Media Mentions

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.

Without federal intervention, housing experts and advocates warn of an unprecedented wave of evictions in the coming months, and one far more devastating than the round that came after the 2008 foreclosure crisis. Last month, according to the Census Bureau, nearly 25 million people reported they had little to no confidence they would be able to pay rent in the next month, and almost 30 million people said they didn’t have enough to eat. Meanwhile, talks to pass a second relief package have stalled in Congress as a lifeline for 30 million Americans — $600 a week in extra federal unemployment benefits — expired...In June, an analysis by the COVID-19 Eviction Defense Project, a coalition of researchers and legal experts, estimated 19 million to 23 million renters were at risk of eviction by Sept. 30. “That number may actually be understated,” says Sam Gilman '22, co-founder of the group. “We’re starting to see signs that the economic recovery that we modeled into our initial numbers is not going to happen.” Broader economic trends are not helping. On July 30, the U.S. economy notched its worst economic quarter in recorded history, and for the 19th consecutive week, at least 1 million people applied for unemployment benefits. Meanwhile, assistance through state and local programs has dried up. In Houston, a $15 million rental assistance program suspended services after 90 minutes because of overwhelming need. Thirty percent of the 200 state and local rental assistance programs tracked by the National Low Income Housing Coalition have already exhausted their resources, says Yentel.

President Donald Trump’s attempt to force Chinese company ByteDance to divest the U.S. version of its popular TikTok social-media app has some precedent. But the rest of the bizarre corporate drama that has recently played out in two Washingtons is not based in reality, especially the president’s demand for a cut of any deal in which Microsoft Corp. acquires TikTok. Trump said Monday he was ready to approve a deal for Microsoft MSFT, -0.01% to purchase TikTok — a change in his stance since Friday’s opposition — but only if the U.S. government receives a lot of money in exchange. On Sunday, Trump had a phone conversation with Microsoft Chief Executive Satya Nadella, in which he told the CEO that a “very substantial portion of the price [for TikTok] is going to have to come into the Treasury of the United States, because we’re making it possible for this deal to happen,” Trump said Monday...The fact that Trump seems to think that the U.S. government is acting as an investment banker in this possible match-up is a new level of delusion. Finder’s fees may be a core component of how real estate works, but not the federal government. “There is zero legal authority for the president to extort money from a company seeking to clear a deal under the laws creating CFIUS,” John Coates, a professor of law at Harvard University, said in an email. “Congress has never authorized an executive branch official, or any agency, to condition regulatory approval or clearance on the payment of the ‘cut’ of a deal, a ‘finder’s fee,’ or a bribe. The fact that the money might in theory go into the U.S. Treasury does not make it legal. Congress, and only Congress, can authorize taxes, through legislation.”

According to a 2020 report by the Prison Policy Initiative, 74% of people in American jails have not been convicted of a crime. Sometimes this is because they’re considered a flight risk or danger to society, but the majority of individuals in jail are there because they can’t afford bail. And while inside, they’re often given a choice: plead guilty and get released, or stay in jail until a trial is scheduled, and hope they’re proven innocent. Most people take the plea bargain. The idea that individuals are innocent until proven guilty is supposed to be at the heart of our criminal justice system. But in reality, it’s not, says Alexandra Natapoff, a professor of law at Harvard University. “We are letting the pressures of the criminal system decide who will sustain a conviction,” she says. “So we are already committed, in some terrible sense, to punishing the innocent.”

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found. Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims. There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus. But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution...Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found. The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

The mayor of Vinto, a city nestled in the heart of Bolivia’s agricultural country, jokes her job is a lot like running a public complaints office: People call her when the garbage doesn’t get picked up or when their power or water utilities are interrupted.  And in the six months since the coronavirus reached Vinto, Patricia Arce has also helped the local hospital procure supplies and delivered grocery baskets to families going without food because of the economic impact of isolation measures, she said. But she’s been doing her job under a cloak of fear since early November when an anti-government mob accused her of having organized a pro-government demonstration in which one person was killed. The mob pushed her through the streets of Vinto, forcibly cut her hair, doused her in red paint and demanded her resignation...The Áñez administration has harassed her, accused her of kidnapping herself, and charged her with sedition, according to a report out this week by Harvard University Law School’s International Human Rights Clinic and the nonprofit University Network for Human Rights.  Arce's case is among the dozens of human rights violations that have been perpetrated under the government of interim President Jeanine Áñez, the report says...Thomas Becker, an instructor at Harvard's international human rights clinic and a co-author of the report, was working in the central city of Sacaba on Nov. 15 when government security forces killed nine people, he said. That day, he began measuring the trajectory of the bullets in the confrontation, and concluded they had all originated on a bridge from where the military was stationed, he said. “What happened is horrific,” Becker said.

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.