Media Mentions

An article by Andrew Manuel Crespo: This past week, the Department of Homeland Security held a news conference to clear up a few things about the federal paramilitary police force grabbing protesters on the streets of Portland, Ore. If the goal was to reassure everyone that these armor-clad agents were acting lawfully, it did not go well. Instead the conference revealed, with painstaking clarity, a very big problem: The deputy director of President Trump’s new federal police force does not know what the word “arrest” means. This isn’t just semantics. In our legal system, the definition of the word “arrest” is critical because it marks an important dividing line under the Fourth Amendment. For an arrest to be legal, it must be supported by probable cause. That means the arresting officer must be able to point to specific facts that would make a reasonable person think that the person being arrested committed a specific criminal offense. By contrast, if the police have a noncoercive, consensual interaction with a civilian (sometimes called a “contact” or an “engagement” in law enforcement lingo), then the person has not been “seized” for Fourth Amendment purposes, and the police do not need to explain or justify why they approached the suspect in the first place. In other words, you can think of the word “arrest” as an on-off switch for the Fourth Amendment’s essential protections. When the police arrest someone, they are constrained by the Constitution. Before then, the Constitution’s protections are substantially weaker — if they exist at all. Given the central importance of the word “arrest” in the constitutional law of policing, it is chilling to see a commanding officer of a law enforcement agency demonstrate a basic misunderstanding of its meaning.

The wireless industry urged a California federal judge Thursday to find the city of Berkeley, California's wireless disclosure ordinance violates the First Amendment, saying the Federal Communications Commission supports the trade group's view that cellphone retailers need not warn customers about potential harm from radiofrequency emissions. CTIA – The Wireless Association, a trade association composed of U.S. wireless communications companies including AT+T, Verizon, Samsung and Apple, urged U.S. District Judge Edward Chen to grant its bid for judgment on the pleadings that Berkeley's ordinance violates free speech laws and is preempted by federal regulations...An attorney for Berkeley, Lawrence Lessig of Harvard Law School, brushed aside the FCC's letter of interest, saying that it merely reflects the views of the FCC's general counsel, who is appointed by the FCC chairman, who in turn is appointed by the president. Lessig said that the FCC's general counsel clearly has views about what the policy is and voices those views, but that they are not necessarily the agency's. Lessig told Law360 after the hearing that the FCC's general counsel had become "extremely activist" and "extremely aggressive" in his pursuit of his policy preferences. But Lessig said this case calls into question to what extent the general counsel can establish policy for the FCC. The lawsuit stems from a 2015 ordinance requiring phone sellers to inform customers that holding an internet-connected mobile phone close to their skin — such as "in a pants or shirt pocket or tucked into a bra" — could expose users to too much radiofrequency radiation.

There’s no dispute that the federal government’s decision to dispatch officers to Portland, Ore., has exacerbated protests in the city. The Department of Homeland Security pointed to weeks of vandalism at the federal courthouse as a rationale for the deployment, but the presence of the DHS officers and their often heavy-handed tactics has resulted in an expansion of the size of the protests and the number of conflicts...Harvard law professor Andrew Crespo, on Twitter earlier this week, outlined a significant constitutional problem with the Portland detention captured on video. He pointed out that the official excuse for seizing the demonstrator was that he had been in an area where another person was pointing a laser device at officers’ eyes. But that isn’t sufficient for probable cause, Crespo noted, meaning that the arrest violated the protester’s Fourth Amendment rights. In a phone call with The Post, though, Crespo highlighted a more significant part of the incident. Instead of charging the protester with something, they simply let him go. The same thing happened to Pettibone. To a layperson, that seems like good news. But from an accountability standpoint, it's problematic. “If you push them out the back door of the station house and they never get charged, there’s not a case,” Crespo said. “They’re not going to be a defendant who can to raise the Fourth Amendment issues in a protective posture by trying to suppress any evidence.” “Which means that if there’s going to be judicial review,” he said, “it’s got to come the other way: That person has to go out and sue these agents or the department.” “It’s much harder to bring that sort of suit as a plaintiff,” he said, “than to raise these questions as a defendant. And the government gets to control who’s going to be a defendant or not by deciding who to charge or not.”

Unidentified federal officers in Portland  — and soon, in Chicago and Albuquerque —have been arresting and detaining protesters in unmarked vehicles, sometimes far away from the federal buildings they're purportedly there to protect. In one notable instance, two federal officers grabbed a man off the sidewalk and, without identifying themselves or giving a reason, put him in an unmarked van and drove off to question him. The Department of Homeland Security claims the officers' tactics here are lawful. Harvard Law professor Andrew Manuel Crespo says they are decidedly not. "The person in charge of this newly beefed-up, paramilitary federal police force doesn't know what an arrest is," he says of Federal Protective Services Deputy Director Chris Cline. "It means he doesn't know when they're violating the fourth amendment — like they unquestionably did." Listen to Professor Crespo explain why the officers' conduct is unconstitutional — and why he finds it frightening that authorities seem to think otherwise.

A local environmental group believes that Indiana’s Right to Farm Act violates the federal constitution, and they are asking the U.S. Supreme Court to weigh in. The Hoosier Environmental Council has teamed up with a Harvard Law School Clinic and together they filed a petition with the nation’s highest court on July 17 asking it to review the case. This petition comes nearly 5 years after this case first began in an Indiana trial court, and roughly 7 years after an 8,000-hog factory farm moved in next to two Hendricks County couples and allegedly began causing harm...Right-to-farm laws started to grow in prominence around the nation in the 1970s and 1980s, and Indiana’s was enacted in 1981. These laws were enacted as a way to protect existing farmers from urban sprawl as city-dwellers moved to the countryside unprepared for the smells of agriculture. Such newcomers could not sue for nuisance as they moved to or “came to the nuisance,” said Andy Stawasz '21, a Harvard Law student who worked on the petition to the Supreme Court...Prior to starting the CAFO, the land did undergo a change: In 2013 it was rezoned from “agriculture residential” to ”agriculture intense.” And prior to the 2005 amendment, Katherine Meyer feels confident that this change would have been grounds for nuisance claims under the law. “It would have been cut and dry because they were there first and then the nuisance came in,” said Meyer, the executive director of Harvard’s Animal Law and Policy Clinic that worked on the petition with Ferraro. “Now they can’t sue for damages and they can’t get the value out of their house. It just doesn’t seem fair, let alone the legal and constitutional issues.”

This Sunday marks the 30th anniversary of the day the Americans with Disabilities Act was signed into law, making it illegal to discriminate against people living with disabilities in regard to employment and access to government services. The Gazette spoke with Michael Ashley Stein, J.D. ’88, co-founder and executive director of the Harvard Law School Project on Disability, to learn more about the significance of the ADA and what it has meant for the people it protects over the past 30 years. Stein also addressed what Harvard has done since then to expand accessibility on its campuses, and provided perspective on what challenges and opportunities lie ahead.

A podcast by Noah Feldman: Roxane Gay, the best-selling author of Bad Feminist and Hunger and the co-host of the podcast Hear to Slay, discusses her new short story "String Theory."

An article by Noah Feldman: If there really is a law enforcement problem in American cities, why hasn’t President Donald Trump sent the FBI to fight crime in Portland, Oregon? Or the DEA to fight violence connected to drug trafficking in Chicago? Why is he sending in special, paramilitary units from the Department of Homeland Security whose job is to enforce immigration laws? A closer look shows why Trump’s use of these officers is so troubling. Federal law enforcement agencies like the FBI and DEA have well defined responsibilities and are institutionally committed to carrying them out, not exceeding them. FBI agents are trained to understand that their job is to investigate federal crimes. DEA agents are trained to know that their job is to investigate federal drug crimes. Agents in both institutions are accustomed to working closely with federal prosecutors. The DHS units that Trump is deploying are something else again. According to the DHS, it has deployed officers from several paramilitary units in Portland, including the Border Patrol Tactical Unit, Border Patrol Search, Trauma and Rescue and Special Response teams. These units, from the DHS departments of Customs and Border Protection and Immigration and Customs Enforcement, have nothing to do with policing ordinary street crimes. Yet that is what they are doing in Portland. The reason these units are part of CBP and ICE is that their job is to target non-citizens. There’s no reason to think they have the relevant training, experience, institutional knowledge or expertise to deal with citizens, protests or street crime. Nor is there any reason to think that these units are accustomed to working closely with federal prosecutors who could be expected (in theory at least) to make sure that their activities complied with relevant federal law.

Professor Michael A. Stein, executive director of the Harvard Law School Project on Disability, details advances nationally and at the University.

An article by Laurence Tribe: We are being confronted in city after city with a nationwide paramilitary force, its troops unidentifiable and its vehicles unmarked, directed in deliberately vague terms to protect property and preserve domestic order. It began in Portland, Oregon where chilling video shows men in combat gear seizing unarmed protestors, packing them into rented minivans and driving off. Some victims of these kidnappings remain in the dark about their abductors even after being freed. In one dystopian scene, a Portland man was seized, blindfolded, transported, imprisoned and finally released — without once being told who had abducted him and why. Widespread criticism of these secretive police has not cowed the president. Instead, egged on by his lackeys, Trump plans to expand this paramilitary force. He has mobilized 2,000 agents from Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Coast Guard, placing them on standby to quickly deploy domestically. If Trump’s words are to be believed, these troops are staring down the barrel at Chicago, Detroit, Philadelphia and more. This astonishing federal takeover of public streets and spaces previously devoted to peaceful protest has targeted jurisdictions and individuals selected specifically (and at times admittedly) for their dissent from the policies of the incumbent national regime. Portland has seen 54 consecutive days of protests -- the vast majority peaceful — in the wake of the killing of George Floyd. Chicago, Trump’s next target, has seen similar dissatisfaction. Boston, a city with Democratic leadership that proudly proclaims “Black Lives Matter,” could be next on the list. If the militia descends on Boston, our city’s leaders can and should arrest and prosecute anyone who unlawfully assaults and kidnaps civilians. The district attorney of Philadelphia has already promised as much.

“Dump potatoes in the rivers. … Slaughter the pigs and bury them, and let the putrescence drip down into the earth,” John Steinbeck wrote in “The Grapes of Wrath.” “There is a failure here that topples all our success.” Steinbeck’s lament against food waste is eerily relevant today, as supply-chain disruptions from the coronavirus pandemic have continued to force farmers to euthanize hogs they can’t sell and bury excess potatoes. Even before COVID-19, Americans, on average, were tossing away more than a pound of uneaten food per person each day, amounting to some 400 pounds of food thrown out annually. That’s far more than any other wealthy country — about 50% more food waste per capita than France and nearly double that of the U.K...Lawmakers also need to clear up confusion around expiration dates on perishable foods, which vary wildly from state to state. “Date label confusion wastes massive amounts of food,” said Emily Broad Leib, who directs the Food Law and Policy Clinic at Harvard Law School. “Supermarkets lose about $1 billion a year from food that expires in theory — but not in reality — before it’s sold.” There is currently a bill pending in the House (H.R.3981) that would clear up such confusion and cut down on waste. Introduced by Maine Democrat Chellie Pingree and Washington Republican Dan Newhouse in 2019, it would standardize dozens of different date-labeling laws and give consumers a clearer understanding of how long their fresh foods are safe to eat. According to Leib, the act has been shelved during the pandemic, because standardizing data is time consuming and the benefits would not be realized immediately. Legislators can also think bigger: One idea being pushed by Leib and other advocates is to allow farmers to receive a tax credit, rather than deduction, for donating their surplus to food banks. Enacting such a measure would quickly help move the mountains of uneaten produce, now rotting on farms, to the hundreds of food banks and pantries reporting surges in demand.

Mutale Nkonde is a fellow at the Berkman Klein Center for Internet and Society at Harvard University, where she researches the intersection of race and technology. She shares what she expects from Facebook's actions.

Jana Alexander was furloughed from her job at The Container Store when the pandemic began in early spring. With the economy reopening, the company recently invited her back to her old position at her store in Southlake, Texas. But there was a catch. Alexander would have to sign an arbitration agreement, giving up her right to sue The Container Store in court if she was mistreated. Her welcome-back letter made clear she had little choice in the matter if she wanted to draw a paycheck: “This job offer is contingent upon agreeing to our Mutual Agreement to Arbitrate which we will ask you to sign on your first day on the Payroll website.” Alexander, 61, refused to return to work because her husband has lung cancer and is at high risk of contracting the coronavirus. But she said her colleagues, many of them women in their 60s, would have little choice but to sign away their legal rights to avoid financial ruin...But Terri Gerstein, a labor law expert at Harvard Law School, said the situation at The Container Store underscores an absurd assumption in that ruling: that such agreements are mutually agreed upon and not coercive. “Arbitration agreements aren’t agreements in any sense of the word, because workers don’t have a choice about signing them: If you don’t sign, you can’t get the job,” Gerstein said in an email. “What options do workers have but to sign, especially now, in light of high unemployment rates, as well as the likelihood of losing unemployment insurance if they turn down a job.” She added, “Employers shouldn’t use ... the post-furlough return to work as an opportunity to impose unfair new conditions on workers.”

The private data mining company Palantir is best known for its work with law enforcement agencies, like Immigration and Customs Enforcement and local police departments, the intelligence community and the Department of Defense. It has received considerable criticism for helping the Trump administration track immigrants. But in recent months and with the debut of its stock on public markets approaching, Palantir has a new focus: tracking the fast-spreading coronavirus. According to U.S. procurement records reviewed by NBC News, Palantir has been awarded contracts worth more than $42 million with federal agencies on the pandemic response. That includes two contracts in April worth $24.9 million with the Department of Health and Human Services to build a new platform, HHS Protect, which will aid the White House coronavirus task force's efforts to track the spread of the virus. HHS awarded Palantir an additional $2 million in May...In April, Palantir’s president, Shyam Sankar, called the pandemic the new “driving thrust” of the company. Robert Greenwald, a professor and the director of the Center for Health Law and Policy Innovation at Harvard Law School, said that turning to a firm known for its work in deportation will discourage immigrants from getting the health care they need. “Companies like Palantir have made their choices and they have gone in a direction that does not make them appropriate for sensitive public health projects,” Greenwald said.

Acting Department of Homeland Security (DHS) Secretary Chad Wolf and one of his subordinates  appear to have admitted their agents have been making unconstitutional arrests of Black Lives Matter protesters in Portland during a series of public appearances. Here’s the exact comment. “Anytime that you attack a federal facility such as a courthouse in Portland that is a federal crime,” Wolf told Fox News host Martha MacCallum on Tuesday night. “Attacking federal police officers–law enforcement officers–which they have done for 52 nights in a row is a federal crime. So, the Department, because we don’t have that local support, that local law enforcement support, we are having to go out and proactively arrest individuals and we need to do that because we need to hold them accountable.” Anticipatory arrests, of course, are prohibited under the U.S. Constitution...Harvard Law Professor Andrew Crespo summed up the constitutional issues with the Kline-Wolf approach. “I don’t know if shining a laser at someone is a federal crime,” he wrote. “It doesn’t matter. The police do not have probable cause to arrest you just because you are standing near someone else who may have committed a crime.” The U.S. Supreme Court, Crespo noted, weighed in on this issue in a landmark Fourth Amendment case from 1979. In Ybarra v. Illinois, a 6-3 majority of justices concluded that a state statute allowing police to search people on the premises of a location where a valid search warrant is executed violates both the Fourth Amendment’s prohibition against unlawful searches and seizures as well as the 14th Amendment’s guarantee of Due Process...Eventually, Cline said, the protester was released “because [DHS] did not have what they needed.” “Translation: They did not have probable cause,” Crespo stated.

Judy Heumann remembers the day she went to register for kindergarten in 1952. She’d gotten dressed up and her mother had pulled her wheelchair up a flight of stairs before the principal intervened. Her disability, he said, meant she was not allowed to attend the school. Heumann had polio as a child, and it left her legs paralyzed and limited her use of her hands and arms. Throughout her time in the educational system, and after she graduated and became a teacher and activist, she had to fight for access at every turn...The ADA was designed to protect people with disabilities against discrimination and to ensure that they can participate fully in employment, state and local government services, public accommodations, transportation and telecommunications. The results today are powerful: most public buses have lifts for wheelchairs; disabled children attend school alongside their nondisabled peers; and employers are generally aware that people with disabilities have civil rights they cannot violate. But if the 61 million Americans with disabilities are now less likely to confront the same problems that Heumann did decades ago, their fight for true equality is far from over. “The ADA is ultimately a promise that has been tremendously impactful in some areas and has yet to be fulfilled in other areas,” says Ari Ne’eman, a senior research associate at the Harvard Law School Project on Disability and the co-founder of the Autistic Self Advocacy Network... Ne’eman, who is writing a book about the history of American disability advocacy, says the increase in people publicly embracing their disability as part of their identity has played an important role in shaping new public attitudes.

An article by Daphna Renan: The Supreme Court ended this term with two blockbuster decisions on the presidency and the separation of powers. Trump v. Mazars and Trump v. Vance both concern similar subpoenas, issued by congressional committees and the New York district attorney’s office, respectively, for information about the finances of Donald J. Trump, the individual (as well as his children and affiliated businesses). Of course, although these subpoenas concern personal finances and private business dealings, they pertain to the person who today serves as the nation’s chief executive. The opinions reveal a Supreme Court grappling with the implications of the president’s “two bodies”—the inseparable duality of the individual president and the institutional presidency. The president is both a human being, with human failings, and an institution co-equal with Congress and the Supreme Court. In an article, published this week in the Columbia Law Review, I argue that this duality is the defining ambiguity of the constitutional office of the president. Seemingly disparate debates on topics ranging from presidential impeachment, to litigation settlements involving the executive branch, to the legal status of presidential tweets, to the remedies available for presidential misconduct reflect this long-standing, ongoing ambivalence about the nature of the presidential office. The two-bodies prism can elucidate the controversy at the crux of the subpoena cases: Mazars is rooted in the principle that the two bodies are inextricable, their boundaries difficult to define. Vance cautions, however, that public law must not entirely collapse them. In this sense, the duality provides a normative justification for both opinions.

The pool of American workers on the front lines of the coronavirus pandemic is getting a lot bigger. The big picture: Just as grocery and delivery workers found themselves fighting a crisis they didn't sign up for back in March, teachers, hairstylists and temperature checkers are part of a new wave of workers who are now in harm's way as the pandemic rages on. "This is a new group of essential workers," says John Logan, a U.S. labor historian at San Francisco State University. "They're people who never thought they’d be putting their life on the line by going to work." By the numbers: There are already around 55 million Americans working front-line jobs — defined as jobs that require exposure to a large number of people who could potentially carry the virus. Now add to that millions of teachers, retail sales reps, nail techs and other professionals who have returned or will return to work in the coming weeks as their workplaces reopen. "With most of the country reopening — whether it's safe or not — workers in so many occupations are put in the untenable position of having to choose between being able to sustain their families or putting their health at risk," says Sharon Block, executive director of the labor and work-life program at Harvard Law School. Teachers are under tremendous pressure as some cities and states push forward on reopening schools. 1 in 4 teachers — nearly 1.5 million people — are at a heightened risk of serious illness if infected by the coronavirus, per a report from the Kaiser Family Foundation.

When Emma Mancha-Sumners saw her school district’s proposed schedule for remote learning this fall, she knew it wouldn’t work for her or her kids...Mancha-Sumners looked into forming a “pod” of families that could at least provide some socialization for her children, who haven’t seen their friends since schools closed in March. She co-created a Facebook group for local families seeking to set up pods, and quickly discovered that many parents were looking for learning pods, which would be run by teachers or tutors and allow families to navigate distance learning. Many families estimated they would each pay $700 or more per month for teachers...Parents are being forced to make difficult choices. Some are leaving their jobs and closing down their businesses. Others are spending thousands of dollars to make sure their children are safe and learning each day. And many more have no idea how they’ll cope with an impossible decision: work or care for their children. The situation is especially dire for single parents, low-income families and those without flexible jobs, who rely on in-person school so they can go to work each day...Experts say the lack of federal, state and district-led solutions for parents means families are on their own, and that will only exacerbate education gaps that already exist. “There’s always an equity issue in the United States, even in non-Covid times,” said Elizabeth Bartholet, professor of law at Harvard Law School and faculty director of Harvard’s Child Advocacy Program. “But now, when kids are at home, privileged parents are going to be able to hire tutors and teachers. They tend to have more flexible schedules, and they will be able to provide a better education for their children than less-privileged parents. Kids who are poor, and Black or Latino kids are disproportionately poor, are more at risk of not learning.”

An article by Noah Feldman: Having sent officers from the Department of Homeland Security to Portland, Oregon, President Donald Trump is now saying that he will send more federal agents to other U.S. cities to fight crime. His actions, already heavily criticized by elected officials in Oregon, raise serious constitutional questions. How and when may the president deploy armed federal officers across the country? What are the limits? And, what if anything, can states or citizens do about it? The president, as head of the executive branch, has the constitutional duty and authority to “take care” that the laws of the United States are faithfully executed. This includes sending federal officers to protect federal property and enforce federal law. Good examples aren’t hard to find. When President Barack Obama’s administration sent federal officials to confront Cliven Bundy in 2014, that was perfectly lawful and constitutional. When a citizen claims that the federal government does not own federal land, it can be appropriate for the government to demonstrate that it in fact does own that land. Similarly, although of much greater moral significance, President Dwight D. Eisenhower sent the 101st Airborne to enforce federal law and the Constitution by integrating the Little Rock schools in 1957. This was an extraordinary act, but entirely legitimate in light of the state of Arkansas’s open resistance to the authority of the U.S. Supreme Court. Most famously, President Abraham Lincoln sent federal troops to suppress the secession of the Confederate states based on the argument that he must enforce federal law and protect federal property, including Fort Sumter. Yet these executive rights and responsibilities are extremely different from what Trump is presently doing.

A podcast by Noah Feldman: Debo Adegbile, who twice defended the Voting Rights Act before the Supreme Court, discusses John Lewis’ legacy.