Media Mentions

An article by Noah Feldman: A Trump-appointed federal district court judge in Western Pennsylvania has issued a ruling declaring Pennsylvania’s coronavirus lockdown restrictions unconstitutional. It gives an unfortunate boost to Donald Trump’s efforts to depict Covid-19 safety measures as overblown, but it  could well be reversed on appeal — after all, most of the restrictions the judge struck down are currently suspended. Nevertheless, it is worth emphasizing that the court’s judgment isn’t completely unexpected at this stage in the pandemic. As the immediacy of the emergency waxes and wanes in different places, there is reason to expect that courts in zones with relatively low numbers of Covid-19 cases will start holding that more aggressive restrictions are situationally inappropriate. It’s therefore sensible for states to calibrate their emergency responses carefully, and provide concrete justifications for emergency policies as soon as it is practicable to do so. The Pennsylvania restrictions struck down by the court are similar to those adopted in many states around the country earlier this year. One, dating back to July, restricted indoor gatherings in the state to 25 people and outdoor gatherings to 250. A second directed citizens to stay at home except for a range of basic activities. (There is some debate about whether this was an order or merely an advisory.) The third divided businesses into the categories of “life-sustaining” and “non-life-sustaining,” closing the latter. A cautious judge would have avoided ruling on the constitutionality of the stay-at-home and business orders, because they are now suspended everywhere in Pennsylvania. Instead, the judge, William Stickman IV, who has been on the job for just over a year, chose to issue a decision based on the theory that the governor and public health officials could reinstate the suspended orders at any moment. Thus, he reasoned, the orders are therefore still in force.

Gal Tziperman Lotan’s article “Racial disparity clear in criminal system” (Page A1, Sept. 10) makes clear the racial disparities that were found in the report of the Criminal Justice Policy Program at Harvard Law School but also indicates how many district attorneys and courts do not record this crucial data. The major criminal justice reform legislation passed in 2018 included provisions requiring criminal justice agencies to collect race and ethnicity data using common standards. The law also instructs agencies to link their databases, making it possible to track individuals as they move through the justice system, which would allow researchers more readily to observe where treatment differs by race or ethnicity. And the Legislature recently appropriated additional funds to help this happen. But in the two years since the law passed, criminal justice agencies have done little to comply. That is not what we need at this time of reckoning with the racial impact of our policies. Now it’s time for the Baker administration, sheriffs, district attorneys, and the Trial Court to get to work. Witness how quickly the state produced detailed data across thousands of decentralized locations to track COVID-19 testing, hospitalizations, deaths, and the racial impact. It can be done. If we care equally about rooting bias out of the justice system, we must pursue data and transparency with the same level of urgency. It’s a fitting way to continue the legacy of justice for which we are praising the late Supreme Judicial Court Chief Justice Ralph Gants.

Suffolk County District Attorney Rachael Rollins joins us to reflect on the passing of Supreme Judicial Court Chief Justice Ralph Gants, and what she'd like to see from Baker's nominee for a justice to replace him. She also discusses a recent study by the Criminal Justice Policy Program at Harvard Law School that has exposed stark racial disparities in the Massachusetts criminal justice system, and outlines her plan to release a list of BPD officers with records of misconduct.

Jonathan Best had been out of prison for two years when he ended a rocky relationship with his girlfriend. Like many men and women on parole—a form of early release, in which the remainder of one’s sentence is served in the community—he suffered from depression and anxiety. At the time, Best often had to choose between paying his monthly $80 parole fee and putting food on the table. He worried that if he got pulled over for speeding, a warning would go straight to his parole officer (PO). Like many who face the stress of reentry from prisons in the US, Best sometimes coped by using drugs or alcohol. He rarely felt free. Best never found out exactly what happened on Aug 16, 2012, the day he was sent back to prison. Nor does he know what part his ex-girlfriend played in his return, though Best suspects that she called his PO and told the officer that he was doing drugs. Unofficial protocol was for Best’s PO to appear at his doorstep; supervision often means giving up one’s Fourth Amendment right to privacy in one’s home. But on that occasion, his PO surprised him and demanded Best come to the parole office. When he arrived, Best was tested for drug use on the spot...Attorney Katy Naples-Mitchell said in a phone interview that “no one should have their liberty restrained based on the fact that they were trying to meet their parole conditions and life intervened.” The attorney and legal fellow at the Charles Hamilton Houston Institute of Race and Justice at Harvard Law School added, “In this country, we have the presumption of liberty.” As the nonprofit Prison Policy Initiative reported about revocations in 2018, there is often an impulse to extract those on parole from the community “at the first sign that they are struggling.”

A podcast by Noah Feldman: Nathaniel Persily, a Stanford Law professor who specializes in election law, discusses his biggest concerns about the upcoming election.

With the death of Massachusetts Supreme Judicial Court Chief Justice Ralph Gants, Gov. Charlie Baker will do what none of his most recent predecessors have done. He'll be the first governor in recent memory to appoint all seven state supreme court justices. Baker has already appointed five justices, all of whom were elevated to the high court in the last four years. And he was scheduled to replace Justice Barbara Lenk, who will reach the mandatory retirement age and leave the bench in December. With a nomination for a new justice after the loss of Gants, all of the court's members will have been named by Baker...Gants' influence on the court was evident, according to many court observers who praised his commitment to fairness and equity — especially fairness to those without resources and racial equity. Defense Attorney Jamie Sultan, who frequently argues before the SJC, said most of the current justices have strong backgrounds as prosecutors...The SJC is known for historic rulings on issues such as gay marriage and criminal justice reforms. Retired federal judge and WBUR legal analyst Nancy Gertner said she hopes the governor isn't too cautious in making his nominations. "It's a remarkable court and that's what Baker should be aiming for," Gertner said. "Baker should be aiming for excellence and not just avoiding controversial picks." Gertner said she hopes Baker nominates someone with a legal mind like Gants, who was known for a sometimes unconventional approach to improving the justice system.

A new settlement related to the now-defunct for-profit school ITT Technical Institute would erase $330 million in privately-held student loan debt owed by around 35,000 former ITT students. The nationwide settlement, announced on Tuesday by the Consumer Financial Protection Bureau (CFPB) and state attorneys general from 47 states and the District of Columbia, hopes to erase debt owed by former ITT students to a Deutsche Bank-funded program called “PEAKS Trust.” ITT Technical Institute filed for bankruptcy and shut down all campuses in 2016, affecting 149 locations and roughly 40,000 students, amid lawsuits and investigations over alleged predatory lending practices. “This settlement brings long-awaited justice to former ITT students who were pushed into predatory student loans that ITT and its collaborators predicted they would never be able to repay,” Eileen Connor, legal director at the Project on Predatory Student Lending at Harvard Law School’s Legal Services Center, which represents some ITT former students, told Yahoo Finance in a statement. “All debt from ITT should be cancelled, including federal student loans,” Connor added. The settlement stated that PEAKS will not only discharge the loans but also stop collecting on them and will ask credit reporting agencies to “delete information relating to PEAKS loans.” Borrowers will also get a notice that their debt has been discharged.

Tamika Palmer's voice broke as she spoke about the city of Louisville, Kentucky's $12 million settlement and planned reforms after the killing of her daughter, Breonna Taylor, during a botched police raid...Standing right behind her was Benjamin Crump, an attorney nicknamed "Black America's attorney general" by civil rights activist Reverend Al Sharpton. Crump, 50, has represented the distraught families of a lengthy list of slain African-Americans in recent years, as they have faced some of the darkest moments of their lives in the public glare. They include the families of Trayvon Martin, a Black teen shot dead in Florida; Ahmaud Arbery, a Black jogger killed in Georgia; and George Floyd, a Black man whose death in police custody in Minnesota sparked global protests this year. Crump says one of his main roles is to keep the spotlight of media attention on the victims and their families. "It's no guarantee that you will get to the court of law, but you first have to win in the court of public opinion if you're a minority in America who was killed by the police," Crump said in an interview with Reuters earlier this month. By focusing public attention on his clients, Crump is following in the footsteps of decades of civil rights lawyers, but with new tools like social media and smartphone videos at his disposal, civil rights experts say. "He's effective in getting attention paid to his cases and putting pressure on local authorities to act in the interest of his clients," said Kenneth Mack, a professor at Harvard Law School. "And to some extent, that's more than half the job at this moment." Like many plaintiffs' lawyers in the United States, Crump works on a contingency basis and receives a cut of the final settlement. Crump's payments have not been made public but plaintiffs' attorneys frequently receive around a third of the settlement amount.

A new study out of Harvard underscores the extent of racial disparities within the Massachusetts criminal justice system, showing that Black defendants account for 17 percent of the state’s criminal caseload, and Latino defendants account for 18 percent — despite making up just 6 and 9 percent of the state population, respectively. The study also shows that people in those groups receive longer sentences on average than their white counterparts — a finding that remains when controlling for other factors, like an individual’s past criminal history. To discuss, Jim Braude was joined by Suffolk County District Attorney Rachael Rollins and retired federal judge Nancy Gertner, now a senior lecturer at Harvard Law School.

If a president in the performance of his duties lies or intentionally holds back vital information, Americans can die. That was the main takeaway from the Pentagon Papers, which showed multiple presidents understood we were not winning and could not win the Vietnam War but continued sending troops. History almost certainly will find an even more clear-cut example of mendacity in President Trump’s decision to lie about the lethality of the novel coronavirus. We have his own words attesting to his knowledge of the virus’s deadly effects, his confession that he downplayed the threat and reliable estimates of the tens of thousands of Americans who could have been saved had he acted swiftly and responsibly. Trump was certainly carrying out his duties as president (however poorly), so he’s at no risk of criminal or civil liability. This was a moral failing. But what about activities that were specifically not official and were identified as campaign events outside his role as president? In June, Trump held a rally in Tulsa, at a time he knew the virus was airborne and deadly. He also recently held massive indoor rallies in Nevada and Arizona in which the audiences were tightly packed together and masks were not required...Constitutional expert Laurence Tribe explains, “I think Donald Trump’s deliberate exposure of people attending his rallies without masks and without social distancing, given all he has admitted on tape that he knows about how covid is transmitted and how deadly a virus it is, would qualify for state criminal prosecution.” Tribe dismisses arguments that Trump’s rallies are protected by the First Amendment by describing the events as more akin to “tossing firebombs into a crowded theater than merely shouting ‘Fire!’ when there is none and causing a deadly panic.” He adds, “Trump is literally creating a situation in which his audience of thousands ought to be running for the exits to minimize the risk that they will at least become spreaders of a deadly virus but will instead remain in place while Trump holds their attention long enough to make many of them sick. That’s civilly and criminally actionable as reckless endangerment, in my view.”

An article by Cass Sunstein and Adrian Vermeule: More than at any time since the 1930s, the administrative state is under constitutional assault. Some judges, lawyers and legal academics are calling into question the very structure of modern government. Four members of the U.S. Supreme Court, and possibly five, have indicated that they would like to revive the “nondelegation doctrine,” which would forbid Congress from granting excessively broad or uncabined discretion to administrative agencies such as the Environmental Protection Agency, the Department of Labor and the Department of Transportation. Under their approach, important parts of the Clean Air Act and the Occupational Safety and Health Act might be invalidated. So too, in eliminating the independence of the Consumer Financial Protection Bureau in June, a majority of the Supreme Court cast a dark constitutional cloud over the long-established idea that Congress has the power to allow agencies to operate independently of the president. The court’s approach raises serious doubts about the legal status of the Federal Reserve Board, the Federal Trade Commission, the Nuclear Regulatory Commission and other such entities. These developments are just two of a large number of emerging efforts within the federal courts to limit the power of administrative agencies or perhaps even to abolish them, at least in their current form. We are witnessing the flowering of a longstanding attempt to see the administrative state as fundamentally illegitimate. (The legal assault on the administrative state has political resonance, too; think of the former Trump adviser Steve Bannon’s call for the “deconstruction of the administrative state.”)

Chief Justice Ralph Gants of Massachusetts' Supreme Judicial Court has died. He suffered a heart attack earlier this month. He was 65. The court announced his death in a statement this afternoon. We get reaction from WBUR legal analyst Nancy Gertner, who is also a retired federal judge and senior lecturer at Harvard Law School.

With just over two months before the 2020 election, intelligence officers in the US have warned that Russia and other rivals are again attempting to undermine the nation’s democracy. But these concerns over election security extend far beyond safeguarding insecure voting machines and questions about voting by mail in the United States. Based on an analysis of election reforms in Australia and European Union nations, the researchers outline steps to address election infrastructure security—such as requiring paper ballots and risk-limiting audits—as well as deeper structural interventions to limit the spread of misinformation and combat digital repression...Aside from appropriating sufficient funds to replace outdated voting machines and tabulation systems, the researchers say that Congress should encourage states to refuse to fund voting machines with paperless ballots. The researchers also suggest requiring risk-limiting audits, which use statistical samples of paper ballots to verify official election results... “The international community has the tools to act and hold accountable those actors that would threaten democratic institutions,” says Abbey Stemler, assistant professor of business law and ethics, who also is a faculty associate at Harvard University’s Berkman Klein Center for Internet and Society. “Failing the political will to act, pressure from consumer groups and civil society will continue to mount on tech firms, in particular Facebook, which may be sufficient for them to voluntarily expand their efforts in the EU globally, the same way that more firms are beginning to comply with its General Data Protection Regulation globally, as opposed to designing new information systems for each jurisdiction.”

Oracle, the California-based computer technology corporation, announced Monday that it will serve as a business partner, or "trusted technology provider," for the Chinese social media app TikTok. The ownership of TikTok has become politicized lately over unproven beliefs that the company shuttles private user information to the Chinese Communist Party, an assertion that President Trump appears to buy into and which administrative officials say motivated him to sign an executive order that would force TikTok to divest its assets in the United States and relinquish data it had gathered in the US. The news about Oracle partnering with TikTok broke shortly after Microsoft announced that it had been unable to close a deal to purchase the app's US operations...Neither Oracle nor TikTok elaborated on the nature of their arrangement, including whether or not it involves Oracle outright purchasing the company or striking some kind of partnership with them. Oracle itself has strong financial and legislative ties with two congressional Republicans close to the Trump administration, Sen. Steve Daines and Rep. Greg Gianforte, both from Montana. TikTok has faced fire from the Trump administration since July, when Secretary of State Mike Pompeo hinted that Trump was thinking of taking action against TikTok and declared that Americans should only use the short-form video app "if you want your private information in the hands of the Chinese Communist Party." Pompeo made these remarks shortly after TikTok users embarrassed the president by leading a successful campaign to reserve hundreds of thousands of tickets for a Trump rally in Tulsa, which caused the president's campaign to significantly overestimate their anticipated attendance and left most of the stadium empty... "The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment," Harvard Law professor Laurence Tribe told Salon by email at the time. "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

Reverends Irene Monroe and Emmett G. Price III called into Boston Public Radio on Monday and weighed in on the findings of a Harvard Law School Criminal Justice Policy Program study published last week, which shows stark racial disparities throughout the Massachusetts prison system. Among other conclusions, the study — which took four years to complete — found that Black residents are imprisoned at a rate nearly eight times that of whites, while Latinx people are are imprisoned nearly five times as frequently as their white peers. “In this season of America, who do we want to be?” Price said. "Are we going to be the land of equal opportunity, the land of freedom for all, or are we going to continue to be a disparate and differential nation where certain people have privileges that others don’t?” Monroe agreed with the sentiment of her co-host, and criticized Gov. Charlie Baker for not yet responding publicly to the report's findings. "I think that Baker’s silence behind it does a couple of things. It maintains not only the status quo, but I think in many ways it’s pandering to a police force,” she said, "and a justice system that sorely needs to be reformed.” "This is a bigger kind of sea change or paradigm shift that we’re asking for, that for centuries this country has been resistant to do,” she added.

Last week, Harvard Law School Criminal Justice Policy Program issued a long-awaited report on racial disparities in the state’s criminal legal system. After a four-year quest to unearth and analyze this data, the study definitively proves what so many people entangled in the system have been saying for a long time: The definition of justice in Massachusetts changes depending on the color of your skin. After controlling for all other factors, such as neighborhood and prior criminal history, the researchers found that Black and Latinx people accused of crimes are charged with greater severity, face more and longer mandatory minimum sentences, and are sentenced to significantly more jail and prison time than their white counterparts. The heart-wrenching outcomes of these racial inequities are exacerbated and perpetuated by the lack of a coordinated effort to collect and share data that oversight agencies need to identify racial, ethnic, gender, and other biases. You cannot fix what you do not measure. The study’s authors go to great lengths to reveal that the Massachusetts criminal legal system has shrouded itself in darkness. Their findings show that the Commonwealth makes it nearly impossible to pinpoint when and where the law — and those who enforce it — are failing to provide equal treatment. In the study, police departments would not or could not provide the researchers with aggregated arrest reports. The district attorneys either would not or could not share vital information, such as when they reduced charges or dropped cases. The Trial Court does not electronically track bail amounts or fines and other penalties, including probation, the most common sanction. They also don’t collect information on judges, to analyze sentencing disparities from courtroom to courtroom, courthouse to courthouse. Across agencies, case records lack a common identifier to track individuals through the system, and there are no unified standards for recording race and ethnicity consistently. The state still does not capture gender, and only records a person’s sex assigned at birth.

An article by Vivek Wadhwa: Usually good for a conspiracy theory or two, U.S. President Donald Trump has suggested that the virus causing COVID-19 was either intentionally engineered or resulted from a lab accident at the Wuhan Institute of Virology in China. Its release could conceivably have involved an accident, but the pathogen isn’t the mishmash of known viruses that one would expect from something designed in a lab, as a research report in Nature Medicine conclusively lays out. “If someone were seeking to engineer a new coronavirus as a pathogen, they would have constructed it from the backbone of a virus known to cause illness,” the researchers said. But if genetic engineering wasn’t behind this pandemic, it could very well unleash the next one. With COVID-19 bringing Western economies to their knees, all the world’s dictators now know that pathogens can be as destructive as nuclear missiles. What’s even more worrying is that it no longer takes a sprawling government lab to engineer a virus. Thanks to a technological revolution in genetic engineering, all the tools needed to create a virus have become so cheap, simple, and readily available that any rogue scientist or college-age biohacker can use them, creating an even greater threat. Experiments that could once only have been carried out behind the protected walls of government and corporate labs can now practically be done on the kitchen table with equipment found on Amazon. Genetic engineering—with all its potential for good and bad—has become democratized.

In a famous article written 50 years ago this week, Milton Friedman argued ‘the social responsibility of business is to increase its profits’. The statement remains a lightning rod for the debate on ‘corporate purpose’ – whether public corporations should be managed just for the benefit of shareholders or for a broader set of stakeholders, including employees, suppliers and the community.  We continue to go back and forth. In 2019, to much fanfare, 181 CEOs of the US Business Roundtable publicly committed to manage corporations for stakeholders – reversing their 1997 statement that upheld shareholder primacy! Not so fast, countered Harvard Law Professors Lucian Bebchuk and Roberto Tallarita, who argued that stakeholderism can backfire in insulating corporate leaders from external accountability and compromising economic performance… to the detriment of broader stakeholders! Friedman’s essay was necessarily of its time. In 1970, Friedman was one of the leading economists of his day. However, and not really his fault, he presided over a discipline profoundly shaped by a reductionism that was then the deep guiding force of social sciences, but which has since revealed limitations. Economics was not alone in being so waylaid, but was arguably most affected. The extraordinary explanatory power of reductionism in the hard sciences over the preceding centuries had drawn all fields with scientific pretensions in the direction of physics and its methods. Social scientists were eager for their own simple, universalizable laws and for the prestige which might follow such discoveries.  But, fifty years on, general laws in the social sciences remain elusive, and another development from the 1970s clarifies why. Even as Friedman was penning his op-ed, a new science – ‘complexity science’ – was emerging. It – and its associated ‘systems thinking’ – announced itself with the formation of the Santa Fe Institute in 1984.

BigLaw had never been on Jason Williamson's radar. He'd gone to law school intending to become a public defender and help people from his community. Then, he learned his wife was pregnant with twins. "That really just changed everything," he said. "It turns out it's hard to make a living on a public interest lawyer's salary." He ended up at Paul Weiss Rifkind Wharton & Garrison LLP, where he would make good money for a few years while focusing on the firm's robust pro bono practice...Williamson was able to cross back over, and now, as a staff attorney at the American Civil Liberties Union, he sees the considerations that go into hiring young lawyers. Working in BigLaw, he said, can raise questions about commitment, like, "How sure can we be that you're going to really hang in there and do this work after we invest resources in training you?" On the other hand, he knows from personal experience that not everyone can afford to devote their entire lives to public interest law. And by writing off people who may have needed the money BigLaw offers, social justice organizations may exclude attorneys from the very low-income communities they seek to represent...There are many ways to demonstrate that commitment, says Catherine Pattanayak, Harvard Law School's assistant dean for public service. Students can summer with public interest organizations, take social justice-related clinics, volunteer with student practice organizations, or do pro bono work as BigLaw summer associates. Once at a firm, Pattanayak recommends young attorneys take pro bono assignments, join membership organizations and take volunteer opportunities. Pattanayak herself moved from Ropes + Gray LLP to the U.S. Department of Health and Human Services, and said while she didn't face any stigma for her corporate career, she had to build a case for herself. "I knew when I began applying for public interest jobs that I would need to explain why I was interested in making a transition, and back up that explanation with evidence through my pro bono work and law school experiences," she said. "Government employers tend to be particularly open to prior law firm experience."

Across the University, the graduate and professional schools spent the summer taking a hard look at what they were doing and why, to ensure that students will not miss a beat in their education or experience.

The numbers from a study of racial disparities in the Massachusetts criminal justice system are disturbing, but not a surprise. Behind the numbers, however, are real people, Black and Latino people, many of them serving sentences far longer than their white counterparts. So the question facing leaders in this state is what happens next? What can police, district attorneys, the courts, and, yes, the governor himself do to set things right at a time when tens of thousands have taken to the streets to demand racial justice and equitable treatment under the law? The Harvard Law School Criminal Justice Policy Program study, undertaken at the request of Supreme Judicial Court Chief Justice Ralph D. Gants, has been four years in the making, and researchers readily acknowledge that even the enormous amount of data they had access to was less than they would have wanted. Recalcitrant police departments, an uncooperative Massachusetts District Attorneys Association, and court data systems that are perpetually a work in progress contributed to their frustration. But still, based on facts they were able to gather, the team found that, between 2014 and 2016, Black people were imprisoned at a rate of 7.9 times that of white people and Latinos at 4.9 times that of white people. “Black and Latinx defendants tend to face more serious initial charges that are more likely to carry a mandatory or statutory minimum sentence,” the report noted. Most often those involved drug and weapons charges, “offenses that carry longstanding racialized stigmas,” according to the report. Even after accounting for criminal histories, court jurisdictions and demographics, the researchers found “Black and Latinx people are still sentenced to 31 and 25 days longer than their similarly situated White counterparts.” No doubt court officials didn’t order up the report only to have it gather dust. But systemic change — change that demands the attention of police who make the initial arrests and prosecutors who largely determine what charges those defendants will face — demands a coordinated approach.