Media Mentions

To fight the ongoing coronavirus disease 2019 (COVID‐19) pandemic, public health officials have implemented a range of social distancing measures aimed at reducing the risk of person‐to‐person transmission of severe acute respiratory syndrome coronavirus 2 (SARS‐CoV‐2). However, physical separation can be nearly impossible in confined spaces such as jails, prisons, and detention centers throughout the United States. Indeed, experts believe that overcrowding, together with a lack of testing, inadequate infection control measures, and shortages of basic supplies for both staff and inmates, has fueled massive outbreaks in US correctional facilities. The revelations have spurred uncomfortable questions about how the facilities perpetuate and exacerbate racial disparities and how inadequate testing can blind public health officials to emerging hotspots...In March, Dr. Alsan and Crystal S. Yang, PhD, JD, AM, a law professor at Harvard Law School in Cambridge, Massachusetts, launched a project with the National Commission on Correctional Health Care to survey jails, prisons, and juvenile detention facilities across the United States. Over a 2‐month period, the collaborators received responses about COVID‐19 case counts, testing, and screening procedures and about ongoing challenges from hundreds of sites in all but a handful of states. So far, the data have revealed at least 2 startling findings. Toward the end of the weekly surveys, the researchers began asking facilities about the race and ethnicity of COVID‐19–positive inmates. “The incidence rate of cases and suspected cases for African Americans was, from week to week, anywhere from 2 to 4 times higher than for white inmates,” Dr. Yang says.

After several failed efforts to use the ADA, HIPAA and the Fourth and Fifth Amendments to fight mask mandates, those opposed to masks are adding a new tool to their arsenal: the Civil Rights Act of 1964...A website called The Healthy American is using the same argument to sell religious mask exemption cards. “Religious Exemption: The bearer of this card is LEGALLY EXEMPT from wearing any face coverings or being subjected to temperature taking, viral testing or vaccination, as protected by U.S. Federal Law, Title II of the Civil Rights Act, U.S. Code 42 ss 2000 (a),” reads the card, which @missioninactionpodcast shared on Instagram July 25. Through a quick visit to the site, individuals can purchase an identical card for a $12 donation. The exemption notice claims to be valid through Dec. 31, 2021, and is signed by pastoral representative David Hall...Harvard Law School professor Noah Feldman, who specializes in constitutional studies, with an emphasis on law and religion, said the Civil Rights Act of 1964 does not grant individuals religious mask exemptions. “The government can’t discriminate against you on the basis of your religion, but it doesn’t appear to be discriminating against you here by telling you to wear a mask,” Feldman told USA TODAY. “Contrary to what this card is saying, federal law cannot get you an exemption from a neutral, generally applicable state law."

A new report reveals that Instagram hid hashtags that criticized President Donald Trump while failing to protect those that criticized the presumptive Democratic nominee, former Vice President Joe Biden — an odd double-standard that the company insists was due to a "bug." The so-called bug resulted in a bias towards the content users would see about each presidential candidate. According to a report by the Tech Transparency Project (TTP), researchers analyzed the "related hashtags" that came up when they clicked on 10 different popular hashtags about Trump and 10 different popular hashtags about Biden...Harvard Law professor Laurence Tribe told Salon by email that TTP's discovery "raises no free speech issue under First Amendment law because Instagram is a private platform not subject to First Amendment constraints." He contrasted this with how Trump was barred by an appeals court from discriminating among Twitter users on the basis of their viewpoint, because "although Twitter is private, Trump is obviously a government actor." Tribe also noted that it was more "troubling" that Instagram as a private business decided "to confer on the incumbent president a massively valuable benefit – one worth more than mere dollar contributions in the tens of millions – while correspondingly harming his opponent in the forthcoming general election." He argued that this "unquestionably raises serious issues of impermissible in-kind corporate contributions to a presidential candidate, contributions that could well be found to violate federal campaign finance laws especially given their unreported and deliberately opaque character."

Days after entering office, President Donald Trump made a promise: He would eliminate two rules for every one signed into existence. Since then, he has sought to make good on that pledge and more – touting his reversal of a “regulatory assault” on the economy at a White House event on July 16, saying, “The American people know best how to run their own lives.” Although many Americans have praised the president’s deregulation efforts, many disagree with a loosening of rules that has been particularly sweeping in the arena of environmental policy. As the graphics with this story illustrate, more than 100 rollbacks have been launched, over issues as diverse as toxic substances, energy extraction, and Environmental Protection Agency (EPA) efforts to combat climate change. Some legal experts say that the changes, despite often resting on shaky scientific ground, could in some cases leave a lasting legacy – undermining the leeway of future environmental policymakers to set a different course. “They’re advancing these regulatory changes that create more flexibility, but in the process they’re trying to...reduce EPA’s authority well into the future to ever try to come back under a new administration,” says Caitlin McCoy, a staff attorney at the Harvard Law School’s Environmental and Energy Law Program. When the EPA replaced the Obama-era Clean Power Plan with the Affordable Clean Energy rule last June, it not only marked a momentous win for Mr. Trump’s deregulatory project. It also finalized a narrower meaning for the phrase “best system of emissions reductions” for the country’s power plants. The administration’s new legal interpretation could be tricky to undo, says Ms. McCoy. If elected president, Joe Biden would “have to confront the fact that, a year earlier, the same agency said they didn’t have that authority” to mandate cleaner electricity, she says. Administrations may change, “but through the lens of administrative law, it’s the EPA, and it’s supposed to have a certain amount of consistency all the way through.”

For workers fortunate enough to have been working remotely during the pandemic amid historic layoffs, thoughts about a return to the workplace are not just centered around plexiglass dividers, sanitizer dispensers, and separated workstations. Employees surveyed by NBC News had a whole range of concerns...While most employers say they will follow guidelines set by the Centers for Disease Control and Prevention, compliance is largely left up to businesses. With workers thankful to have jobs during record unemployment, most employees are afraid to flag any safety breaches or issues. However, the Occupational Safety and Health Administration, the federal agency in charge of workplace safety, has said it has received nearly 8,000 complaints about unsafe work situations related to COVID-19, according to the agency’s database. Over 6,500 of them have been closed. “OSHA is supposed to protect workers. All they’ve done is issue suggestions and voluntary guidance,” to employers,” said Sharon Block, former Assistant Secretary of Labor for OSHA and current executive director of the Labor and Worklife Program at Harvard Law School. OSHA has “turned everything over to employers to inspect themselves,” Block said. “If workers can’t rely on the federal government to stand up for them, they have to stand up for themselves.” Some workers have been fired for speaking up about conditions, she said. OSHA didn’t respond to an NBC News request for comment. Block recommended that concerned employees should document conditions at work and, if they feel unsafe, workers can consider leaving and filing for unemployment, using the unsafe conditions as justification. “But the employer can fight it, and then the employee is in a legal fight with their employer while trying to put food on the table,” she said.

An article by Noah Feldman: The attorney general of New York has sued to seek the dissolution of the National Rifle Association, alleging fraud and abuse in the way the NRA’s chief executive and other officials ran the operation. Given that the NRA has played such a powerfully destructive role in U.S. politics, fighting against gun regulations that demonstrably save lives, it’s tempting to react with applause. Yet even liberals who oppose the NRA’s mission should take a deep breath and ask: Do we really want an elected attorney general to try to destroy a prominent nongovernmental organization that is arrayed on the other side of the political spectrum from her? What if this were Alabama and the organization were the NAACP? Or Tennessee and the ACLU? If an organization has really fallen into a condition of fundamental corruption, a state attorney general can demand that it get new leaders, or replace its board of directors and its management in their entirety. Maybe New York Attorney General Letitia James is prepared to settle the case against the NRA with that sort of an organizational overhaul. But asking the court not to order the reform of the organization, but to dismantle and dissolve it altogether, creates the impression that the attorney general is trying to use the legal system to intervene in the very political dispute in which the NRA is such an important player: the fight over Second Amendment rights and gun control. It should go without saying that it would be entirely improper for a state official — or a federal official, for that matter — to use the awesome enforcement power of the government to target advocacy organizations with whose policies the official strongly disagrees. That is the kind of politicization of the legal system that President Donald Trump has tried to promote during his four years in office.

The Dakota Access pipeline could still be shuttered, despite an order late yesterday that thawed a district court freeze on the controversial project. The U.S. Court of Appeals for the District of Columbia Circuit yesterday blocked an earlier order to shut down and drain the pipeline, finding that a lower bench had not "made the findings necessary for injunctive relief" (E+E News PM, Aug. 5). At the same time, the D.C. Circuit is — at least for now — upholding the U.S. District Court for the District of Columbia's decision to vacate an easement for the pipeline's crossing beneath Lake Oahe. The D.C. Circuit found that U.S. District Court for the District of Columbia Judge James Boasberg hadn't abused his discretion by declining to send the pipeline's permit back to the Army Corps of Engineers without vacating it. The Army Corps is still required to conduct a more robust National Environmental Policy Act analysis to support the approval, pending review by the D.C. Circuit...To make those findings, the D.C. District Court would have to apply a four-factor test to the plaintiffs' argument in a separate analysis, according to the D.C. Circuit. Instead, the lower bench had concluded that "vacating the easement would automatically require the pipeline to be shut down," said Caitlin McCoy, a staff attorney at the Environmental and Energy Law Program at Harvard Law School. The D.C. Circuit suggested the district court could still choose to issue an injunction to shut down Dakota Access if the Army Corps plans to continue to allow the pipeline to operate without the easement that the district court had scrapped. If that happened, Dakota Access developer Energy Transfer Partners (ETP) could appeal the decision to the D.C. Circuit again, which could then choose to uphold or dissolve the injunction, said McCoy. "There's still a lot of legal back-and-forth ahead," she wrote in an email.

President Trump has routinely asserted his outsize view of presidential power, but his claim to unprecedented clout in recent weeks springs from an unlikely source: one of his defeats at the Supreme Court. Trump has asserted that with the stroke of a pen he can break through gridlock on immigration, health care, the stalemate on relief for those hurt economically by the coronavirus pandemic, even mail-in balloting. “The Supreme Court gave the president of the United States powers that nobody thought the president had,” Trump told Fox News interviewer Chris Wallace on July 19. On Wednesday, he said he might employ them on the payroll tax...The source of Trump’s recent bravado appears to be provocative articles by a law professor at the University of California at Berkeley whose expansive views of presidential power match Trump’s. John Yoo, the professor, has proclaimed Chief Justice John G. Roberts Jr.’s opinion stopping the Trump administration from dismantling the Obama-era program protecting young undocumented immigrants a blessing in disguise. He contends that it allows presidents to take even unlawful actions that can require years of legal battles to undo. To say that Yoo’s view of the court’s 5-to-4 decision on the Deferred Action for Childhood Arrivals program is an outlier would be an understatement. “I think he must be on some kind of drug,” said Laurence Tribe, a longtime constitutional scholar at Harvard. The court’s decision “did not even remotely provide a blueprint for the kind of lawlessness John Yoo seems to be trying to convince this president” to undertake, Tribe said.

An article by Laurence Tribe: President Trump acts like a petulant child, throwing tantrums, lobbing insults, even refusing to eat his veggies. Now his Department of Homeland Security (DHS) is following suit. When adults on the Supreme Court gave a clear directive, he and his DHS cronies crossed their arms, pouted, and simply said no. Donald Trump crashed into office on a wave of xenophobia. A campaign that began by calling Mexicans “rapists” crystalized around a concrete promise to end Deferred Action for Childhood Arrivals (DACA), an Obama program that delayed deportation and granted work authorization to undocumented individuals brought to this country as innocent children. He tried to fulfil his promise soon after taking office. In September 2017, his DHS secretary issued a memo purporting to rescind DACA. But the attempt failed. This past June, the Supreme Court declared the memo invalid, treating it as an executive order and finding it “arbitrary and capricious.” The court’s decision revived the version of DACA that existed before Trump’s rescission attempt. Two lower courts made this explicit in the weeks after the Supreme Court’s decision, unequivocally declaring that “the policy is restored to its pre–September 5, 2017, status.” The court reached the legally correct outcome. Chief Justice Roberts’s narrow decision rightfully chastised the administration for its sloppiness. While the chief justice rejected the challengers’ constitutional arguments to the effect that the rescission was substantively vulnerable on equal protection grounds because racially motivated (arguments I would have joined Justice Sotomayor in accepting), his decision saved a program that 80 percent of Americans support, including a majority of Republicans. This was a characteristically consensus-seeking determination from a chief justice who has masterfully guided the court through its most contentious cases.

At the beginning of the year, Kristen Seery had a home, a stable income and dreams of returning to school. Her dog-sitting business was bringing in enough money to cover her $1,025-a-month rent for a studio and living expenses for herself in Pawtucket. But when the pandemic brought her steady stream of pet care requests to a halt, she began struggling with rent. After paying in full for the month of February, she paid partial rent in March, applied for unemployment, and eventually informed her landlord about her financial situation. Seery began receiving unemployment in April. She and her landlord traded emails over the next three months, arriving at no resolution for a pandemic payment plan. Then in July, Seery, 37, found herself in court facing eviction a month after the state’s courts began re-opening...Preventing crises like Seery’s is the aim of a $7 million initiative between the state government and the United Way of Rhode Island. The Safe Harbor program started last month and is designed to head off evictions through mediation and rental assistance before court cases render tenants homeless. Funding comes from federal coronavirus relief... “I think the governor should be praised for extending the moratorium,” said Eloise Lawrence, deputy faculty director of the Harvard Legal Aid Bureau. But Lawrence said that move is just giving state leaders time to find a longer-term solution. “Scrambling around when people’s lives are at risk, makes absolutely no public policy sense, so what is really important now is that we don’t squander the time and the breathing room that we’ve created,” she said.

An article by Marty Blatt and David J. Harris: In light of the lynching of George Floyd and the subsequent Black Lives Matter uprising, we call on the city of Boston to engage in the ongoing conversation, initiated by Kevin Peterson and the New Democracy Coalition more than a year ago, about changing the name of Faneuil Hall. Indeed, this would be consistent with the decision of Boston to remove the copy of the memorial,  “The Emancipation Group,”  which depicts a standing Lincoln and kneeling black man gazing up at him. If the statue of a figure as revered as Lincoln is being removed, how can we retain the name of Peter Faneuil, a local merchant who became one of the wealthiest men in the colonies buying and selling human beings. Although most of us are aware of the Atlantic slave trade originating in Africa, historian Jared Hardesty has documented that Faneuil’s ship, The Jolly Bachelor, was involved in trafficking enslaved people throughout the West Indies and into New England. This smaller scale, inter-American slaving, Hardesty argues, was the primary way Bostonians participated in the slave trade. Indeed, as a successful merchant, Faneuil also extended credit to other New Englanders engaged in the slave trade and was, as such, a financier of white supremacy. Does having paid for the building warrant retaining the name in perpetuity, when doing so maintains a place of honor and respect? We might well ask whether Faneuil actually paid for the building or whether it was purchased by the lives and freedom of those he transported and sold. Some argue that Faneuil Hall, whatever its origins story, has ironically become known as the cradle of liberty, a historic site whose name has become associated with abolitionists and suffragists who spoke there. In removing the name of Faneuil, so this argument goes, history is being erased. We would counter that by retaining the name of Faneuil, we in Boston do a great disservice to history by concealing his true past. Many visitors to Boston and many Bostonians have no idea that Faneuil was a slave trader.

CGTN's Sean Callebs spoke with Jody Freeman, Professor of Law and Director of the Environmental and Energy Law Program at Harvard Law School about California's clean truck and other environmental initiatives.

The dawn of the nuclear age began with a blinding, flesh-melting blast directly above the Japanese city of Hiroshima on Aug. 6, 1945. It was 8:16 a.m. on a Monday, the start of another work day in a city of nearly 300,000 inhabitants. An estimated two-thirds of that population — nearly all civilians — would soon be dead. The dropping by American warplanes of that first atomic bomb, code-named Little Boy -- and another, code-named Fat Man, three days later in Nagasaki — led to Japan's surrender on Aug. 15, 1945, and the end of World War II. At the time, the morality and legality of those nuclear attacks was hardly the subject of public debate...Four years ago, President Barack Obama became the first American head of state to visit Hiroshima's Peace Memorial. He offered condolences, but pointedly did not offer apologies. "The morning of August 6, 1945 must never fade," Obama told a crowd gathered near the shell of the sole building left standing where the bomb exploded. "That memory allows us to fight complacency. It fuels our moral imagination. It allows us to change." Pope Francis took a more critical stance during a November visit to that same peace memorial in Hiroshima. "Using nuclear power to wage war is today, more than ever, a crime," the pontiff declared, adding it was immoral even to possess nuclear weapons. Some prominent experts in the law of war are also reexamining the Hiroshima attack. "There is no question that a dropping of a large nuclear weapon amongst the civilian population is a war crime," says Harvard Law School professor Gabriella Blum. "Under the current laws of war, if you know you are going to impact civilians, you must provide warning and you must take precautions to avoid harming civilians to the extent possible. There is no doubt none of that was considered and none of that was seriously weighed in reference to Hiroshima and Nagasaki."

Native Americans at Harvard react to a pair of recent legal and social advances from the Supreme Court and the NFL.

An article by Cass Sunstein: Universities have come under fire from many directions for discouraging students from speaking up. A number of conservatives have said that they risk ostracism, ridicule and even threats if they express their views, or if they simply question what they see as a liberal orthodoxy. Some women complain that men dominate class discussion, while some Black and other minority students say that they resent having to explain themselves, as if they were representatives of their race or ethnicity. Can online learning reduce the problem of self-censorship? All of a sudden, with the coronavirus changing how students engage with one another and their professors, that’s a pertinent question. For the many students who are inclined to self-silence, what’s needed is what Virginia Woolf described as “a room of one’s own” — a place of freedom to say what they think, “a quiet room or a sound-proof room,” one of safety and a kind of immunity. According to a recent poll by the Cato Institute, 62 percent of Americans are afraid to disclose their political views. The percentage of Republicans who say this is especially high (77 percent). But a majority of Democrats say so as well (52 percent). Independents also claim that they self-censor (59 percent). In universities, self-censorship can be a particular problem. As a general rule, students should feel free to say what they think, at least if it is relevant to the topic. Education depends on that. Yet most experienced teachers have heard plenty of students say, after class, “I thought the discussion was way off, but I didn’t feel comfortable saying so.” For every student who is willing to take the trouble to say that, how many just stand by in silence? Some students are afraid to disclose their political convictions.

A podcast by Noah Feldman: Osita Nwanevu, a staff writer at The New Republic, explains why he’s not worried about “cancel culture.”

On Friday, a federal appeals court threw out Dzhokhar Tsarnaev's death sentence and ordered a new penalty-phase trial, with the three-judge panel ruling that prosecutors failed to properly vet the jury for bias. To discuss, Jim Braude was joined by Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

For three long months in 2015, victims and their families were forced to endure the trial of Boston Marathon bomber Dzhokhar Tsarnaev, an emotionally devastating proceeding that concluded with an unremorseful Tsarnaev being sentenced to death for his role in a plot that left three dead and wounded hundreds. Now, they might have to do it all over again. From the moment last week that a federal appeals court vacated Tsarnaev’s death penalty sentence, citing issues with jury selection in the case, the prospect of enduring a second trial has hung over a city that had hoped to put this brutal episode behind it...Even as the death penalty has recently fallen out of favor with Americans, the Trump administration has made no secret of its support for capital punishment. After nearly two decades without a federal execution, Attorney General William Barr has ordered three executions to be carried out in the last month alone. And already, Trump has made it clear what he expects from the Tsarnaev case moving forward. “Death penalty!” he said on Twitter over the weekend, in response to news of the appellate ruling. “He killed and badly wounded many. Justice!” “This administration clearly has very much an agenda around capital punishment,” said Carol Steiker, a law professor at Harvard Law School. “They have made capital punishment an issue in an election year because they’re playing by the 1960s, ’70s, ’80s playbook — the tough-on-crime playbook that brought Richard Nixon into office.” “It’s just hard not to see that as political,” she added. “And if that’s right, you would expect them to really pound on the table with this one, because of all the emotion that’s raised by the heinousness of this crime.”

An article by Nancy Gertner, Martin F. Murphy, and Michael Keating: News reports following the First Circuit Court of Appeals’ decision granting convicted Boston Marathon bomber Dzhokhar Tsarnaev a new death penalty sentencing hearing rightly focused on the anguish of victims who may face another court proceeding and relive the trauma they experienced on April 15, 2013. Law enforcement was quick to express disappointment, some going so far as to blame the appellate judges for the victims’ ordeal should there be a second trial. Rick DesLauriers, who led the FBI’s Boston office in 2013, called the ruling an “unfortunate example of judicial activism.” The court’s careful, 224-page opinion tells a different story. At two critical moments in the 2015 trial, Tsarnaev’s defense lawyers made requests to ensure that the jury would be fair, and that jurors be given all the facts needed to decide whether Tsarnaev should live or die. Prosecutors objected to both. While their tactics may have helped win a death sentence, they also created a major risk that any death verdict would not stand on appeal, which is what happened last week. The two issues? The first concerned questions Judge George A. O’Toole Jr. asked potential jurors. The defense requested that the judge ask jurors a simple, open-ended question: “[w]hat did you know about the facts of this case before you came to court today (if anything)?” The answer would let O’Toole decide whether the juror could be fair. Prosecutors objected because hearing jurors’ answers to that question “would take forever.” O’Toole agreed, asking instead, “Whether as a result of what you have seen or read in the ... media you have formed an opinion” about the Tsarnaev’s guilt or the penalty, and whether you can set that opinion aside? That question left it up to potential jurors to decide whether they could be objective; the court would never know the information or misinformation to which they had been exposed.

Federal criminal prosecution of an ex-president is highly problematic. Even when justified on the merits, it opens the door to retribution by the other side and the criminalization of politics. Moreover, when the country is as polarized as the United States is now, a criminal trial would surely inflame emotions and make the country practically ungovernable. And, as we learned during the Mueller investigation and impeachment, it can be difficult to assemble evidence for actions the president took in office because of executive privilege (the qualified one as opposed to the bogus “absolute” privilege the Supreme Court shot down in July). However, state prosecution for actions that precede a presidency avoids these pitfalls. And that may well be where we are headed with President Trump...The Times explains that prosecutors “cited newspaper investigations that concluded the president may have illegally inflated his net worth and the value of his properties to lenders and insurers. . . [and] an article on the congressional testimony of his former lawyer and fixer, Michael D. Cohen, who told lawmakers last year that the president had committed insurance fraud.” Trump denies all wrongdoing (and has assiduously hidden his taxes from view), but a grand jury continues to investigate. The filing should send panic rushing through the Trump empire. “The serious state crimes by Donald Trump and his enterprises that Cyrus Vance has indicated he is pursuing as Manhattan DA cannot be shielded from prosecution by any invocation of presidential immunity, nor are they beyond the reach of prosecution and punishment by virtue of time,” constitutional scholar Laurence Tribe tells me. “The ongoing pattern of financial fraud and deception quite plausibly establishes an inseparable criminal scheme that prevents the statute of limitations from taking even the earliest instances of felonious conduct by Trump and his co-conspirators off the table.”

An article by John Ketcham '21 and Michael Hendrix: If employees return to physical workplaces after months of lockdown, they face a conundrum: take public transit, at a time when many fear crowds and COVID-19, or drive alone. If enough workers opt for the latter, New York City will face the prospect of calamitous traffic – a veritable “carpocolypse.” In New York City, traffic is recovering faster than the city itself: subway ridership is still down nearly 80% from last year while vehicle volume into Manhattan is only 15% off pre-pandemic levels. Yet a third option exists, one that can help alleviate the ills caused by coronavirus and commuting: build more housing within walking distance of workplaces. The coronavirus pandemic has exposed a vulnerability of urban America. Each day, armies of workers commute by public transit and personal automobile to their jobs and back. These daily migrations render cities dependent on extensive transportation infrastructure, each part of the system dependent on others — which may increase the risk of viral spread. Though it is easy to blame elected officials’ responses to coronavirus, this lack of resilience derives in part from the way post-war American metropolitan regions have been centrally planned and built. Unlike the traditional mixed-use neighborhood, which satisfies residents’ basic needs for food, work, and leisure within close proximity, sprawling post-war cities and suburbs require the typical American to work in one place, shop in another, and live somewhere else entirely. The separation of business districts and housing has social costs.