Media Mentions

Police unions have long had a singular—and divisive—place in American labor. What is different at this fraught moment, however, is that these unions, long considered untouchable, due to their extraordinary power on the streets and among politicians, face a potential reckoning, as their conduct roils not just one city but the entire nation...To critics, all of this highlights that the disciplinary process for law enforcement is woefully broken, and that police unions have far too much power. They contend that robust protections, including qualified immunity, give many police officers a sense of impunity—an attitude exemplified by Derek Chauvin keeping his knee on George Floyd’s neck for nearly nine minutes, even as onlookers pleaded with him to stop. “We’re at a place where something has to change, so that police collective bargaining no longer contributes to police violence,” Benjamin Sachs, a labor-law professor at Harvard, told me. Sachs said that bargaining on “matters of discipline, especially related to the use of force, has insulated police officers from accountability, and that predictably can increase the problem.” ...Benjamin Sachs, the Harvard labor-law professor, argues that the union movement needs to join the push for police reform. “When unions use the power of collective bargaining for ends that we...deem unacceptable it becomes our responsibility—including the responsibility of the labor movement itself—to deny unions the ability to use collective bargaining for these purposes,” he wrote. “We have done this before. When unions bargained contracts that excluded Black workers from employment or that relegated Black workers to inferior jobs, the law stepped in and stripped unions of the right to use collective bargaining in these ways.” Sachs proposes amending the law to curb the range of subjects over which police unions can bargain, perhaps even prohibiting negotiations over anything involving the use of force.

An article by John Ketcham '21: Like living organisms, it is the cities that can adapt to changing circumstances that are best able to thrive. COVID-19’s effects on the way people live and work require cities to be flexible in developing new programs and modifying existing programs to suit the new norm. Once-daily commuters are now more likely to work remotely at least part of the time, which could make New York City office space less expensive. At the same time, old problems remain, notably the high cost of housing, driven in part by restrictive zoning polices that limit new housing supply and stifle economic opportunity. Unaffordable housing makes those in the lower- and middle-income brackets more likely to live in crowded dwellings — with ominous consequences in the age of COVID-19. As we look to revitalize our cities in the wake of the pandemic, a new application of an old tool, the transferable development right (TDR), can play an important role in fostering an abundance of urban opportunities for all residents. TDR programs work by granting the owners of properties designated for preservation, or “sending sites,” the ability to transfer unusable development potential to other properties within a defined area, termed “receiving sites.” This potential can be applied at receiving sites to exceed the maximum floor area that is buildable under the baseline zoning code. Sending site owners can either use their TDRs on receiving sites that they also own, or sell their TDRs to others.

Colorado renters will get more help with their rent payments and have an extra 20 days before non-payment of rent leads to eviction under an executive order signed this week by Gov. Jared Polis. But housing advocates say the order isn’t enough to keep thousands of people from being forced from their homes...The COVID-19 Eviction Defense Project, formed in March to provide legal representation for tenants facing eviction, estimated in April that between 300,000 and 400,000 people in Colorado are at risk of losing their homes by September, after local and federal eviction moratoriums and emergency unemployment benefits expire. Sam Gilman, a data analyst and co-founder of the COVID-19 Eviction Defense Project, said that is a conservative estimate because it assumed some people had savings to help cover rent or mortgage payments or had access to credit. Gilman said a “looming avalanche of evictions” will get worse when federal enhanced unemployment benefits turn off at the end of July. “That $600 a week that they’re getting on top of Colorado’s unemployment is a lifeline, and enables folks to pay their rent.”

The Supreme Court has extended a life-support line to some 650,000 so-called "Dreamers" on Thursday, allowing them to remain safe from deportation. ... TOTENBERG: At the end of the day, of course, the man of the hour is Chief Justice Roberts. Amid a politicized and polarized society, he repeatedly tries to portray the court as apolitical. He sees the growth of organizations on the hard right, like the Judicial Crisis Network, and on the hard left, like Demand Justice, each trying to stack the court with like-minded justices or to pack the court by expanding the number of justices. Harvard law professor Richard Lazarus has known the chief justice for decades. RICHARD LAZARUS: What these decisions this week underscore is we have a chief justice who is, plainly, working hard to try to demonstrate to the American people that the court, unlike the other two branches, is doing its job. He wants the American people to believe there's a thing called law, and a justice's job is to apply it.

An op-ed by Cass Sunstein: The Supreme Court’s decision to strike down the Trump administration’s attempted rescission of the program known as Deferred Action for Childhood Arrivals is, above all, a tribute to the rule of law. It vindicates a defining idea in administrative law and a central check on the administrative state: Agencies must not behave arbitrarily. ... The most important words in Chief Justice John Roberts’s opinion for the 5-4 majority are that “particularly when so much is at stake,” the U.S. “Government should turn square corners in dealing with the people.” The court’s conclusion was that the Trump administration failed to engage in reasoned decision-making. It did not turn square corners.

An op-ed by Noah Feldman: Chief Justice John Roberts has come to liberals’ rescue again, this time providing the decisive fifth Supreme Court vote to strike down the Trump administration’s rescission of DACA, the Deferred Action for Childhood Arrivals program. It’s morally uplifting that dreamers now won’t have to live under threat of deportation; and it’s unlikely that President Donald Trump will be able to rescind DACA, with new justifications, before he leaves office. But don’t think that Roberts was motivated by any liberal sympathy for dreamers. The best explanation for his ruling is that Roberts is fed up with Donald Trump’s disrespect for the rule of law. Now he’s standing up for the role of the judicial branch of government in checking careless, lawless action by the executive.

... Crump is an attorney of our times, as much a creature of the green room as the courtroom. In a nation lousy with lawyers, he has become the go-to advocate for families who have lost relatives to police brutality, as though his is the only name on the list. ... Police brutality in America, Crump argues, dates its origins to colonial slave patrols in the early 18th century. But “videos have changed everything. They’ve shifted believability,” says Kenneth Mack of Harvard Law School. Generating publicity in advance of trial has a history among civil rights attorneys, including Marshall, Mack says. “Crump’s engaged in multimedia advocacy,” he says. “Putting pressure on state authorities to investigate cases that otherwise would not be investigated.”

Today, the Harvard Law School LGBTQ+ Advocacy Clinic (HLAC) and the National Center for Lesbian Rights published a first-of-its-kind legal resource guide for transgender youth in the United States. The newly-released Trans Youth Handbook serves as a comprehensive legal resource guide that covers the rights of trans youth across a wide spectrum of situations, including identity documents, school, health care, non-affirming care environments, and work. ...“Study after study shows that trans youth thrive when they are respected for who they are and affirmed in their gender identities,” said Alexander Chen, Esq., Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic. “I am delighted that this important resource will be available to trans youth and their families who are seeking to understand their legal rights.”

At Harvard Law School, Professor Sabrineh Ardalan ’02 broke down the decision, saying that the court found the administration hadn’t adequately explained why DACA was unlawful.

David Harris and Ken Mack and other members of the Harvard community reflect on the significance of Juneteenth and what the holiday means to them.

... Members of the community, including students and alumni who are protected under DACA praised the Court’s ruling, among them Mitchell Santos Toledo, J.D. ’20, a recent Harvard Law School graduate who arrived in Cambridge not long after President Donald Trump announced his plans in 2017 to cancel the program, which had been instituted by President Barack Obama in 2012. “It was rough. You’re talking about moving across the country, starting this huge academic journey at a School at Harvard, and then having the only semblance of protection that you’ve known for the past five, six years sort of just yanked from underneath you,” said Toledo, whose name was listed in the documents submitted to the court in support of DACA. ... At Harvard Law School, Professor Sabrineh Ardalan broke down the decision, saying that the court found the administration hadn’t adequately explained why DACA was unlawful. “The court says that if the administration wanted to end DACA, it would have had to engage in a much more rigorous analysis, including of the reliance interests at stake, and it didn’t provide a reasoned explanation for its decision. And so, its decision to end the program was arbitrary and capricious because it didn’t go through those steps,” said Ardalan, who directs the Immigration and Refugee Clinic at Harvard Law School, which helps hundreds of people with undocumented status through a range of programs.

In a Q&A, Radcliffe Dean and Harvard Law Professor Tomiko Brown-Nagin reflects on the history and relevance of June 19, 1865:  "The antecedent historical event is the Emancipation Proclamation, which [President Abraham] Lincoln had signed in 1863, as the nation entered the third year of a civil war, declaring that persons held as slaves within the rebellious states were henceforth free. ...It is significant, in my view, for making a point that many civil rights scholars and scholars of social change and legal change often have made—and that is that freedom is a constant struggle. There’s no one moment in time that that would stand for the proposition that people are in fact free. It takes action over time. And every generation struggles to achieve freedom anew. But as they were in Texas, the vestiges of bondage and segregation remain intact.

In a major setback for President Trump, the US Supreme Court blocked the administration’s attempt to end a federal program that protects 700,000 immigrants nationwide and more than 5,600 in Massachusetts from being deported. ...“Given the tough questions asked at oral argument, it wasn’t at all clear which way the court would come out,” said Sabrineh Ardalan, director of the Harvard Immigration and Refugee Clinical program, which provides legal help to immigrants. “This is such a critically important victory and recognition that the Trump administration’s efforts to end DACA were unlawful.”

An op-ed by Lecturer on Law Alex Chen ’15: Since the start of the modern LGBT movement in the 1960s, some members of the community have questioned the degree of common interest between lesbian, gay, and bisexual people on the one hand and transgender people on the other. Notwithstanding similar experiences of discrimination and a shared history of activism, members of both communities have sometimes viewed one another with mutual suspicion. LGB people, protective of hard-won legal, political, and societal victories, have worried that association with an even more unfamiliar and stigmatized minority group would imperil those advances. Trans people, weary of advocates prioritizing gay rights over trans rights, have worried that LGB people might achieve greater equality and then abandon the field without extending a hand to transgender people. But the Supreme Court’s landmark decision on Monday in Bostock v. Clayton County provides the strongest possible counterargument that when LGBT people band together to press for rights for the entire community, they can achieve momentous victories that would not have been possible working on their own.

In yet another blow to the right’s extreme and mean-spirited agenda, the Supreme Court on Thursday held that President Trump had not lawfully pulled the plug on President Barack Obama’s executive order instituting the Deferred Action for Childhood Arrivals program. ...Constitutional scholar Laurence Tribe told me, “This was an important victory not just for the Dreamers, who now become a campaign issue in light of the limbo in which their status was left by the Court’s 5-4 decision, but for the rule of law.” He explained, “The majority’s refusal to accept the administration’s post-hoc rationalization for DACA’s rescission — a rationalization that, as the Chief Justice’s opinion made clear, failed to explain, let alone justify, invalidating the forbearance part of the DACA policy and addressed only the benefits part — was an important vindication for the principle that agency decisions that are arbitrary and capricious when issued cannot be rescued by some after-the-fact suggestions of alternative grounds on which the decisions might have been reached.”

... To understand the significance of Juneteenth, a blending of the words June and 19th, we asked some members of the Harvard community what the holiday means to them. ...David Harris, Ph.D.’92, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School: "Juneteenth is a defining day. However empty the promise of freedom often appears to have been, Juneteenth has remained a day uniquely celebrated by the descendants of the formerly enslaved." ...Kenneth Mack, Lawrence D. Biele Professor of Law at Harvard Law School; affiliate professor of history at Harvard University: .".. We commemorate Abraham Lincoln in various ways, but we don’t have a national commemoration of the triumph over slavery, which has to be one of the most important moments in American history. One should consider Juneteenth in that context. The best case to be made for Juneteenth would be as a commemoration of both the legacy of slavery and the success of the movement to abolish formal slavery in the United States."

As the nation deals with civil unrest and the global pandemic, the Trump administration quietly continues to roll back environmental regulations. Trump came into office promising to rid the nation of what he called unnecessary and burdensome rules on the fossil fuel industry and others. Environmental regulation trackers like those run by Harvard and Columbia Law Schools find that he’s made good on that promise, so far dismantling 100 major climate and environmental policies. The Trump administration has weakened efforts to reduce climate-changing carbon emissions from power plants, rolled back mileage standards on cars and trucks, reduced Clean Water Act protections, and shrunk the size of two national monuments by millions of acres. We've examined many of these moves on this podcast since Trump took office in January 2017. Today, Trump on Earth’s Julie Grant talks with Hana Vizcarra staff attorney at Harvard Law School's Environmental and Energy Law Program, who helps run its environmental rollback tracker to get an idea of the scope of this legacy.

While the U.S. Senate has unanimously passed a bill to delist Chinese companies trading on American bourses, the legalization must clear the House of Representatives before signed into law by President Donald Trump. If the bill does indeed become law, the real loser here is the U.S. stock exchanges and investment banks. According to a Bloomberg report today, the NYSE and Nasdaq would lose millions of dollars in fees that the Chinese firms pay to be listed on their bourses. On the other hand, the new law, proponents argue, would help protect American investors from widespread fraud and safeguard national security. The Luckin Coffee Inc. (Nasdaq: LK) scandal, in which the company allegedly fabricated $314 million in sales and hurt investors, will likely be seen as the straw that broke the regulators' back...Assuming the bill does pass, China must allow PCAOB inspections to avoid delistings. However, Jesse Fried, a professor of law at the Harvard Law School, told CapitalWatch he is skeptical that China will allow them to do so. "So if the law is passed, I expect to see a migration of Chinese firms from our [U.S.] exchanges," Fried told CapitalWatch on Tuesday. He added, "They will either be taken private, probably with the objective of relisting in Hong Kong or elsewhere after a year or two, or they will transition to trading on another exchange."

After the near murder of a 75-year-old man on a sidewalk in Buffalo, New York, the city’s police union, the Buffalo Police Benevolent Association, responded with organized demonstrations of support for the officers who shoved the elderly man to the ground. After the murder of George Floyd, the Minneapolis Police Officers Federation was defiant, with President Bob Kroll, who had recently defended his role in three police shootings, attacking Floyd as a criminal, and lashing out at local politicians for not allowing the police to be rougher on protesters. The Sergeants Benevolent Association in New York City, which has attracted reprobation for doxxing NYC Mayor Bill de Blasio’s daughter Chiara, has also moved to a furious war footing. The Louisville Metro Police Union in Kentucky rallied around the killers of Breonna Taylor, as the officers involved haven’t been fired, let alone charged...Ben Sachs, a labor and industry professor at Harvard Law who recently launched a project to reform police union collective bargaining to end police abuses, understands the concerns of union leaders and others that a push to reform police union collective bargaining could endanger a broader subset of workers. “It is absolutely critical that any reforms remain tightly focused on the actual problem here, which is police violence. Any changes to police collective bargaining law should apply only to collective bargaining practices that directly implicate police violence. We can’t allow changes to police collective bargaining to become a stalking horse for those with a political agenda to undermine other public sector unions,” Sachs said. “At the same time, this is an immediate and enormous crisis. That has to be dealt with in a robust way. If that means that being open to some changes to police collective bargaining laws, it’s incumbent on us to be open to that.”

In March, as colleges and universities shuttered campuses under a nationwide lockdown, Strayer University updated its website with a simple message: “Great things can happen at home.” Capella University, owned by the same company as Strayer, has run ads promoting its flexibility in “uncertain times” and promising would-be transfer students that they can earn a bachelor’s degree in as little as a year. Online for-profit colleges like these have seen an opportunity to increase enrollment during the coronavirus pandemic. Their flexible programs may be newly attractive to the many workers who have lost their jobs, to college students whose campuses are closed, and to those now seeking to change careers. The colleges’ parent companies often have substantial cash reserves that they can pump into tuition discounts and marketing at a time when public universities and nonprofit colleges are seeing their budgets disintegrate...Eileen Connor, the legal director at the Project on Predatory Student Lending at Harvard Law School, said she was worried by the prospect of a resurgence for online, for-profit schools. “In times of economic downturn, that’s when the for-profit colleges start to thrive,” she said. Online colleges “have a running start, especially now, when there’s an economic downturn keeping people in their homes,” she added. “That is a perfect storm for the thing that they’re trying to do.” These schools often attract low-income, nontraditional college students who tend to have lower completion rates than those who enroll straight from high school and attend full time. Many have family pressures that interfere with study.

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.