Media Mentions

On Friday, a federal appeals court overturned the death penalty verdict for Boston Marathon bomber Dzhokhar Tsarnaev, ordering a new penalty-phase trial be held. On Sunday, President Trump responded to the ruling, tweeting that "the federal government must again seek the Death Penalty in a do-over of that chapter of the original trial." So will Boston see another death penalty trial for the Boston Marathon bomber? We talk with Nancy Gertner, WBUR Legal Analyst, retired federal judge, and senior lecturer at Harvard Law School, and David Boeri, WBUR reporter emeritus.

An article by Noah Feldman: In nearly four years in office, President Donald Trump has challenged the independence of the judicial branch more than any other president. He’s accused judges of being “Obama judges” or “Mexican judges.” When he’s been investigated for corruption or obstruction of justice, he’s routinely portrayed himself as above the law. He’s directed his administration to issue a spate of unlawful executive orders. With the November election looming, it’s a good time to ask: Can the legitimacy of the federal judiciary survive another four years of this president? There are reasons to hope that it could. Although Trump has named numerous district court and appellate judges and two Supreme Court justices, the courts have nevertheless mostly held the line against his efforts to subvert the rule of law. Indeed, in the recent Supreme Court term, the justices did better than that. Majorities blocked Trump from rescinding DACA and held that the New York district attorney could subpoena his business records. The verdict on the courts’ ability to maintain independence over the last four years is mainly positive. Yet there are also reasons to worry. If Trump is given another four years and a Republican Senate, he will get to name a lot more lower court judges. And barring a medical miracle, he would very likely get to replace Justice Ruth Bader Ginsburg, who is 87 and suffering from a recurrence of cancer. He might even get a chance to nominate a successor to Justice Stephen Breyer, now 81.

In July, a climate task force convened by Democratic presidential candidate Joe Biden embraced a 2030 goal of zeroing out greenhouse gas emissions from all new buildings. The plan followed a wave of climate activism targeting buildings, which are often the biggest source of urban emissions as they draw electricity from the grid and guzzle natural gas for heat. Dozens of cities in California and Massachusetts have sought to restrict the use of gas in new structures, provoking pushback by oil and gas associations, utilities, and other groups. But efficiency researchers say activists' favored alternative to natural gas — electric heat — is still a costlier option for consumers. Mass adoption of electric heating could overload the grid without significant infrastructure upgrades, other analysts warn. And an all-electric push would drag gas utilities into an existential fight, experts say, creating risks to ratepayers and company workforces...California cities have faced their own headwinds enacting bans. Berkeley has been sued by the state restaurant association — a group backed in part by gas utilities — saying chefs depend on "the intense heat" provided by a natural gas flame. This spring, a union representing employees of Southern California Gas Co. (SoCalGas), the nation's largest gas distributor, managed to postpone a vote over a gas ban in San Luis Obispo by threatening to bus in attendees without observing social distancing, the Los Angeles Times reported. Caitlin McCoy, a staff attorney at Harvard Law School's Environmental & Energy Law Program, said recent battles over gas bans remind her of the conflicts over hydraulic fracturing, in which local and state officials vied for the upper hand in deciding where drillers should be allowed to operate. "All of that has come roaring back with these different natural gas ordinances," she said.

President Trump seems determined to sow confusion and chaos ahead of the 2020 election. Laurence Tribe says the president is trying to make the election ‘look chaotic’ and mentions a ‘fail safe’: President Nancy Pelosi.

An article by Kenneth Mack: The air was hazy on a January night in 2018 when Isabel Wilkerson, the journalist and author of a much-lauded narrative account of the Black migration out of the American South, arrived in Delhi. Wilkerson’s visit had been prompted by a book she was writing that used the Indian caste system to illuminate America’s racial hierarchy. It was her first trip to India, but one aspect of what she saw there seemed instantly familiar. She quickly discovered that, as an African American woman schooled in the folkways of race in her home country, she could easily distinguish upper-caste Indians from Dalits, or Untouchables. In turn, “Dalits . . . gravitated toward me like long-lost relatives.” Patterns of deference and social performance marked caste onto her hosts’ bodies, even when Indians did their best to shake them off. Wilkerson spent much of the 2010s researching and writing her book, just as the United States was moving in a direction that seemed to validate its thesis. A series of killings of African Americans, often by police officers, helped birth a new anti-racist social movement. Athletes knelt, monuments to slavery began to come down, reparations for enslavement and its long aftermath became a mainstream idea, and the politics of White grievance took over the White House. When she finished her book, she titled it “Caste: The Origins of Our Discontents.” Wilkerson’s thesis is that Americans’ current obsession with race is somewhat misplaced, for there is a deeper and more intractable system that hides behind the chimera of race, and that system is properly called American caste.

An article by April Xiaoyi Xu '21: American singer-songwriter Taylor Swift has always been a phenomenon, from becoming the youngest artist to be signed by Sony/ATV Music, to maintaining her status as one of the world’s most popular singers for more than 10 years consistently, to frequently receiving top music awards, to developing a reputation for serial-dating famous men, to audaciously taking her entire catalog off Spotify to protect her copyrights, to being openly vocal about politics despite previously insisting on being “a good girl” who does “what everyone else wants” her to do...As a Bloomberg article boldly declares, “Taylor Swift Is the Music Industry.” However accustomed the world is to perceiving Swift as a trailblazer, the Internet exploded again when Swift filed a number of trademark applications with the United States Trademark and Patent Office (“USPTO”) for phrases from some of her popular song lyrics, having already trademarked her full name and initials “T. S.,” as well as the term “Swiftie(s)”—the nickname for her fans. These phrases include “Nice to meet you. Where you been” and “could show you incredible things” from the song Blank Space, and “cause we never go out of style” from the song Style. Both of these love songs are from the album 1989, which, in itself, is not only the year of Swift’s birth, but also the subject of another phrase that Swift trademarked: “party like it’s 1989.” After releasing her new albums Reputation (Big Machine, 2017) and Lover (Republic, 2019), Swift continued her “trademark play” by applying for trademarks for phrases including “the old Taylor can’t come to the phone right now” from Look What You Made Me Do and the word “Lover” from her 2019 album. Although not all of her applications succeeded, a sizable number of them were approved by the USPTO, making Swift perhaps the first musician to trademark lyrics.

Members of the One Percent, such as former restaurateur Andrew Puzder, have urged Congress to not renew the $600 a week unemployment supplement Congress enacted as part of the CARES Act. They argue, in Puzder’s words, that “this $600 per week bonus is discouraging work” for low-wage earners. No one receiving unemployment benefits will make themselves rich on unemployment. The $600 is not a huge incentive to stay home.  Even in the states with higher base benefits, the minimum unemployment benefits plus the supplement, leave unemployed people earning less than a living wage far below the U.S. median income. But as low as unemployment benefits are, they are higher than the U.S. paltry minimum wage of $7.25 an hour, which is tantamount to a starvation wage, leaving working families significantly food insecure...The long-term systemic reason that working people are willing to accept jobs that cannot provide enough income to cover basic needs is because they are unable to organize and demand higher wages. Unionization is clearly tied to higher and more equal wages. The real disincentive working people face is that if they try to assert their right to collective bargaining,  they often are quickly fired even though such firing is technically illegal...But working people need more than enforced protections for union organizing, we need their voices and expertise at the center of the  Coronavirus recession recovery efforts. Harvard Law School’s Clean Slate for Worker Power project and the Roosevelt Institute have put forward detailed proposals on how to include worker voices during the Covid-19 recovery.  With worker solutions at the table and workplace, the economic recovery will be safer, stronger, and quicker. Working people’s voices need to be heard and followed daily, not just every four years during an election cycle. Democracy, particularly economic democracy, lives in the workplace.

Collaboration has become essential in today’s complex world, and research-based strategies can help you do it better! Dennis & Tom welcome Dr. Heidi Gardner to discuss her practical experience and academic research on collaboration and how lawyers can benefit from her insights into the legal profession by becoming a more effective team...Heidi K. Gardner, PhD, is a Distinguished Fellow and Lecturer on Law at Harvard Law School.

Forcing open a painful chapter of Boston’s history, a federal appeals court on Friday overturned the death sentence of Dzhokhar Tsarnaev, who was convicted five years ago of collaborating with his brother to plant two bombs near the Boston Marathon’s finish line, and ordered a new trial to determine whether he should be put to death. In a 182-page ruling that infuriated some victims, the US Court of Appeals for the First Circuit ruled that George A. O’Toole Jr., the judge in Tsarnaev’s 2015 trial, “did not meet the standard” of fairness while presiding over jury selection. “A core promise of our criminal justice system is that even the very worst among us deserves to be fairly tried and lawfully punished,” wrote Judge O. Rogeriee Thompson, who also called the bombings “one of the worst domestic terrorist attacks since the 9/11 atrocities.” The ruling does not impact Tsarnaev’s convictions in the 2013 bombings, which killed three people and wounded more than 260 others... But the ruling, which drew divided reactions from legal experts, raised the specter of another painful and protracted ordeal for the families of the injured and the dead, some of whom had warned against precisely this outcome...In challenging his death sentence, lawyers for Tsarnaev had argued that holding the trial in the city that endured the terrorist attack deprived him of his right to an impartial jury. Nancy Gertner, a former federal district court judge who now teaches criminal law at Harvard Law School, said, “The notion that a jury from Boston could fairly judge someone who made us all vulnerable seemed to me to be absurd.”

Washington wasn’t built on a swamp — but try telling that to American voters or the politicians they keep electing to metaphorically drain it. This facile fixation long ago turned into a catchphrase (“Drain the Swamp”), but for the most part, it’s all promise and no follow-through. President Trump is only the latest in a long line of bellicose, would-be reformers — of all ideological stripes — who campaign on the idea of a sickened, murky, ethically inhospitable U.S. capital in need of a deep cleanse. The only thing this long-held bias achieves is to keep Washington’s taxpaying residents in an ironic limbo of second-class citizenship, unrepresented in Congress. Oh well — you’ve seen our license plates, you know D.C.’s drill. Daniel DiMauro and Morgan Pehme’s intriguing documentary, “The Swamp” (premiering Tuesday on HBO), makes a good-natured and often compelling attempt to explain some of the endemic, deep-seeded dysfunctions of Congress (a.k.a. “Washington”), while also doing its best to not seem so naive as to present old outrages as fresh news...The “where to begin” aspect of fixing Washington is as much a hurdle for the film as it is for the representatives, while the history of partisan gridlock and big-money influence is more easily traced to the rise of former House Speaker Newt Gingrich in the 1994 midterm elections, when Republicans won a long-sought majority. Seeding dissent between voters and widening the rift between conservatives and liberals turned out to be a powerful moneymaker and a point of no return for both parties — “the perpetual campaign,” says Harvard professor and government reform advocate Lawrence Lessig.

Lisa Marsh’s job shopping and delivering groceries for Instacart during the past three years has been unforgiving. Company tipping policies cut into earnings while boycotts and other labor strife created confusion, she said. Then the global pandemic hit, transforming once mundane trips to Los Angeles grocery stores where she lives into a palpable health risk. In recent weeks, another problem has emerged: bots that snatch the largest, most lucrative orders out of the hands of other shoppers. Here’s how it works. Instacart pays contract workers to shop for groceries and deliver them to customers. Normally, the shoppers open the Instacart shopping app and, as orders flash by, click on the ones they want to fulfill. But in order to gain an edge, some shoppers are paying software developers who have created bots—in the form of third-party apps—that run alongside the legitimate Instacart app and claim the best orders for clients. In this way, the app tilts competition between shoppers but is invisible to customers and doesn’t take business away from Instacart either...But as security experts at Amazon.com Inc. and other sites have discovered, battling rogue apps is a lot like playing whack-a-mole. As soon as a company thwarts one bot program, a new version of it emerges, usually with a new name. “If Instacart cared—if it was losing money—they could devote resources to make the jobs of these automatic snipers much harder,” Bruce Schneier, a cybersecurity expert, author and lecturer at Harvard University, who said there are ways for companies to detect such bots. “This is a problem that any company that makes money from automation is likely being forced to deal with. Some handle it well. Others don’t.”

An article by Noah Feldman: For most of the last 20 years, a rule has applied to the Supreme Court: All Washington, D.C. institutions leak, but the court doesn’t. Now, in a four-part series, CNN Supreme Court reporter Joan Biskupic has revealed details of the court’s inner workings, including deliberations the justices conducted behind closed doors with no one else present. The reports follow similar, less extensive reports Biskupic filed last year. They also follow some conservative opinion pieces fretting that Justice Elena Kagan might have swayed conservative justices to her side in the LGBTQ and contraception cases — essays that have sometimes looked as though they’ve been informed by inside information. Something appears to be changing in the culture of the court. In the light of the court’s tight-lipped history, it’s worth asking: What are the consequences of these leaks? And would it be better for the court if they stopped? Discretion at the court isn’t an inexorable reality. Rather, it’s a pattern that has come and gone over the years. In the 1850s, the New York Tribune published the results of one case before it was handed down, then revealed the court deliberations in the notorious Dred Scott decision, one of the most consequential (and racist, and disastrous) opinions ever issued by the court. In the late 1930s and ‘40s, a period I wrote about in my book “Scorpions,” several justices leaked to the press, poisoning the personal dynamics between them and leading to decades of back-stabbing and hatred. It was part of how the justices of that era came to be described as “nine scorpions in a bottle.”

If climate change is not already impacting an attorney's legal practice it will inevitably do so in the future, affecting a wide range of legal areas from corporate disclosures to litigation over natural disasters and supply-chain disruption, a panel of experts said Thursday. The climate change law experts offered their insight during a virtual panel discussion at the American Bar Association's annual meeting Thursday on how lawyers' practices will be impacted by climate change. The panelists included Columbia Law School professor Michael Gerrard, Hogan Lovells partner Hilary Tompkins, Harvard Law School professor Hana Veselka Vizcarra and general counsel for General Electric's Environment, Health and Safety operations Roger Martella. "Climate change will affect your practice," Vizcarra said. "It's already impacting how we live our lives and how companies do business and when that happens it impacts the law." Vizcarra pointed to changes in corporate disclosure and risk management, with shifts in what corporations either voluntarily disclose to investors or must disclose to the U.S. Securities and Exchange Commission when it comes to issues like their environmental impact or climate change-related risks or liabilities they face. "It's not just a way for values investors to make an impact and encourage companies to do good in the world, but it's now really a part of what investors integrate into their analyses across the board," she said. And, it's not only relevant to securities law, she added, but climate change risks have also begun to impact how the financial sector evaluates assets and the condition of companies seeking financing.

If you ask a Joe Biden supporter to describe the former Vice President’s positive attributes, you’ll hear a lot about compassion, empathy, and experience. But after today, some might be tempted to add soothsaying to the list. Shortly after the Commerce Department announced that the pandemic-driven economic crisis had taken a 32.9 percent bite out of America’s annualised Gross Domestic Product, Donald Trump turned his presumptive Democratic opponent into a prophet Thursday morning by way of a single tweet. After making the baseless claim that states’ use of vote-by-mail will make November’s election (which he is losing according to most reputable polls) will be “the most inaccurate and fraudulent” vote in American history and “a great embarrassment,” Trump suggested delaying it “until people can properly, securely and safely vote”...But according to the man who taught Raskin constitutional law at Harvard Law School, an attempt by Trump to delay the November election is not the nightmare scenario Democrats need to worry about. “He must know — or even though he's personally very ignorant, his lawyers must know — that three US code chapter one, which sets the date for the election, can be changed only by Congress,” said Harvard Emeritus Professor Laurence Tribe, author of the seminal law school text on the constitution, American Constitutional Law. Tribe posited that because only Congress can change the date of the election, Trump is positioning himself to blame the Democratic-controlled House of Representatives and Speaker Nancy Pelosi for making it impossible to pass any sort of measure to carry out his demand, and to pressure Republican-controlled state legislatures to nullify the results should he lose in states like Pennsylvania, Wisconsin, or Michigan.

Firefighters in Hingham, Mass., are continuing to display a version of the American flag — black and white with a blue stripe — on their fire trucks. The firefighters say it's there to show support for the police, but their bosses say it's an inappropriate political statement and it has to come down. All Things Considered host Arun Rath spoke with Noah Feldman, a professor of law at Harvard Law School, on Wednesday about the controversy.

There are two projects underway in western Nevada County to bring stronger internet to select homes and businesses. The first is a $27 million Bright Fiber project, connecting 2,000 households in six zones along Highway 174 — from Idaho Maryland to Chicago Park — to high-speed internet. The second is run by Nevada County Fiber Inc., using the county’s Last Mile Broadband program to bring underground fiber optic to 25 homes and businesses in the Red Dog and Banner Quaker Hill Road areas. But more projects are potentially in the works...Harvard law professor Susan Crawford believes the reason rural areas do not yet have strong, reliable internet is due to a lack of regulation over privately controlled telecommunication companies. “The completely deregulated private companies on which we depend for wired communications have systemically divided markets, avoided competition and established monopolies in their geographic footprints,” she writes in her 2018 book “Fiber.” “The results are terrible: very expensive yet second-rate data services, mostly from local cable monopolists, in richer neighborhoods; the vast majority of Americans unable to buy a fiber optic subscription at any price; and many Americans, particularly in rural and poorer areas, completely left behind.” The spaces in the U.S., and around the world, that have provided affordable and universal access to strong internet are where the service is treated like a utility, and run by a democratically operated and owned entity via either a cooperative or government agency, she argues. Kristin York, vice president of business innovation for the Sierra Business Council, said her organization shares many of Crawford’s concerns.

An article by Tanya Goldman and Terri Gerstein: The COVID-19 pandemic has been devastating for many low-wage workers and their families. Workers are risking their health and lives, including in meatpacking plants, grocery stores, restaurants, mass transit, and health care. Black workers, in particular, are experiencing retaliation for raising COVID-19 workplace safety concerns. Millions of workers are struggling to make ends meet after being laid off and need unemployment insurance. Other workers have been deemed essential, but their employers have not provided them living wages or critical benefits like paid sick days. While federal and state laws are in place to protect and support workers during the pandemic in various ways, many workers don’t know about these laws or programs. Similarly, employers may not realize their legal obligations. Using media and strategic communication was a critical tool for labor enforcement agencies before the pandemic—and it is of even greater urgency now. To help agencies with this aspect of their work, the Center for Law and Social Policy (CLASP) and the Harvard Law School Labor and Worklife Program released a toolkit earlier this month, Protecting Workers through Publicity: Promoting Workplace Law Compliance through Strategic Communication. The toolkit shares research showing that media coverage and public disclosure improves policy outcomes, in labor and other contexts. The toolkit can be used by labor enforcement agencies, as well as policymakers who care about worker issues, to help them use media effectively. It will also benefit worker advocates, who can share it with enforcers and policymakers as part of an effort to press for greater use of this underutilized vehicle for driving compliance.

A video frame captured in Hong Kong in August 2019 shows a group of pro-democracy protesters, smoke pluming toward them, racing to place an orange traffic cone over a tear-gas canister. A video taken nine months later and 7,000 miles away, at a Black Lives Matter protest in Minneapolis, shows another small group using the same maneuver. Two moments, two continents, two cone placers, their postures nearly identical. Images of protest spread on social media reveal many other matching moments from opposite sides of the world, and they often feature everyday objects wielded ingeniously...An Xiao Mina, a researcher at the Berkman Klein Center for Internet and Society at Harvard University, has studied these echoes. In the summer of 2014, when the Umbrella Movement in Hong Kong and the Black Lives Matter protests in the United States that followed the police killing of Michael Brown were taking place, she noted that the protesters spoke a common language, even sharing the same hand gesture characterized by the chant “Hands up, don’t shoot.” Occasionally, there was even direct acknowledgment between the disparate groups, “as when Ferguson protesters donned umbrellas against the rain and cheekily thanked protesters in Hong Kong for the idea,” Ms. Mina wrote in her 2018 book, “Memes to Movements.” But often, she noted, the images’ similarity was unwitting. In their spread, their simultaneity and their indirect influence on each other, the protest videos had all the characteristics of memes, those units of culture and behavior that spread rapidly online. The same cultural transfer that gives us uncanny cake-slicing memes and viral challenges also advances the language of protest. “We live in this world of attention dynamics so it makes sense that tactics start to converge,” Ms. Mina said. She called the images’ tendency to build on each other “memetic piggybacking,” and noted that everyday items that are subverted into objects of protest are “inherently charismatic.”

An article by Cass Sunstein: What once seemed a paranoid fantasy is now looking plausible: Well behind in the polls, President Donald Trump is suggesting a possible delay in the 2020 election. Here’s what he tweeted on Thursday: "With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???" There are major ironies here. Trump has repeatedly downplayed the coronavirus pandemic and called for rapid opening of cities, businesses and schools. Now he is fearful that people cannot “safely vote,” and wants to delay the election? A key reason that Trump is doing so poorly in the polls is his response to the pandemic, which is widely regarded as an abysmal failure. Now he wants to use the pandemic as a justification for stopping the ordinary operation of the democratic process? To be sure, Trump’s stated concern is with mail-in voting, which, in his view, is a recipe for fraud. But existing evidence does not support that concern. It is difficult to avoid the conclusion that Trump’s opposition to mail-in voting, and his interest in delaying the election, are a product of one concern: It looks as if he is going to lose. Fortunately, the president is not a king, and he can’t delay an election simply because he doesn’t want one. The Constitution gives the relevant power to Congress. Article 2 states: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Since 1948, Congress has exercised its constitutional authority with a law that says plainly: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

Changes to the way a 40-year-old federal law is implemented could significantly benefit vertically-integrated utilities in non-competitive markets, while harming small-scale solar developers, stakeholders told Utility Dive...Critics say states' ability to set prices paid to small solar at varying levels with no guaranteed long-term contract could allow some to set policies that harm independent power producers. "This ultimately harms renewable energy generators because they lose [these] long-term fixed price contracts and other benefits they had under the old rules," Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, told Utility Dive... "The utilities that benefit most from weakening PURPA are these vertically integrated utilities that are outside of the [regional transmission organization (RTO)] markets and so, therefore, already have the most control over power supply in their regions," said Peskoe. "One reason why Congress enacted PURPA 40 plus years ago ... was to neutralize some of the power that these vertically integrated utilities have, to require them to buy energy from these qualifying facilities because otherwise they would not have bought energy from their competitors." But while Peskoe sees potential problems with FERC's updated PURPA regulations, some state regulators say the new rules will bring clarity and certainty to states in how they implement PURPA moving forward...The larger issue surrounding the risk to renewable energy is financeability, which remains a a key concern left unaddressed by FERC, according to Peskoe. Although state regulators do have "tools in their toolbox" to promote competition, federal rules no longer require utilities to offer long-term contracts with fixed energy prices, Peskoe said.

Law-enforcement authorities are obligated to protect and facilitate peaceful demonstrations, an influential United Nations human rights panel said on Wednesday, challenging tactics the police have used against anti-racism protests in American cities and around the world. The international treaty governing civil and political rights requires states to allow peaceful demonstrations, not to block or disrupt them without a compelling reason, the United Nations Human Rights Committee said. Authorities should also seek to de-escalate situations that might lead to violence and to use only the minimum force necessary to disperse crowds...The committee of 18 international law experts monitors compliance with the International Convention on Civil and Political Rights, a cornerstone of human rights law signed by 173 countries, including the United States. The panel’s comment, a product of more than two years of deliberations, sets out international guidelines that speak to issues central to America’s deepening discord over the Trump administration’s response to the Black Lives Matter protests in Portland and elsewhere. The protests in Portland and elsewhere swelled after the administration dispatched federal law enforcement officials to confront demonstrators over the objections of local officials...The committee also asserted the “particular importance” of journalists and human rights defenders in monitoring demonstrations, emphasizing they should not be harassed or their equipment confiscated or damaged. Even if violence erupted to a point that justified dispersing a crowd, it did not justify dispersing journalists. “All of these are lessons that the government of the United States should be taking very much to heart,” said Gerald Neuman, a professor of international law at Harvard University who served on the committee.