Media Mentions

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.

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.