Media Mentions

The House is set to vote Thursday on a sweeping plan to overhaul U.S. workplace law in a way that could grow union membership and rejuvenate an ailing labor movement With Democrats holding the chamber’s majority, the legislation ― called the Protecting the Right to Organize Act, or PRO Act ― will likely pass but then face certain death in the GOP-controlled Senate. ...The legislation shares a lot in common with a new labor reform plan being passed around progressive circles called Clean Slate for Worker Power, spearheaded by Harvard University law professors Sharon Block and Benjamin Sachs. While their plan goes much further than the PRO Act ― for instance, Clean Slate calls for worker representation on corporate boards  ― Block and Sachs told HuffPost they see the Democratic legislation as an important first step in fixing a collective bargaining system that dates to the Great Depression and that unions say is broken. “Folks are thinking in a bigger, bolder, more progressive way,” said Block, a former member of the National Labor Relations Board, the federal agency that referees labor disputes. “It enables workers to see that their lives could really be different… rather than the smaller-bore fixes like we’ve tried in the past that didn’t work.”

Following the impeachment and acquittal of President Donald Trump after a bitter partisan battle, Americans now face a new reality that involves serious questions about the ability of the federal government to respect longheld balances of power. ... Now that the president has been acquitted, lawmakers may face a future in which their own decision amounts "to a license for any president to defy congressional oversight on a wholesale basis without any particularities, let alone legally plausible" explanation, long-time constitutional scholar Laurence Tribe told Cheddar. "I don't think this is the end of American democracy or separation of powers. I don't think the rule of law is dead or democracy is permanently doomed," said Tribe, who teaches alongside defense lawyer Alan Dershowitz at Harvard Law School. "On the one hand, I have a deep faith that in the long run we will get past this, just as we got past the Civil War and WWII. On the other hand, I can't give you a path between here and the long run that could overcome the pessimism that says we have huge obstacles in the way."

House Speaker Nancy Pelosi (D-Calif.) produced a great .gif of performative outrage for the #Resistance by ripping up a copy of President Donald Trump’s State of the Union address on Tuesday evening after he rejected her “handshake of friendship.” ...Anti-Trump Harvard Law Professor Laurence Tribe put a bow on the pro-Trump misinformation campaign against Pelosi’s alleged kayfabe: "What a dumb idea! Not even Bill Barr would fall for that ludicrous misapplication of the federal law criminalizing mutilation of government records. The copy was the Speaker’s own, it wasn’t a government record to begin with, and her action was purely symbolic expression well within the protection of both the speech and debate clause and the first amendment."

Despite its rejection by more than 500 of the nation’s leading legal scholars and the star constitutional scholar who testified on behalf of House Republicans, several Republican senators said they are leaning heavily on arguments made by celebrity defense lawyer Alan Dershowitz for their votes to acquit President Trump on Wednesday. ...Even self-identified conservative scholars dispute the legal case Dershowitz made on the Senate floor. Larry Tribe, a Harvard constitutional law expert, called it a “crackpot theory.”

An article by Molly Coleman '20 and Emma Janger '20: On November 14, 2019, after a year of keeping a low profile, 2,000 people gathered to celebrate Brett Kavanaugh’s unofficial re-emergence into society. The Federalist Society event at the Mayflower Hotel in Washington, D.C., marked his first significant public appearance since his narrow confirmation to the Supreme Court. The event came just two months after yet another allegation of sexual misconduct by Kavanaugh surfaced: the New York Times reported that Max Stier, a college classmate of Kavanaugh’s, saw Kavanaugh “with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student.” This allegation followed Dr. Christine Blasey Ford’s testimony that Kavanaugh assaulted her in high school, and Deborah Ramirez’s allegation that in college, she was forced to touch a drunken Kavanaugh’s penis, both of which Kavanaugh has denied. But just as Ford and Ramirez’s allegations were not enough to weaken conservatives’ support for Kavanaugh during his confirmation hearing, Stier’s allegation was not enough to dampen Kavanaugh’s “welcome back to society” party on that November Thursday.

Everything old is new again. If American workers are ever to emerge from the economic insecurity and political powerlessness that are so characteristic of our second, contemporary Gilded Age, they are likely to rediscover some of the innovations in labor policy and corporate governance that emerged more than a century ago in that first era of social inequality and capitalist excess. That’s because the structure of capitalism today, and the legal framework that sustains it, evokes many of the same social and economic pathologies that made Americans of that bygone era question the future of US democracy itself...A bold and comprehensive report from Harvard’s Labor and Worklife Program, “A Clean Slate for Worker Power: Building a Just Economy and Democracy,” offers twenty-first-century reformers an innovative set of policy ideas challenging corporate power in our time. If any of the carefully crafted proposals put forth in this ninety-one-page report make it into the nation’s laws, working people and their rights will take a giant step forward across the country. And in states like California, which are already innovating above and beyond federal labor law, we will be empowered to do even more to protect and encourage worker power across the economy.

An article by Gerald Neuman: The Human Rights Committee’s Draft General Comment 37 on freedom of assembly is an important contribution to the protection of a right that is very much under threat these days. The Committee has long been conscious of the need to address Article 21 of the International Covenant on Civil and Political Rights (ICCPR). The Rapporteur’s initial version and the Committee’s first reading Draft are an excellent start. Now that the Draft is open for comment, it is to be hoped that states and other stakeholders will provide useful input, particularly on practical issues about reconciling the right of peaceful assembly with the rights of others. General Comments are the Human Rights Committee’s most valuable and authoritative pronouncements, because they spell out in direct and concentrated form the Committee’s understanding of state obligations under the ICCPR. General Comments often include passages that clearly intend to provide the Committee’s interpretation of what the Covenant requires, but also passages that recommend best practices for achieving compliance with such obligations. The difference is sometimes marked by use of the verb “must” rather than the verb “should.” A “must” indicates legal obligation, while “should” is more ambiguous and often indicates a softer recommendation.

One could hardly be surprised that self-identified pro-choice Republican Sen. Susan Collins of Maine — who talked herself into supporting the confirmation of Supreme Court Justice Brett M. Kavanaugh on the grounds that the conservative jurist, picked off a list approved by right-to-lifers, would uphold Roe v. Wade (!) — would concoct some rationalization for voting to acquit President Trump in his impeachment trial... “Many GOP Senators announcing their reasons for acquittal on the Senate floor today are relying on alleged process failures or on doubts that Trump did what the House alleges he did,” constitutional scholar Laurence Tribe tells me. “That’s misguided and in many instances seems dishonest. But it’s not nearly as dangerous as relying on the wholly unfounded and genuinely crackpot theory that the offenses charged are just not impeachable — either because ‘abuse of power’ as such is an improperly framed ‘high crime and misdemeanor,’ or because the specific conduct alleged does not constitute the kind of abuse that is impeachable.” He continues, “That’s demonstrably wrong, regardless of one’s approach to constitutional interpretation, whether textualist or originalist or evolutionary or functional or eclectic. No reputable constitutional scholar — not one — defends that theory or has defended it from the founding to the present.”

Imagine that your boss calls you and your co-workers into a meeting and announces that you are all getting raises. But before any glasses are raised for a toast, you are told that you’re not getting a raise, exactly, but being offered an opportunity to become an entrepreneur. Because you’re no longer an employee, but a contractor with no benefits, no protections and no real security. Welcome to the experience of precarity in America...There has never been a more critical time to support our workers and demand stronger protections. We have a shared responsibility as a society, as we navigate the shifting environment of the future of work, to create a forward-looking, comprehensive plan that values the economic dignity of each and every worker. Clean Slate for Worker Power aims to do just that. Under the vision and leadership of Harvard Law School’s Labor and Worklife Program, and supported by the Ford Foundation, the W.K. Kellogg Foundation, the Public Welfare Foundation and the William and Flora Hewlett Foundation, a set of multi-stakeholder working and advisory groups has informed the initiative’s recommendations to reconstruct labor laws to bring balance and fairness to America’s economy. This week, Clean Slate has released a roadmap to build worker power for a more just economy and democracy.

Late last month, the Arizona Supreme Court decided a hotly contested case involving frozen embryos.  It all started in 2014, when Ruby Torres was diagnosed with cancer and became worried about her future fertility. She decided to use her eggs and a donor’s sperm to create embryos that she could then freeze for later use...As this case worked its way through the court system, the Arizona legislature responded by enacting a new law directing judges to grant viable embryos to the “spouse” who will allow them to be born, regardless of any contract providing otherwise. It also sets out what will happen if both spouses want to allow the embryos to develop. But that law did not apply retroactively to control the Torres case. The Arizona law is the first of its kind in the country, and it only applies to married couples...Moreover, as Harvard law professor Glenn Cohen and Brown Med School physician Eli Adashi pointed out, “embryo disputes have become a battlefront for larger conflagrations over the moral status of embryos.” That’s because “underlying most of the conflicts over disposition of embryos is whether one person’s right to procreate should prevail over another person’s right not to procreate,” observes GW Law Professor Sonia Suter. She notes that while courts tend to rule in favor of the party choosing not to procreate, the Arizona statute defied this trend by privileging the right to procreate.

President Trump’s impeachment trial will come to a swift end this week following the Republican-led Senate’s decision to forgo additional witnesses and evidence despite new, pointed allegations from former adviser John Bolton about the President’s actions regarding Ukraine. On the Democratic side, the primary continues apace with the Iowa caucuses, a tradition that some have said is not truly democratic due to its unique rules and format, as well as the primarily white population of Iowa and does not mirror a diversifying America. To discuss all this and more, Retired federal judge Nancy Gertner, now a professor at Harvard Law School; and Nadeem Mazen, former Cambridge city councilor and founder of Fabrk.io, a new social networking platform focusing on protecting user data, joined Jim Braude Monday on Greater Boston to discuss this and more.

An article by Noah Feldman: “Hypocrisy is the tribute that vice pays to virtue.” The public Senate deliberations in President Donald Trump’s impeachment trial reminded me of this famous maxim, coined in the 17th century by the French aristocrat and aphorist François de la Rochefoucauld. From a constitutional standpoint, it would be better if Republican senators who plan to vote against removing Trump say they find the evidence unconvincing — even if they are being hypocritical — than for them to say that Trump’s alleged conduct is fine. That’s because the precedent set by Trump’s trial depends heavily on the senators’ public explanations for their votes. If future observers see that the senators redefined impeachment so that it did not include the President abusing his power to cheat in an election and obstruct Congress, that will profoundly weaken the U.S. constitutional system. It will weaken the political virtue of the republic.

The impeachment trial of President Donald Trump in the United States Senate will take a dramatic turn on Saturday as the president's lawyers preview their defence of the president. For three days, Democrats of the House of Representatives have unleashed a torrent of facts and legal logic, peppered with video clips and underpinned by slideshow presentations to show that Trump orchestrated an improper pressure campaign on Ukraine, covered it up and should be removed from office...Most constitutional scholars reject the executive privilege and immunity arguments Trump's lawyers have claimed so far and the issue is not likely to be resolved in the Republican-controlled Senate. "The president will do everything he can to silence Bolton. He will invoke executive privilege," said Laurence Tribe, a professor of constitutional law at Harvard Law School. "Even if Bolton resists, Trump will try to go to court and there will be an issue whether it has jurisdiction or the Senate itself has to make a decision. There could be protracted litigation," Tribe told Al Jazeera.

Ammar was 16 years old when his high school headmaster in his hometown about 60 miles outside of Baghdad signed him up to join the local government militia...The government had established local militias across the country, often exploiting the service of teenage boys who had little choice but to join...As a 28-year-old asylum seeker, Ammar learned that his high school headmaster’s decision to compel him to join the militia would likely result in his deportation back to Iraq. Ammar’s case is not exceptional. The challenges he faced in applying for asylum are indicative of the ways in which exclusions to refugee status in U.S. law — originally developed to prevent Nazi war criminals from attaining asylum — have dramatically expanded in scope, preventing many innocent refugees from successfully applying for asylum and resettlement in the United States...Sabi Ardalan, assistant director of the Immigration and Refugee Clinical Program at Harvard Law School, described the ubiquitous nature of these terrorism- and persecutor-related rejections for Middle Easterners fleeing persecution: “Pretty much any client from the Middle East who’s from a country where there’s any form of activity that the U.S. considers to be ‘terrorism-related’ has ended up with accusations of providing material support to terrorists.” And where the terrorism bar may not apply, such as in the case of the government-run militia into which Ammar was forcibly conscripted in high school, Ardalan says, the U.S. may try to apply what’s known as the “persecutor bar” — a bar to asylum for those who have “persecuted others” in their lifetime.

Noah Feldman, Harvard Law Professor who testified at the House Impeachment trial, and Bloomberg Opinion columnist, discusses how the GOP Senate impeachment trial will impact the rule of law. Hosted by Lisa Abramowicz and Paul Sweeney.

When Homer Plessy boarded the East Louisiana Railway’s No. 8 train in New Orleans on June 7, 1892, he knew his journey to Covington, La., would be brief. He also knew it could have historic implications. Plessy was a racially mixed shoemaker who had agreed to take part in an act of civil disobedience orchestrated by a New Orleans civil rights organization. On that hot, sticky afternoon he walked into the Press Street Depot, purchased a first-class ticket and took a seat in the whites-only car. The civil rights group had chosen Plessy because he could pass for a white man. It was asserted later in a legal brief that he was seven-eighths white. But a conductor, who was also part of the scheme, stopped him and asked if he was “colored.” Plessy responded that he was. “Then you will have to retire to the colored car,” the conductor ordered. Plessy refused... “This case is infamous for several reasons,” Laurence Tribe, a constitutional law professor at Harvard Law School, said in a telephone interview. “First, separate is almost never really equal. Second, separate is symbolically and psychologically unequal when it is recognized to have the social meaning that whites are too good to mix with blacks, or that one race is essentially superior to the other.” He added: “The ruling suggested that if people of color feel inferior as a result of these laws, it is their own fault. It is essentially part of blaming the victim and pretending that the feeling of subjugation and subordination is simply a problem in the mind of the person on the receiving end.”

The federal judiciary charges 10 cents per page to pull up court files from its online record repository. The fees can add up quickly, and users must consider whether each click to view a public record is worth the cost. But a lawsuit in court on Monday in Washington challenges the government’s paywall to search online for case documents through the service known as PACER, an acronym for Public Access to Court Electronic Records. “The best policy is to make PACER free,” a group of retired federal judges told the court. Judicial records should be “as widely available as possible” and “wealth should not control access to justice,” according to a brief from the former judges, including Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit and Nancy Gertner of the U.S. District Court in Massachusetts. Court proceedings are open to the public, and case records can be reviewed free of charge in courthouse clerks’ offices during business hours. But downloading more than a handful of electronic records from your desk comes at a cost.

In 2017, in the kind of ruling that may not happen in the future, the US Court of Appeals for the District of Columbia found that the Federal Energy Regulatory Commission (FERC) had improperly downplayed the enormous climate impacts of the $3.5 billion Southeast Market Pipelines Project, which included the 515-mile Sabal Trail pipeline. The decision was a major victory for environmentalists at the time. The pipeline was to move fracked gas through Alabama and Georgia on its way to power plants in Florida, mainly cutting through communities of color. The Sierra Club sued FERC over its decision to approve the pipeline, successfully arguing that the agency violated the National Environmental Policy Act (NEPA) by failing to consider the downstream emissions of the project—what NEPA calls a “foreseeable outcome” of the pipeline’s construction. ... “NEPA has a special place in the hearts of environmental attorneys and activists because it was this early attempt to require agencies to think carefully about the impact they are having on the environment when they permit or otherwise undertake these projects themselves,” Caitlin McCoy, a fellow for the Environmental & Energy Law Program at Harvard University, told Sierra. “By cutting back the amount of projects that go into this process and by tightening up the scope of the review, and by making it easier to exclude consideration of certain effects and reduce the amount of alternatives to be considered, you’re cutting back the whole purpose of NEPA.”

Senator Rand Paul on Thursday stormed out of President Trump’s impeachment trial in anger after Chief Justice John Roberts declined to read a question he’d prepared because it would have named the CIA employee who prominent conservatives have accused of being the whistleblower whose complaint to the Intelligence Community Inspector General touched off the impeachment inquiry into the president. While the US Constitution’s Speech or Debate clause protects members of congress from any liability for official acts, Harvard Law School professor and constitutional law expert Laurence Tribe told BeltwayBreakfast that Paul’s decision to leave the Senate floor during trial proceedings could subject him to punishment and leave him without the immunity he would ordinarily enjoy. “I do think that he dropped the shield of the speech and debate clause when he did that for any number of reasons,” said Tribe, who has been advising House Democrats’ team of impeachment managers on constitutional questions.

Republicans hoping to end the Senate impeachment trial of President Donald Trump and Democrats seeking to extend it with witnesses and documents may be looking to one man Friday: Chief Justice John Roberts. With Republicans increasingly confident they have the votes to block any additional testimony that could delay the trial and jeopardize Trump's likely acquittal, the mild-mannered jurist sitting as presiding officer has emerged as Democrats' last hope. ... But that interpretation of Senate rules is disputed by a range of experts, including Harvard Law School professor Laurence Tribe. "The text refers only to orders 'authorized' by the rules or by the Senate, and that in turn begs the question whether such authorization exists," Tribe said. "The Senate parliamentarian seems to believe it doesn’t, and the chief is likely to defer to her."

An article by Cass Sunstein: Former Solicitor General and federal judge Kenneth Starr made a simple argument this week on behalf of President Donald Trump’s impeachment defense. We are living in the “age of impeachment,” he said on Monday, urging the Senate to acquit Trump and “return to norms” that counsel against using impeachment as a political weapon. If Trump is removed from office, Starr was suggesting, every future president will be vulnerable, at least if the House of Representatives is controlled by the opposing political party, and if the Senate can be persuaded to go along. A president named Joe Biden or Bernie Sanders or Elizabeth Warren might well be exposed to a horrific impeachment battle, simply because of the Trump precedent.