Media Mentions

A landmark Supreme Court decision this week that affirmed protections for lesbian, gay, bisexual and transgender employees in the workplace could provide powerful ammunition for climate litigators. In a 6-3 opinion Monday, Justice Neil Gorsuch wrote that Title VII of the Civil Rights Act protects "all persons" from discrimination based on sex, including sexual orientation and gender identity. Employees, the court found, can therefore not be fired from their jobs simply for being gay or transgender. The case, Bostock v. Clayton County, Ga., could serve as key precedent for lawyers pushing for more stringent regulation of greenhouse gases under the Clean Air Act...Gorsuch's decision in Bostock follows a similar logic path to the opinion in the watershed climate case Massachusetts v. EPA, said Joe Goffman, executive director of Harvard University's environmental law program. In the 2004 case, the Supreme Court acknowledged that Congress crafted the Clean Air Act with "unknown unknowns" in mind and said that the plain text of the statute left room for EPA to make decisions, such as whether to regulate greenhouse gas emissions as air pollutants, based on new scientific understanding. Something similar happened in Gorsuch's reading of the Civil Rights Act, said Goffman, a former EPA official. "The language of the statute was crafted in a way so that it could accommodate situations that were not necessarily anticipated by Congress at the time the language was crafted, but which the statue could still cover as, in this case, society's understanding of the issue evolved," Goffman said.

Victor Madrigal-Borloz, UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, called the ruling a “very significant step towards breaking the cycle of discrimination that often condemns lesbian, gay, bisexual, trans and gender-diverse persons to social exclusion, and ultimately, to poverty." The ruling clarifies that Title VII of the United States Civil Rights Act of 1964 – which bans discrimination based on sex – is applicable to sexual orientation and gender identity...In most UN Member States, national laws do not provide adequate protection from employment-related discrimination on grounds of sexual orientation and gender identity, Mr. Madrigal-Borloz said. In the absence of such laws, employers may fire or refuse to hire or promote people, simply because they are – or thought to be – gay, lesbian, bisexual, trans or gender-diverse... “The judgement will have an extremely positive impact in addressing stigma, promoting sociocultural and economic inclusion, and furthering legal recognition of gender identity – all of which have been identified by my mandate as fundamental to address the root causes of violence and discrimination,” Madrigal-Borloz said. The case also illustrates the vital role that victims can play in furthering justice. “It is sad to note that two of the victims in these cases did not live to see the outcome of their struggle, but uplifting to know that their resolve, their resilience and their determination will now benefit millions of LGBT persons,” he added. Victor Madrigal-Borloz (Costa Rica) assumed the role of UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity on 1 January 2018, for a three-year term. He is a senior visiting researcher at the Harvard Law School Human Rights Programme.

Sen. Elizabeth Warren has said she would agree to become Joe Biden’s running mate if he asks her to join him on the Democratic ticket for November’s election. Warren, who turns 71 on Monday, may well end up there, taking on President Donald Trump and Vice President Mike Pence, as she has emerged as a leader on Biden’s short list. In the buildup to Biden’s choice, expected by early August, and during the crises stemming from the coronavirus and racial injustice, Warren has been a leading voice for the progressive wing of the Democratic Party. She recently found a middle ground with some of her Republican colleagues in agreeing that Confederate names and statues on military bases should be taken down..Progressives also think Warren could push Biden more to the left on a wide range of issues. Harvard Law professor Laurence Tribe, who is urging Warren’s selection on the ticket, told CNBC that while he believes Biden’s instincts are progressive, the Massachusetts lawmaker could counsel him on some liberal policies. “While [Biden] has deep convictions he’s also a good and serious listener, so there’s every reason to think that he’d be open to persuasion by Warren on any of a number of economic issues — especially those affecting the lives of ordinary consumers and creditors, students and others, who have been squeezed mercilessly by the structure of our tax and bankruptcy laws and the maldistribution of wealth and the political power it currently wields throughout the system,” Tribe said in an email.

Hosted by June Grasso. Guests: Barry Ritholtz, founder of Ritholtz Wealth Management and Bloomberg Opinion columnist: "Too Much Uncertainty? It’s Always Been Like This." Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: "Trump, Barr Violated Free Speech by Clearing Park." Cathy O’Neil, mathematician and Bloomberg Opinion columnist: "Maybe Sheryl Sandberg Should Be Leaning Out." Tara Lachapelle, Bloomberg Opinion columnist: "Kylie Jenner Has Something Else to Pout About." Jonathan Bernstein, Bloomberg Opinion columnist: "What Will Republicans Look Like After Trump."

An article by Cass Sunstein: Does the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action? That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost. Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it: "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.

An article by Noah Feldman: President Donald Trump’s administration is suing former national security adviser John Bolton in a last-ditch effort to block publication of his forthcoming memoir, which contains damaging allegations about Trump’s attempts to get China’s President Xi to help him win re-election. The Trump administration apparently understands that directly asking the court to bar publication would fail. So instead, government lawyers have invented a series of extraordinarily weak legal claims based on the nondisclosure agreement that all national security officials must sign. The case should be dismissed posthaste by the U.S. District Court. It is a frivolous lawsuit, in lawyer’s jargon. Worse, it attempts an end-run around clearly established First Amendment law. If I were Bolton’s lawyer, I would seek not merely dismissal but sanctions against the government and legal fees. To be clear, I have no great sympathy for Bolton personally. He should have testified before the House of Representatives during last year’s impeachment inquiry, when what he has to say would have mattered. As you may recall, Bolton engaged in an elaborate fan dance at that time. When the House seemed poised to call him, he said he would not testify. He changed his mind at just the moment when the impeachment trial shifted to the Senate, where Republicans were in control — and never going to call him. Somewhere along the way, Bolton announced that he intended to write a book. It wasn’t a good look. Nevertheless, law is law, and free speech is free speech. There are important principles at stake here. As is often the case, when the government comes after a citizen’s free speech, the citizen isn’t a model one.

Harvard faculty members in law and gender issues declared Monday’s Supreme Court ruling protecting gay and transgender workers a landmark for LGBT rights... “It’s based in textual reasoning and rather persuasive in those terms,” said Gerald Neuman, co-director of the Human Rights Program at HLS. “It is written in a way that may be more persuasive to members of the public. The people who are in favor of this kind of discrimination, who are vehemently opposed to this interpretation — I don’t think it will be persuasive to them. But people who might say, ‘I’m not in favor of this kind of discrimination, but I don’t think that the law itself addresses it’ … could be persuaded.” ... In a series of tweets, HLS Professor Laurence Tribe also praised Gorsuch’s work. “Today’s 6-3 triumph for the rights of homosexual and transgender people is a victory for justice and for reading laws as they were written rather than as some assumed or intended them to operate,” he wrote. “Justice Gorsuch conducted a master class in interpreting legal texts when he patiently explained why the unexpressed intentions of a law’s authors or the conversational conventions of its users cannot be permitted to trump its unambiguous meaning…Of course progressives don’t always welcome textual analyses and might worry that this Gorsuch majority will complicate their lives in other contexts. To be sure, this remains a very conservative Court. But I say: Be glad for just outcomes when they come your way.”

Is now the time to invest in Chinese e-commerce giant Alibaba (NYSE:BABA)? Shares in the company have had a rocky ride in 2020, but that’s true of most stocks. Despite the havoc cause by the novel coronavirus and escalating tensions with China, Alibaba stock has now virtually bounced back. Before the markets tanked earlier this year, BABA had increased in value by 142% in just the past four years. After riding out the pandemic, I think this A-rated stock is back on the growth path...The coronavirus pandemic is one thing, but there’s potentially a bigger threat to American investors in Chinese stocks — including Alibaba. When the trade war between the U.S. and China flared up again last fall, President Donald Trump’s administration floated the idea of delisting Chinese stocks. In May 2020, Trump once again raised the prospect of delisting Chinese companies. If they don’t adhere to the Sarbanes-Oxley (SOX) Act, they could lose their Nasdaq or New York Stock Exchange listing. That would not be good news for investors in Alibaba stock. However, it’s not time to hit the panic button yet. In order for the delisting to take place, legislation would need to pass a vote in the House of Representatives. And significant effort is being put into ensuring it doesn’t even get that far. Speaking to CNBC, Harvard law professor Jesse Fried noted: “Wall Street will be lobbying to try to block it, because it makes a lot of money off of listings of Chinese companies in the United States. They will probably be asserting pressure on people in the House to block the legislation from being put to a vote.” Professor Fried also makes the point that while Trump is a frequent China-basher, he likely has mixed feelings about actually following through with delisting: “…Trump is very interested in maintaining the primacy of our exchanges and he’s not going to want to see these companies flee to Hong Kong or London or mainland Chinese exchanges.”

A report by Ryen Bani-Hashemi '22, David Dapaah-Afriyie '22, Adira Levine '22, and Jessica Li '22: Social media companies have occupied particularly critical roles in the COVID-19 pandemic. Whether in disseminating information or providing new entertainment options while billions of individuals are social distancing, the largest platforms have been stepping up in both predictable and novel ways. There are dozens of technology companies that could be analyzed in the scope of this report. However, because resource constraints inform the range of content moderation options available to smaller companies, this report instead focuses primarily on Facebook, Twitter, Instagram, and YouTube and their steps to combat coronavirus-related abuse on their platforms. As the pandemic pushes more users to online spaces, a concurrent infodemic is pushing waves of false content to those same platforms. The dramatic rise in posts about miracle cures, virus conspiracy theories, and fake reports of draconian government action have led platforms to adopt new products and policies to combat misinformation. These interventions represent a substantial new assumption of responsibility for the accuracy of the content on their sites. This report contains two sections. The first section aims to create a taxonomy of misinformation, detailing its forms, spread, and effects. The second section documents and compares how platforms have responded to misinformation during the pandemic, and proposes changes to improve platform responses to the infodemic.

Featuring Elizabeth Bartholet, Morris Wasserstein Public Interest Professor of Law and Faculty Director, Child Advocacy Program, Harvard University...Long before COVID-19 forced almost all children to receive education at home, homeschooling—a parental decision to educate their children at home—was growing. For advocates, its purpose and value is to open space for diversity, enabling families to provide education different from what any school offers. Critics fear that it isolates children from the myriad people and ideas in society and can enable child abuse to go unchecked. These positions have recently come into high‐​profile conflict and seem irreconcilable. Are they? Or do both sides have legitimate concerns that can be resolved through compromise? Join us for this timely discussion.

An article by Cass Sunstein: In the early 1980s, I was one of four law clerks for Justice Thurgood Marshall, probably the greatest civil rights lawyer in U.S. history and the first African American to be appointed to the Supreme Court. In a discussion with our boss, we expressed concern that the high court might overrule its Miranda decision, which requires police officers to provide the famous warnings to people in custody. We thought that the Miranda warnings were an essential means of preventing official abuse in general and of protecting African Americans in particular. Marshall looked at us with amusement. This is what he said: “Miranda? I like Miranda well enough. But not all that much. When I lived in New York City, a long time ago, I had a nice, long talk with head of a local precinct about police misconduct and the United States Constitution. Here’s what he did the next week. He got all his cops in a big room, and said, ‘If I hear that any of you has mistreated anyone in New York – beaten him up, knocked him down, violated his civil rights, targeted him because of his race, anything like that – you’re fired. Immediately. On the day.’” Marshall took a long pause. And then he thundered: “And that’s a lot better than Miranda!” In the 1990s, I lived on the south side of Chicago, and my car was stolen. A police officer recovered it. As we talked about what had happened, he asked me, “And what do you do for a living?” I responded, “I teach constitutional law.” He looked displeased. I thought I knew why, and asked, “Oh, does the Fourth Amendment give you any trouble?” (The Fourth Amendment forbids unreasonable searches and seizures.) His answer: “Oh, no, not at all. I didn’t violate the Fourth Amendment unless I say that I violated the Fourth Amendment, and I never say that I violated the Fourth Amendment.”

A podcast by Noah Feldman: William Eskridge, a professor at Yale Law School and author of the forthcoming book "Marriage Equality: From Outlaws to In-Laws," discusses this week's historic Supreme Court ruling that protects gay and transgender rights in the workplace.

An article by Jeannie Suk Gersen: I first saw the “Hospital Arraignment” shift listed on my schedule as a rookie prosecutor in Manhattan, in 2004. I soon learned that criminal arraignments routinely took place around a hospital bed, because it was common for a person to be seriously injured during his or her arrest. A judge, prosecutor, defense lawyer, and court reporter would travel in a car to a local hospital, where the person lay handcuffed to the bed, and proceed to conduct the court hearing, stating the crime charged, asking for the defendant’s plea, and sometimes setting bail. My first time, the defendant, a middle-aged African-American man who was arrested for a misdemeanor, was bloodied from head wounds and was moaning in pain. The police claimed, incredibly, that the man had put his own head through the window of a police car. We all knew that police officers’ use of force was common, that they commonly tacked on an accusation of “resisting arrest” to misdemeanor charges in order to justify it, and that the legal system would believe an officer’s account over an arrestee’s claim of excessive force. My questioning of police accounts of arrests quickly led to my having an unfavorable reputation among cops I worked with. I left the job only six months after I started. George Floyd, of course, did not make it to a hospital arraignment in Minneapolis on May 25th. He was killed by a white officer, Derek Chauvin, in the course of an arrest on suspicion of using a counterfeit twenty-dollar bill to buy cigarettes. Chauvin kneeled on Floyd’s neck for nearly nine minutes while Floyd pleaded, “Please, I can’t breathe.” Floyd’s death, in the light of day, as three other officers looked on or helped restrain him, was captured on video by a teen-age bystander.

Harvard faculty—including Tomiko Brown-Nagin and Randall Kennedy—offer recommendations of books on race everyone should read.

Gerald Neuman ’80 and Laurence Tribe ’66 weigh in on Monday's Supreme Court ruling protecting gay and transgender workers.

The penultimate chapter of sociologist Roberto Gonzales’s book Lives in Limbo—the chapter he calls the most painful and gripping to read, the one that would be its climax, if the book were a work of fiction—opens with a story about two factory workers on an auto-parts assembly line. The men are friends, both in their late twenties, and both undocumented immigrants. Like everyone else in Gonzales’s book, they’ve spent most of their lives in the United States. One of them, Jonathan, never finished high school, while the other, Ricardo, has a college degree in political science and a master’s in management...An ethnographer as well as a sociologist, Gonzales is a professor of education and director of the Immigration Initiative at Harvard. He studies the lives of young undocumented immigrants like Jonathan and Ricardo, people who were brought, or sent, or smuggled into the United States as children, often before they were old enough to remember, and who then grew up here, in a state of perpetual in-between...Some colleges, especially those with larger DACA populations, have stand-alone campus centers for immigrant students, with full-time staff to help the undocumented navigate immigration laws and to connect students to other resources. At Harvard, undocumented students receive assistance from the Harvard Immigration and Refugee Law Clinic at the Law School, and a training program called UndocuAllies works to educate faculty about the basics of helping undocumented students, but that exists only at the GSE, and is run by students, who cycle in and out.

A petition in front of federal regulators to effectively overturn net metering policies nationwide faced overwhelming bipartisan opposition on Monday from state regulators, members of Congress, public power groups and others. Though several utilities filed to intervene on the petition, including Pacific Gas and Electric, Xcel Energy and Duke Energy, none filed comments by the June 15 deadline, so it remains unclear where utilities fall on the issue. Investor-owned utility group Edison Electric Institute (EEI) has said it finds net metering to be a "regressive and poor public policy tool," but the group ultimately decided against filing comments during this initial period. Opponents of the petition decried the move as an affront to states' rights and legally questionable on a number of grounds. Others were also critical of the group that introduced the petition and urged the Federal Energy Regulatory Commission to require it to disclose its backers. State regulators, the renewable energy industry, environmentalists, members of Congress and others have been openly opposed to the New England Ratepayers Association (NERA) petition from the start, but observers have been less sure of where utility interests would fall, particularly after EEI declined to file comment. "The wild card here will be the number of utilities that have already declared their intent to file something here, and I don't know which side of this they're going to come down on," Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School, told reporters last week.

More than 80 Harvard-trained lawyers petitioned the US and Chinese governments for the release of Ekpar Asat, a Uyghur entrepreneur who disappeared upon returning to China from a State Department program in the US. His sister Rayhan Asat attended Harvard. Their two letters, both dated Tuesday, come as President Donald Trump is said to be expected to sign legislation aimed at holding Chinese officials accountable for crimes committed against Uyghurs and other minority ethnic communities in Xinjiang. Rayhan Asat, Ekpar's sister and main advocate in the US, told CNN she hoped, "as (the) leader of the free world," Trump would speak out about her brother's alleged enforced disappearance and arbitrary detention at the hands of the Chinese government. In 2016, Ekpar Asat participated in the State Department's International Visitor Leadership Program (IVLP). During the program, he traveled around the US, even visiting CNN's headquarters in Atlanta. It had been "a moment of triumph" for him to be selected to participate in the prestigious professional exchange program, his sister Rayhan Asat told CNN...In the letter to the Chinese government and the Chinese ambassador to the US, the lawyers -- who hail from more than 50 countries -- said Ekpar Asat's "ordeal has touched and outraged us personally." "Like Mr. Asat, most of us travelled to the United States to further our education and training as leaders. We returned safely to our families in our home countries. We are devastated that Mr. Asat did not. We are deeply disturbed by the arbitrary nature of his detention, secret trial, and the lack of any basic sense of justice," they wrote, calling for Ekpar Asat's unconditional release. Rayhan Asat said she does not know why her brother would have been targeted except for his participation in the State Department program, telling CNN that Ekpar Asat was an active community member who hosted events that were well-received by the government in Xinjiang.

It was a far cry from “defund the police,” but the response was severe anyway. In 2019, Steve Fletcher, a first-term member of the Minneapolis City Council, decided to oppose a budget proposal to add more officers to the Police Department. Business owners soon started calling Fletcher, who represents part of downtown, complaining of slow police responses to 911 calls about shoplifting...But after a Minneapolis officer knelt on the neck of George Floyd for more than eight minutes, killing him — unleashing a national protest movement that has yielded criminal charges against him and the other three officers on the scene — the police union, like many others, has become a target for otherwise labor-friendly liberals like Fletcher who see them as major obstacles to reform...The labor movement in the U.S. is facing questions about what its relationship should be with the hundreds of thousands of police officers who make up a major portion of unionized public-sector workers. The AFL-CIO has faced growing calls to disaffiliate from the International Union of Police Assns., and some liberal activists have started calling for Democratic politicians to reject campaign contributions from police unions. “Even for people who have a deep long-standing genuine commitment to the labor movement ... there’s a recognition that the power of unionization, the power of collective bargaining is being abused in indefensible ways by police unions,” said Benjamin Sachs, a Harvard law professor and faculty director of the school’s labor and work-life program, which will be studying potential legal reforms to collective bargaining by police.

In a landmark ruling Monday, the Supreme Court said the worker language of the Civil Rights Act of 1964 also protects LGBTQ Americans from discrimination. We dig into this ruling and what it means for workers and employers with WBUR senior news correspondent Kimberly Atkins and retired federal judge Nancy Gertner. We also touch on other news from SCOTUS today, as well as cases still pending.

The margin of the ruling and the author of the opinion were as stunning as the result. On Monday, Justice Neil M. Gorsuch wrote in a 6-3 ruling (joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer) that the ban on sex-based discrimination in Title VII of the 1964 Civil Rights Act protects employees from discrimination based on sexual orientation or gender identity...The decision quite closely adheres to an amicus brief filed by constitutional scholars Laurence Tribe and Joshua Matz submitted on behalf of several former solicitors general, including Ted Olson and Seth Waxman, and former acting solicitors general Walter Dellinger and Neal Katyal. Tribe tells me that “the decision is a rare shining moment in the midst of all too much darkness," pointing out the concrete impact on millions of Americans and marking “the first victory ever for transgender rights at the Supreme Court — as well as the first clear recognition that discriminating against individuals because of their sexual orientation constitutes sex discrimination pure and simple even if those who wrote the relevant statutes might not have anticipated that reading.” There are several main takeaways. First, Gorsuch’s opinion should remind Republicans that a true textualist who gives an honest reading of a statute or the provision of the Constitution at hand is not simply a vessel for evangelical Christians and other right-wingers to impose their views on a pluralistic society. As Tribe puts it, the decision shows that “applying legal texts in accord with their meaning can sometimes triumph over efforts to read the minds of the authors and that at least some Justices, including Justice Gorsuch, are consistent in their textualism even if others, including it seems Justices [Brett M.] Kavanaugh and [Samuel A.] Alito [Jr.] and [Clarence] Thomas, are not.”