Media Mentions

An article by Noah Feldman: In a sweeping decision with worrying implications for all immigrants, the Supreme Court has held that asylum-seekers rejected by immigration officials under an expedited system do not have the right to go to court to challenge their exclusion from the U.S. The majority opinion, by stalwart conservative Justice Samuel Alito, relied on originalist historical analysis to whittle down the meaning of habeas corpus to its most minimal protections. Along the way, Alito minimized and arguably misrepresented the most famous antislavery judicial decision of all time: Somerset v. Stewart, a 1772 case in which the greatest English common law judge of the era held that an enslaved Jamaican could not be forced to return to the West Indies but must be allowed to live freely in England. The specific law at issue in today’s case, Department of Homeland Security v. Thuraissigiam, is a provision of the wordily named Illegal Immigration Reform and Immigrant Responsibility act, known as IIRIRA. The law says that when a person enters the U.S., is detained at or near the border and seeks asylum, an immigration officer can interview the person and make a decision about whether the asylum-seeker has a “credible fear” of persecution that would qualify for asylum. If the answer is yes, the asylum-seeker gets a full hearing. If the answer is no, then the seeker’s case is reviewed by a supervisor and, if the asylum-seeker asks for it, by an immigration judge. This process is known as expedited review — and under the federal law, there is no way for the asylum-seeker to go to a regular federal court and seek review of the decision.

President Donald Trump isn’t a cop, and he definitely didn’t/doesn’t serve in the military. Wouldn’t that make him a civilian? Not according to White House spokesman Judd Deere, who explained that Trump will not follow New Jersey’s quarantine order because the “president of the United States is not a civilian.” But virtually every other authority leads to the conclusion that the president is — actually — a civilian. The controversy is this: the president plans to visit his New Jersey golf club days after returning from Arizona, a state where coronavirus cases are spiking. New Jersey Gov. Phil Murphy (D), along with New York Gov. Andrew Cuomo (D) and Connecticut Gov. Ned Lamont (D), announced on Wednesday that visitors who traveled to COVID-19 hotspots would need to self-quarantine for 14 days. The White House responded to a question about the president’s post-Arizona visit to N.J. by saying 1) the president is not a civilian and 2) adequate precautions would be taken...Given on all of the above, Law and Crime asked constitutional law expert and Harvard Law Professor Laurence Tribe if it was the case that the Constitution was set up in such a way as to ensure that the Commander-in-Chief of the armed forces would be a civilian. “To say that the president isn’t a ‘civilian’ is absolute bunk, to use a more polite word than the ones that come more immediately to mind. Of course the president is a civilian, fully subject to the civil and criminal laws of this nation regardless of whatever temporary immunity from prosecution he might enjoy while holding office,” Tribe said. “And you’re certainly right that the whole structure of the Constitution points to the central conclusion that the President of the United States, even and perhaps most especially in his role as Commander in Chief of the Armed Forces, would have to remain a civilian and not himself or herself be a member of the military or of any militia.”

University students across America are calling for their universities to sever ties with outside law enforcement agencies and defund any resources currently spent on policing. Thousands of university students, graduate workers, faculty and student organizations have signed petitions, issued statements, held protests, and are organizing to compel universities to carry out their demands. Campaigners want funding currently spent on campus policing to be diverted to community-based alternatives, programs for education, youth and mental health services, and affordable housing...At Harvard, students and alumni have renewed calls to abolish the school’s private police force, the HUPD, as officers from the school were seen being utilized against protest demonstrations in the city of Boston. “Harvard University has not justified the need for a police force. Around 95% of HUPD’s caseload is property crimes, offenses,” said Joanna Anyanwu '21, a student at Harvard Law School and organizer with the Harvard Prison Divestment Campaign. In January 2020, Harvard’s student-run newspaper, the Crimson, published a feature on racism within HUPD, outlining complaints and lawsuits alleging racial discrimination within its ranks over the past two decades. “The call to abolish HUPD is an acknowledgement that policing doesn’t keep us safe,” said Amber Ashley James, an organizer with the Harvard Prison Divestment Campaign. James argued funding toward the police should be redirected to programs such as mental healthcare provided to students and faculty on campus, a crisis response team, and programs to support the homeless.

An article by Tyler Ambrose '22, Zarinah Mustafa '22, and Sherin Nassar '22: Corporations, newsrooms, and political institutions have faced public pressure to denounce and combat racism as activists nationwide have pushed for police reform. However, there is an institution guilty of perpetuating racial inequality that we have yet to scrutinize: American law schools. These institutions produce the legal professionals we rely on to interpret and uphold the law, such as the district attorneys who prosecute the police. Yet, they are overwhelmingly misguided and underinformed on issues of racism in the law. And it is not entirely their fault. Law schools are complicit. As rising second-year Black and brown students at Harvard Law School, we are keenly aware of our privilege. While America is embroiled in a people’s movement for justice long denied, we recognize and embrace our responsibility to challenge the racially sterile curriculum of law school classrooms. We cannot allow these legal institutions to continue producing race-illiterate lawyers. The consequence of this illiteracy is not hypothetical. It is police killing Black people with impunity, and harsher sentences for Black and brown men, women and children. It is judges selling Black boys to prisons for profit. It is protesters marching for weeks during a pandemic. Law schools can no longer refuse to depart from the status quo while in the same breath claim they believe Black lives matter.

An article by Sean Quirk '21: As the world continues its fight against the coronavirus, the U.S. and Chinese militaries are testing each other’s limits in the Indo-Pacific region. Beijing is bristling at its neighbors, engaging in aggressive behavior while most countries are preoccupied with the pandemic. In response, the Pentagon is operating in overdrive to show Beijing that the U.S. military remains ready—on, above and below the Pacific. At sea, three U.S. carrier strike groups were underway in the Pacific by mid-June: USS Nimitz (CVN 68) operated in the Eastern Pacific, while USS Ronald Reagan (CVN 76) and USS Theodore Roosevelt (CVN 71) sailed in the Western Pacific. In the air, an expanded and well-advertised military presence has been flying across the region. On April 30, two U.S. B-1 bombers flew a 32-hour round-trip mission from South Dakota to the South China Sea. The next day, four U.S. B-1 bombers returned to Guam for “strategic deterrence missions” in the Indo-Pacific region. The U.S. Air Force said that the bomber task force serves to provide “operational unpredictability,” two weeks after ending 16 years of continuous bomber presence on Guam. The unpredictability of U.S. bombers on the island serves to complicate Chinese military planning in a wartime contingency. Then, on June 9, a U.S. military C-40A transport plane flew over Taiwan, with permission from the Taiwanese government. Chinese Su-30 Flankers briefly entered Taiwan’s Air Defense Identification Zone (ADIZ) soon afterward.

When he first arrived at Harvard College in 1958, the precocious but awkward 16-year-old was certain that mathematics was where he would make his name in the world. He appeared to be well on his way, blazing beyond his undergraduate coursework and finishing with top academic honors. But as the long-awaited door to a math Ph.D. swung open, the young immigrant, whose Russian Jewish family had left China for California right after World War II, found himself dissatisfied and inexplicably drawn to the study of law, specifically to the U.S. Constitution. Now, 62 years later, Laurence H. Tribe ’62, J.D. ’66, retires from Harvard Law School (HLS), where he has taught since 1968. A popular and beloved teacher, Tribe’s courses have influenced generations of students, including Supreme Court Chief Justice John Roberts ’76, J.D. ’79, Justice and former HLS Dean Elena Kagan J.D. ’86, and former President Barack Obama, J.D. ’91. His canonical 1978 treatise, “American Constitutional Law,” transformed the field and helped put him on the course to becoming one of the nation’s foremost legal scholars. Tribe has been a formidable advocate in high-profile cases before the U.S. Supreme Court and secured important victories in others, including one that established the press and public’s right to attend criminal trials and another that led to a ruling by the court that sexual activity between same-sex couples is a privacy right protected under the 14th Amendment. (Observers have noted that the majority opinion written by Justice Neil Gorsuch, J.D. ’91 in the recent landmark LGBT workplace-protections ruling closely tracks an amicus brief written by Tribe and Joshua Matz, J.D. ’12.) As a trusted adviser to Democratic presidents and party leaders, Tribe has influenced nominations to the Supreme Court for nearly half a century, from the late Chief Justice William H. Rehnquist to Justice Brett Kavanaugh, much to the delight and dismay of partisans. On July 1, Tribe, 78, becomes the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus.

Education Secretary Betsy DeVos fired a shot last month in the nation’s culture wars, overhauling how colleges handle investigations of sexual assault and ending what she called Obama-era “kangaroo courts” on campus. The new Education Department rules give more protections to the accused, primarily young men who face discipline or expulsion as a result of allegations of sexual misconduct...But Ms. Devos’s actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused. “The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?” There are few more contested cultural battlegrounds than college campuses and the rules that govern sexual misconduct and due process, and thorny questions of how to define sexual consent... “I’m a feminist, but I’m also a defense attorney who recognizes the importance of due process,” said Prof. Nancy Gertner, a retired federal judge and lecturer in law at Harvard, who opposed the Obama-era rules. “These are fences I’ve straddled all my life.” ...Jeannie Suk Gersen and her husband, Jacob E. Gersen, also Harvard professors, have joined in the critique of Title IX. They wrote a law review article critiquing the creation of a federal “sex bureaucracy,” which they said leveraged “sexual violence and harassment policy to regulate ordinary sex.” Professor Suk Gersen’s assessment of the DeVos changes appeared in The New Yorker.

The most valuable company in the world never to have made a quarterly profit is on a stock market run.  Pinduoduo, which claims to have reinvented online shopping in China, has seen its share price rise by more than 130 per cent in the past three months, giving it a market value of $101bn, above that of Uber or Sony and twice that of Baidu or Foxconn.  Its founder and chief executive, Colin Zheng Huang, who earned his master’s from the University of Wisconsin-Madison and later worked at Google, is now China’s third-richest man, behind Jack Ma, the founder of Alibaba. He attributes Pinduoduo’s success to a magic formula of bargains and entertainment — he has said he wants his company to be both “Costco and Disneyland”...Pinduoduo has never had a formal chief financial officer despite its US listing. The company’s previous “vice-president of finance”, Tian Xu, resigned for personal reasons in April last year after just 10 months in the job. “Concentrating almost all corporate power in the hands of a single individual should raise a red flag, as it creates substantial corporate governance risk,” said Jesse Fried, a corporate governance expert at Harvard Law School. “That’s true even if a corporate controller serves as board chair and CEO, but not CFO. But what’s unusual and particularly worrisome here is that the controller is also effectively the CFO.”

All this week, we’ve been looking at internet access, cost, infrastructure, and today, competition. Actually, the almost complete lack of competition.  According to a 2017 study from the nonprofit Institute for Local Self-Reliance, more than 129 million people in the U.S. only have one option for broadband. Is that a government problem or a free market problem? I spoke with Susan Crawford, a law professor at Harvard and the author of the book “Fiber: The Coming Tech Revolution — and Why America Might Miss It.” The following is an edited transcript of our conversation.

Many Americans receiving tax refunds this spring and summer, including some who haven’t even filed their tax returns yet, will receive interest payments from the Internal Revenue Service for late refunds. Any individual income tax refunds issued after April 15 will be paid with interest, even though the tax-filing deadline has been extended to July 15. That IRS decision, announced Wednesday, stems from a quirk in the tax code and in the way the filing deadline was extended. The result: Many people who chose to delay filing their tax returns will get a bonus from the government. The IRS, meanwhile, will be paying for the privilege of holding on to the money since April 15—even to taxpayers who haven’t claimed it yet...The tax-code section governing interest payments says the 45-day period is determined from the due date without regard to extensions. This year, however, that 45-day rule isn’t in effect and interest started accruing after April 15. The IRS said the interest payments may arrive separately from tax refunds. The IRS approach seems fair, and it makes sure to provide interest payments to people who filed early and are still waiting for refunds, said Keith Fogg, who directs the Harvard Law School program that offers tax assistance to low-income households. “The IRS seems to have chosen a method that is very taxpayer friendly and will not subject it to criticism,” he said. “Hard to fault it for that.” There is one catch: The interest payments from the IRS will count as taxable income for 2020.

An appellate panel's decision ordering a judge to dismiss charges against former national security adviser Michael Flynn could face review by the full D.C. Circuit over issues of judicial authority and questions about whether the appeals court overstepped its own bounds. The appellate court on Wednesday ordered U.S. District Judge Emmet Sullivan to approve the U.S. Department of Justice's move to drop the two-year-old case against Flynn, who had already pled guilty but sought to withdraw the plea over alleged prosecutorial misconduct. Legal observers noted on Wednesday that the full 11-member appeals court can revisit the question of whether it had the authority to weigh in before Judge Sullivan had even ruled on the motion. Nancy Gertner, a retired federal judge and lecturer at Harvard Law School, told Law360 that the appeals court had done the "unthinkable" by issuing a writ of mandamus forcing Judge Sullivan to make a ruling before he had gotten around to making one himself. The ruling could encourage parties to attempt end-runs around federal judges by asking appellate courts to weigh in, she said. "It is simply extraordinary to order mandamus when the district court judge has not made a decision," Gertner said. "What it invites is the functional equivalent of disqualification of a trial judge by the court of appeals — you don't like what the judge is doing, you go up for mandamus." Gertner is one of two dozen former federal judges who had filed an amicus brief in the case in support of Judge Sullivan.

Sharon Block and Benjamin Sachs discuss how the pandemic has turned a spotlight on the lack of clear workplace protections in general, and in particular…

The Trump administration’s march to reshape federal environmental protection has gathered pace during the coronavirus pandemic, resulting in lighter regulation of America’s air and water. The two-pronged effort includes temporary measures aimed at fostering economic activity as well as permanent rule changes that are being pushed through in time to prevent Democrats — should they sweep November’s election — from using a little-known legislative tool to overturn them. “We’ve seen a sense of urgency in the first half of 2020 to get some of their higher-ranked items out the door,” said Hana Vizcarra, staff attorney at Harvard University’s Environmental and Energy Law Program...If Democrats were to keep control of the House and take back the Senate and the White House, they might be able to use the CRA to reverse some of the rules published by the Trump administration. Which regulations could be considered remains unclear, because it is not known how many “legislative days” there will be this year, given the time lost to the pandemic. According to George Washington University’s Regulatory Studies Center, the 60-day clock probably started ticking in late May, but might not begin until July or August. Harvard’s Ms Vizcarra estimates that of the environmental rules finalised in 2020, at least four were probably completed early enough to be safe from review under the CRA...The EPA said mercury emissions would still be regulated under Clean Air Act standards. However, the day it withdrew the “appropriate and necessary” finding, the entire regulation was challenged in a lawsuit filed by a coal company, Westmoreland Mining Holdings.  “The standards are still in place but they’ve lost this pretty major legal underpinning. And so of course, that makes them vulnerable to legal challenges,” said Laura Bloomer at Harvard.

A few weeks ago, Angely Lambert was serving customers at a McDonald’s on a bustling commercial strip in Oakland, California, when she started to feel ill on the job. Her sharp headache and dull body aches bothered her enough that she asked if she could go home, she told me, but a manager insisted that she finish her shift....Frightened, angry, essential: This is American labor during the coronavirus pandemic. Decades of economic trends and legal shifts have tilted the balance of power in the employer-employee relationship toward corporations and away from workers. This means that, months into the pandemic, millions of low-wage workers are still facing an impossible choice: their lives or their livelihood. But it need not be this way. And as businesses reopen, workers such as Lambert need more say in how... “Economic issues are life-and-death issues,” says Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School. “What COVID has done is illustrate the life-or-death nature of those economic issues in a very accelerated time frame.” ...Workers have a voice, and the government needs to let them use it, giving employees such as Lambert more of a say in creating and maintaining a safe workplace. Clean Slate for Worker Power, an advocacy group led by Block and Benjamin Sachs of Harvard Law School, is pushing for new rules to require open businesses to have a worker-elected “safety steward,” who would make sure a given workplace is complying with local and federal laws. They also propose that the government set up commissions to negotiate workplace-safety standards, business sector by business sector rather than one burger joint or nursing home at a time, and to help workers organize online. Because demanding safe conditions should not be a firing offense, the government could also pass just-cause dismissal statutes to protect workers from retaliation by their employers.

As the economy reopens after the COVID-19 shutdowns, businesses are taking a varied, often patchwork approach to ensuring health and safety for their workers, and much uncertainty persists regarding employers’ obligations and employees’ rights. The Gazette spoke with labor law experts Sharon Block, executive director of the Labor and Worklife Program, and Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at Harvard Law School (HLS), about how the pandemic has turned a spotlight on the lack of clear workplace protections in general, and in particular for women and people of color, who were disproportionately represented among those deemed essential. Block and Sachs recently co-authored a report urging that U.S. labor law be rebuilt from the ground up. On June 24, they will release the report “Worker Power and Voice in the Pandemic Response.”

As the deaths of unarmed Black people such as George Floyd, Breonna Taylor and Rayshard Brooks have reignited the national debate on excessive force and police accountability, activists have called for an end to qualified immunity, a legal doctrine that protects law-enforcement officers and other government officials from lawsuits over their conduct. The Supreme Court this month declined to hear a handful of cases related to qualified immunity, putting the ball squarely in Congress’s court...Amir Ali, the director of the MacArthur Justice Center’s Washington, D.C. office and a Harvard Law School lecturer, sees it this way: “Qualified immunity is basically a rule that police officers, correctional officials and other public officials are above the law and above the Constitution,” he told MarketWatch. “It says that even when a police officer engages in gross misconduct, whether it be police brutality or murder as we’ve seen time and time again in video after video, that they’re granted immunity from any suits trying to hold them accountable for their conduct.” ... “Whether you subscribe to a world of bad apples or you think the whole tree is rotten, we’re already talking about somebody who is a bad enough apple that they’ve done something that no reasonable officer in the circumstance would have done,” Ali said. “But qualified immunity says even that person is going to walk away with impunity — if the victim isn’t able to find a case out there that happens to look pretty much exactly like this case.”

For too long, Black History has been an afterthought in mainstream education, granted only a glimmer of sunlight during February, Black History Month. That is because white America collectively is comfortable only with the fraction of history where it can claim some level of partnership, such as the nonviolent, multiracial struggle for civil rights. Not in the national narrative is the unbroken chain of systemic racism in slavery, legally enforced segregation and today’s disparities. Not in the narrative are the centuries of white violence used to maintain white privilege. For instance, most Americans remain unaware of white mob attacks that helped end Reconstruction, the 1919 Red Summer of whites killing Black people from Chicago to Arkansas, the 1921 massacre of Black people in Tulsa, Oklahoma, and white attacks on African Americans and Latinos in the 1940s. It’s time to change that with the George Floyd Education Act, which David Cavell intends to introduce on his first day in the U.S. House if elected from the Massachusetts Fourth District this fall...The George Floyd Education Act will create a national commission to develop a curriculum and recommend how to implement it. We will bring together leading educators, historians, students, teacher organizations, and leaders in the Black Lives Matter movement, NAACP, Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, Smithsonian National Museum of African American History and Culture, the Obama Foundation and others.

In the wake of George Floyd’s killing by now-former Minneapolis Police Department (MPD) officer Derek Chauvin, few have been inclined to defend Chauvin or his colleagues who stood by and watched as he suffocated Floyd to death. Few, that is, except Bob Kroll...Kroll’s statements illustrate a central challenge in American efforts to transform policing: Police unions, the groups that represent police officers, are a powerful force that stands in the way of holding police accountable...Some veteran labor lawyers and academic labor activists are also opening up to the idea of sharply limiting police union power, recognizing this as an unusual case. A group of faculty at Cornell’s Industrial and Labor Relations school — Ifeoma Ajunwa, Virginia Doellgast, Shannon Gleeson, Kate Griffith, and Verónica Martínez-Matsuda — argued in a public statement that the labor movement “must also acknowledge that contemporary police unions have contributed to racism.” Benjamin Sachs, the Kestenbaum professor of labor and industry at Harvard Law School and a leading voice in labor law debates, published a blog post suggesting openness to limiting what issues police unions can legally bargain over, perhaps excluding from bargaining matters like discipline for police who beat or kill civilians. “The consequence of police abusing [collective bargaining] power is that people end up dead,” Sharon Block, executive director of the Labor and Worklife Program at Harvard Law and a member of the National Labor Relations Board under President Obama, told me. “That is happening at a significant rate and that’s just a completely different context from the rest of the public sector” or unionism generally.

Today on “Food Talk with Dani Nierenberg,” Dani is joined by Emily Broad Leib, the director of the Harvard Food Law and Policy Clinic, and Doug O’Brien, the vice president for network programs at the Global FoodBanking Network. Together, they talk about the new Global Food Donation Policy Atlas, an interactive guide that maps food donation laws and recommends ways to further reduce food waste. Data for five countries—Argentina, Canada, India, Mexico, and the United States—was released this month, and the atlas will eventually cover 15 nations. Then, chef Pierre Thiam talks with Dani about the potential for the ancient African grain fonio to impact the lives of farmers in West Africa. He is the co-founder of Yolélé Foods, a company that imports fonio to the U.S. from countries like Thiam’s native Senegal, and helps support the smallholder farmers who grow it. Thiam says fonio can help address malnutrition, food and economic insecurity, and even climate change.

Institutional racism in the United States contributes to the disproportional impact that the coronavirus pandemic has had on the Black community, the nation's top infectious disease expert, Dr. Anthony Fauci, said on Tuesday. When asked about the racial disparities emerging amid the pandemic during the House Energy and Commerce Committee hearing on the "Oversight of the Trump Administration's Response to the Covid-19 Pandemic," Fauci responded that the Black community has been facing a "double whammy." Fauci noted that some Black adults may not be able to social distance if they are essential workers, and there is a disproportionate prevalence of underlying conditions within the Black community, such as high blood pressure, diabetes, obesity, chronic lung disease and kidney disease...The coronavirus pandemic has made it more clear than ever before that the United States needs to invest in communities -- especially in ways that could reduce health disparities, one expert on racial justice said last week. "I think we need to think about devoting more resources to addressing the issues that create the disparities and prevalence in susceptibility to coronavirus," David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said on a Facebook Live discussion. "It's the way in which the institutional racism, for lack of a better word, seeps down into some very, very specific and particular differences in treatment," he said.Addressing racism and Covid-19 in a talk about inequities and policing on Thursday, Harris highlighted issues that have put Black communities at a disadvantage as the pandemic has gone on.

The Supreme Court’s decision not to review a major Ninth Circuit ruling that went against tech companies gave the Treasury Department a win, and could offer the department some hope as it faces increasing scrutiny of its tax regulations. The circuit court’s decision in Altera v. Comm’r upheld regulations that Apple, Google, and Facebook claimed would cost U.S. companies billions of dollars. That high-stakes win for Treasury demonstrates a potential limit to lawsuits alleging that the department didn’t follow proper procedures when issuing regulations. Experts still caution, though, that Treasury should be careful at a time when it faces increasing oversight...Stephen Shay, a senior lecturer at Harvard Law School and former Treasury official, cautioned, however, not to read too much into Treasury’s win. He pointed to Altera as well as a decision dealing with Treasury regulations from the 1960s in SIH Partners, LLLP v. Comm’r, as demonstrating that Treasury can win against challenges to regulations that were issued before the more modern understanding of how the APA applies. “But I’d be leery—I think agencies should be careful in what they would say is irrelevant,” he said. “One of the things that’s induced by this whole emergence, or reenforcement, of the Administrative Procedure Act process is that you’re better off at least touching most comments unless you’re very clear they’re off the wall.”