University, a nonprofit conservative media outlet, published a video on Facebook that incorrectly claimed “there is no evidence that CO2 emissions are the dominant factor” in climate change. Within days, Climate Feedback, a nonpartisan network of scientists and a member of Facebook’s global fact-checking partnership, rated the content as false — a designation that was supposed to result in serious consequences. It was PragerU’s second strike for false content that month, which under Facebook’s own policies should have triggered “repeat offender” penalties including the revocation of advertising privileges and the specter of possible deletion. But it didn't. As first reported by BuzzFeed News last week, a Facebook employee intervened on PragerU’s behalf and asked for a reexamination of the judgment, citing “partner sensitivity” and the amount of money the organization had spent on ads. Eventually, while the false labels on PragerU’s posts remained, Facebook disappeared the strikes from its internal record and no one — not the public, the fact-checkers, or Facebook’s own employees — was informed of the decision...Evelyn Douek, a lecturer at Harvard Law School, said that even though Facebook doesn’t want to be in the business of declaring what is true and false, it still makes a lot of choices in how it structures its policies and fact-checking program that leave it “in the driver seat.” “There will be a pretty big reckoning around fact-checking,” she said. “People don’t really understand it either and they see it as a panacea for problems on social media platforms.”

An article by Tomiko Brown-Nagin: As he forced his knee into George Floyd’s neck, Officer Derek Chauvin appeared chillingly indifferent to both the law and the life hanging in the balance, even when Floyd cried out, “I can’t breathe.” And why would he worry? During his 19 years with the Minneapolis Police Department, Chauvin received numerous complaints. Despite these incidents, his career continued. He never suffered the consequences that might have prevented George Floyd’s death. The protests against police brutality triggered by Floyd’s killing are unlike anything we have seen in this country since the civil rights movement. As in the 1960s, demonstrators, and the nation, face daunting barriers to reform. Today, one such impediment is qualified immunity — a doctrine created by the US Supreme Court in 1967 to prevent frivolous litigation against government officials. It provides broad protection from civil lawsuits, including suits brought against police who violate constitutional rights. Law enforcement officers cannot be held liable for civil rights violations — including death — unless the underlying conduct “clearly” disregards the law. But the degree of clarity that courts require to permit suits for civil rights violations to proceed is excessive to the point of absurdity. The doctrine, continually expanded by the court over time, sets far too high a bar for efforts to hold officers accountable for actions that intimidate, injure, and kill. It excuses conduct, however outrageous, merely because no prior court has ruled on the precise behavior in question. The decision just two weeks ago by US District Court Judge Carlton W. Reeves, in Jamison v. McClendon, captured it all. Reeves wrote that while the civil rights of the Black plaintiff, Clarence Jamison, had been violated by white Mississippi officer Nick McClendon, “Jamison’s claim cannot proceed.”

An article by Ashley Nunes: Uber and Lyft drivers are employees, not contractors. That’s according to a court ruling issued Tuesday. The ride-hailing giants had argued they shouldn’t be considered “hiring entities”. Ethan Schulman disagreed. Schulman, a judge for San Francisco’s superior court, said “substantial public harm will result” from preserving the status quo which deprives ride-hailing drivers of “the panoply of basic rights to which employees are entitled under California law.”  For the gig economy, it seems the jig is up. The ruling isn’t surprising. Ride-hailing companies have long tried to have it both ways; one moment arguing that drivers aren’t employees and the next, saying drivers should get government-sponsored coronavirus relief handouts typically reserved for full time workers. Last year, Uber argued its drivers weren’t employees because they weren’t ‘core’ to Uber’s business. After the pandemic hit, the company asked President Trump to provide, “support for independent workers”. It’s all about conserving cash of course. Employees are pricier than contractors and fiscal relief for workers (employees or not) makes sense as long as someone else picks up the tab. The court ruling will stunt the profitability aspirations of the ride-hailing companies. Uber chief Dara Khrowsrashahi had expected his company losses to not only taper in the near future but be vanquished altogether. That’s unlikely if Uber has to pony up to cover driver costs. Yet the real issue is that even before yesterday’s ruling, ride-hailing fares were heftier than personal car ownership. And that’s a big problem.

A California court Monday ruled that Uber and Lyft must reclassify drivers as employees rather than independent contractors. Employee status comes with many important benefits, like paid sick leave, unemployment insurance and subsidized health insurance. But Uber CEO Dara Khosrowshahi argued in a New York Times op-ed that it comes at the expense of flexibility, the lifeblood of the gig economy. He called for a new “third way” to classify and provide benefits to workers who fall somewhere between employee and independent contractor. Under existing labor law, workers in America have to be classified as either an employee or an independent contractor. Paul Oyer, an economist at Stanford University, said that binary system goes back to the early 20th century when work looked pretty different. “So the law isn’t perfect,” he said. “There’s a spectrum of possible work relationships. And we want to both protect workers along that spectrum, but also allow some amount of flexibility.” While the pandemic has highlighted the need for better protections for gig workers, most still prefer to be independent, according to one survey, so they can set their own hours. Gig platforms have argued that won’t be possible if workers are employees. “That is just untrue,” said Benjamin Sachs, a professor of labor law at Harvard University. “You can be an employee and have an entirely flexible work arrangement.” Many workers already do, especially now.