Media Mentions

Jana Alexander was furloughed from her job at The Container Store when the pandemic began in early spring. With the economy reopening, the company recently invited her back to her old position at her store in Southlake, Texas. But there was a catch. Alexander would have to sign an arbitration agreement, giving up her right to sue The Container Store in court if she was mistreated. Her welcome-back letter made clear she had little choice in the matter if she wanted to draw a paycheck: “This job offer is contingent upon agreeing to our Mutual Agreement to Arbitrate which we will ask you to sign on your first day on the Payroll website.” Alexander, 61, refused to return to work because her husband has lung cancer and is at high risk of contracting the coronavirus. But she said her colleagues, many of them women in their 60s, would have little choice but to sign away their legal rights to avoid financial ruin...But Terri Gerstein, a labor law expert at Harvard Law School, said the situation at The Container Store underscores an absurd assumption in that ruling: that such agreements are mutually agreed upon and not coercive. “Arbitration agreements aren’t agreements in any sense of the word, because workers don’t have a choice about signing them: If you don’t sign, you can’t get the job,” Gerstein said in an email. “What options do workers have but to sign, especially now, in light of high unemployment rates, as well as the likelihood of losing unemployment insurance if they turn down a job.” She added, “Employers shouldn’t use ... the post-furlough return to work as an opportunity to impose unfair new conditions on workers.”

The private data mining company Palantir is best known for its work with law enforcement agencies, like Immigration and Customs Enforcement and local police departments, the intelligence community and the Department of Defense. It has received considerable criticism for helping the Trump administration track immigrants. But in recent months and with the debut of its stock on public markets approaching, Palantir has a new focus: tracking the fast-spreading coronavirus. According to U.S. procurement records reviewed by NBC News, Palantir has been awarded contracts worth more than $42 million with federal agencies on the pandemic response. That includes two contracts in April worth $24.9 million with the Department of Health and Human Services to build a new platform, HHS Protect, which will aid the White House coronavirus task force's efforts to track the spread of the virus. HHS awarded Palantir an additional $2 million in May...In April, Palantir’s president, Shyam Sankar, called the pandemic the new “driving thrust” of the company. Robert Greenwald, a professor and the director of the Center for Health Law and Policy Innovation at Harvard Law School, said that turning to a firm known for its work in deportation will discourage immigrants from getting the health care they need. “Companies like Palantir have made their choices and they have gone in a direction that does not make them appropriate for sensitive public health projects,” Greenwald said.

Acting Department of Homeland Security (DHS) Secretary Chad Wolf and one of his subordinates  appear to have admitted their agents have been making unconstitutional arrests of Black Lives Matter protesters in Portland during a series of public appearances. Here’s the exact comment. “Anytime that you attack a federal facility such as a courthouse in Portland that is a federal crime,” Wolf told Fox News host Martha MacCallum on Tuesday night. “Attacking federal police officers–law enforcement officers–which they have done for 52 nights in a row is a federal crime. So, the Department, because we don’t have that local support, that local law enforcement support, we are having to go out and proactively arrest individuals and we need to do that because we need to hold them accountable.” Anticipatory arrests, of course, are prohibited under the U.S. Constitution...Harvard Law Professor Andrew Crespo summed up the constitutional issues with the Kline-Wolf approach. “I don’t know if shining a laser at someone is a federal crime,” he wrote. “It doesn’t matter. The police do not have probable cause to arrest you just because you are standing near someone else who may have committed a crime.” The U.S. Supreme Court, Crespo noted, weighed in on this issue in a landmark Fourth Amendment case from 1979. In Ybarra v. Illinois, a 6-3 majority of justices concluded that a state statute allowing police to search people on the premises of a location where a valid search warrant is executed violates both the Fourth Amendment’s prohibition against unlawful searches and seizures as well as the 14th Amendment’s guarantee of Due Process...Eventually, Cline said, the protester was released “because [DHS] did not have what they needed.” “Translation: They did not have probable cause,” Crespo stated.

Judy Heumann remembers the day she went to register for kindergarten in 1952. She’d gotten dressed up and her mother had pulled her wheelchair up a flight of stairs before the principal intervened. Her disability, he said, meant she was not allowed to attend the school. Heumann had polio as a child, and it left her legs paralyzed and limited her use of her hands and arms. Throughout her time in the educational system, and after she graduated and became a teacher and activist, she had to fight for access at every turn...The ADA was designed to protect people with disabilities against discrimination and to ensure that they can participate fully in employment, state and local government services, public accommodations, transportation and telecommunications. The results today are powerful: most public buses have lifts for wheelchairs; disabled children attend school alongside their nondisabled peers; and employers are generally aware that people with disabilities have civil rights they cannot violate. But if the 61 million Americans with disabilities are now less likely to confront the same problems that Heumann did decades ago, their fight for true equality is far from over. “The ADA is ultimately a promise that has been tremendously impactful in some areas and has yet to be fulfilled in other areas,” says Ari Ne’eman, a senior research associate at the Harvard Law School Project on Disability and the co-founder of the Autistic Self Advocacy Network... Ne’eman, who is writing a book about the history of American disability advocacy, says the increase in people publicly embracing their disability as part of their identity has played an important role in shaping new public attitudes.

An article by Daphna Renan: The Supreme Court ended this term with two blockbuster decisions on the presidency and the separation of powers. Trump v. Mazars and Trump v. Vance both concern similar subpoenas, issued by congressional committees and the New York district attorney’s office, respectively, for information about the finances of Donald J. Trump, the individual (as well as his children and affiliated businesses). Of course, although these subpoenas concern personal finances and private business dealings, they pertain to the person who today serves as the nation’s chief executive. The opinions reveal a Supreme Court grappling with the implications of the president’s “two bodies”—the inseparable duality of the individual president and the institutional presidency. The president is both a human being, with human failings, and an institution co-equal with Congress and the Supreme Court. In an article, published this week in the Columbia Law Review, I argue that this duality is the defining ambiguity of the constitutional office of the president. Seemingly disparate debates on topics ranging from presidential impeachment, to litigation settlements involving the executive branch, to the legal status of presidential tweets, to the remedies available for presidential misconduct reflect this long-standing, ongoing ambivalence about the nature of the presidential office. The two-bodies prism can elucidate the controversy at the crux of the subpoena cases: Mazars is rooted in the principle that the two bodies are inextricable, their boundaries difficult to define. Vance cautions, however, that public law must not entirely collapse them. In this sense, the duality provides a normative justification for both opinions.

The pool of American workers on the front lines of the coronavirus pandemic is getting a lot bigger. The big picture: Just as grocery and delivery workers found themselves fighting a crisis they didn't sign up for back in March, teachers, hairstylists and temperature checkers are part of a new wave of workers who are now in harm's way as the pandemic rages on. "This is a new group of essential workers," says John Logan, a U.S. labor historian at San Francisco State University. "They're people who never thought they’d be putting their life on the line by going to work." By the numbers: There are already around 55 million Americans working front-line jobs — defined as jobs that require exposure to a large number of people who could potentially carry the virus. Now add to that millions of teachers, retail sales reps, nail techs and other professionals who have returned or will return to work in the coming weeks as their workplaces reopen. "With most of the country reopening — whether it's safe or not — workers in so many occupations are put in the untenable position of having to choose between being able to sustain their families or putting their health at risk," says Sharon Block, executive director of the labor and work-life program at Harvard Law School. Teachers are under tremendous pressure as some cities and states push forward on reopening schools. 1 in 4 teachers — nearly 1.5 million people — are at a heightened risk of serious illness if infected by the coronavirus, per a report from the Kaiser Family Foundation.

When Emma Mancha-Sumners saw her school district’s proposed schedule for remote learning this fall, she knew it wouldn’t work for her or her kids...Mancha-Sumners looked into forming a “pod” of families that could at least provide some socialization for her children, who haven’t seen their friends since schools closed in March. She co-created a Facebook group for local families seeking to set up pods, and quickly discovered that many parents were looking for learning pods, which would be run by teachers or tutors and allow families to navigate distance learning. Many families estimated they would each pay $700 or more per month for teachers...Parents are being forced to make difficult choices. Some are leaving their jobs and closing down their businesses. Others are spending thousands of dollars to make sure their children are safe and learning each day. And many more have no idea how they’ll cope with an impossible decision: work or care for their children. The situation is especially dire for single parents, low-income families and those without flexible jobs, who rely on in-person school so they can go to work each day...Experts say the lack of federal, state and district-led solutions for parents means families are on their own, and that will only exacerbate education gaps that already exist. “There’s always an equity issue in the United States, even in non-Covid times,” said Elizabeth Bartholet, professor of law at Harvard Law School and faculty director of Harvard’s Child Advocacy Program. “But now, when kids are at home, privileged parents are going to be able to hire tutors and teachers. They tend to have more flexible schedules, and they will be able to provide a better education for their children than less-privileged parents. Kids who are poor, and Black or Latino kids are disproportionately poor, are more at risk of not learning.”

An article by Noah Feldman: Having sent officers from the Department of Homeland Security to Portland, Oregon, President Donald Trump is now saying that he will send more federal agents to other U.S. cities to fight crime. His actions, already heavily criticized by elected officials in Oregon, raise serious constitutional questions. How and when may the president deploy armed federal officers across the country? What are the limits? And, what if anything, can states or citizens do about it? The president, as head of the executive branch, has the constitutional duty and authority to “take care” that the laws of the United States are faithfully executed. This includes sending federal officers to protect federal property and enforce federal law. Good examples aren’t hard to find. When President Barack Obama’s administration sent federal officials to confront Cliven Bundy in 2014, that was perfectly lawful and constitutional. When a citizen claims that the federal government does not own federal land, it can be appropriate for the government to demonstrate that it in fact does own that land. Similarly, although of much greater moral significance, President Dwight D. Eisenhower sent the 101st Airborne to enforce federal law and the Constitution by integrating the Little Rock schools in 1957. This was an extraordinary act, but entirely legitimate in light of the state of Arkansas’s open resistance to the authority of the U.S. Supreme Court. Most famously, President Abraham Lincoln sent federal troops to suppress the secession of the Confederate states based on the argument that he must enforce federal law and protect federal property, including Fort Sumter. Yet these executive rights and responsibilities are extremely different from what Trump is presently doing.

A podcast by Noah Feldman: Debo Adegbile, who twice defended the Voting Rights Act before the Supreme Court, discusses John Lewis’ legacy.

Harvard Law School Professor Nicholas Stephanopoulos and other Harvard faculty consider the massive logistical and political challenges facing states in November.

This past year, millions of families (mine among them) experienced remote learning and entertained the idea of home schooling for the first time. Some of these families are eager to send their kids back to school. Others will make do with remote learning this school year, and still others are certain to take up more seriously the idea of home schooling. When they do, they will discover two things. First, home schooling is already an attractive option for many American families, and it is the reality for an estimated 1.7 million children. Second, home schooling in America generally has become dangerously politicized and unregulated...Elizabeth Bartholet, faculty director of the Child Advocacy Program at Harvard Law School, published an 80-page paper in the Arizona Law Review this year titled "Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection," summarizing years of research and wide survey evidence in the field. Bartholet also planned to participate in an academic conference on the subject (later postponed because of COVID-19). Bartholet told me she was immediately inundated with many hundreds of angry and threatening messages and was the subject of a series of negative articles posted on the website of the Home School Legal Defense Association, or HSLDA, a home-schooling advocacy group with hyperconservative leanings founded in 1983, whose founder, Michael Farris, is closely allied with other religious right leaders. In a way, the abuse proved one of Bartholet's central theses: that much of home-schooling advocacy right now is in the hands of a small but belligerent minority who believe that parents have absolute rights over their children and that any form of regulation amounts, in the words of some home-schooling families, to "tyranny." Lawmakers have run into similar resistance.

President Donald Trump's powers to dispute the election results if Democratic candidate Joe Biden is victorious in November may hinge upon whether allies support such a challenge. Asked on Sunday, the president would not confirm whether or not he would accept the results of November's election. This has prompted backlash from Democratic lawmakers, with his behavior branded dictatorial, and calls for people to prepare to take action should he refuse to accept the results. Trump's remarks came after the president's frequent attacks on mail-in voting, which he has suggested—without evidence—could undermine November's outcome. Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, told Newsweek Trump's comments prompted him to "worry more than ever before that the 240-year history of peaceful successions of administrations might not hold this time and that the American experiment is in the gravest danger it has faced since the Civil War." Tribe suggested that if the results were certified by Congress, and all prior contests had been resolved, on January 6 that Trump would thereafter need to enlist allies "in order to exercise anything resembling real power." ...He bases this around the notion the president cannot run the executive branch without assistance, while others are barred from using its authorities at the behest of anyone other than the legitimate president—with the threat of criminal prosecution should they choose to. Tribe said while that offers some protection in that scenario, it does not prevent Trump posing challenges along the way.

The Trump administration has been consulting the former government lawyer who wrote the legal justification for waterboarding on how the president might try to rule by decree. John Yoo told the Guardian he has been talking to White House officials about his view that a recent supreme court ruling on immigration would allow Trump to issue executive orders on whether to apply existing federal laws...In a Fox News Sunday interview, Trump declared he would try to use that interpretation to try to force through decrees on healthcare, immigration and “various other plans” over the coming month. The White House consultations with Yoo were first reported by the Axios news website. Constitutional scholars and human rights activists have also pointed to the deployment of paramilitary federal forces against protesters in Portland as a sign that Trump is ready to use this broad interpretation of presidential powers as a means to suppress basic constitutional rights. “This is how it begins,” Laurence Tribe, a Harvard constitutional law professor, wrote on Twitter. “The dictatorial hunger for power is insatiable. If ever there was a time for peaceful civil disobedience, that time is upon us.” ...Constitutional scholars have rejected Yoo’s arguments as ignoring limits on the executive powers of the president imposed by the founders, who were determined to prevent the rise of a tyrant. Tribe called Yoo’s interpretation of the Daca ruling “indefensible”. He added: “I fear that this lawless administration will take full advantage of the fact that judicial wheels grind slowly and that it will be difficult to keep up with the many ways Trump, aided and abetted by Bill Barr as attorney general and Chad Wolf as acting head of homeland security, can usurp congressional powers and abridge fundamental rights in the immigration space in particular but also in matters of public health and safety.”

When Sebastian Thrun was starting Google’s self-driving car project in 2009, commercialising the technology was not on anyone’s mind...Back then, it made sense that autonomous driving was just a research project. Eleven years on, however, the industry still has little idea what to do with the technology, despite some big advances over the past decade. As the much-hyped, seven-year quest to develop a driverless Uber service has suffered several setbacks, the appetite is now switching beyond robotaxis in search of more profitable avenues...Investors are still interested in autonomy but the focus has shifted towards practical services such as grocery delivery, automated warehouse robots, and autonomous functions restricted to highways...Waymo is the only service to have removed safety drivers from the equation, in 2017, but only for the sunny, wide roads near Phoenix, Arizona. Just before the coronavirus outbreak, its ride-hailing service Waymo One was offering customers between 1,000 and 2,000 rides a week, with 5-10 per cent being driverless. Impressive as this may be, it underscores that an Uber-like conquering of cities has not been a plausible model. That does not mean robotaxis are dead per se, but the idea is now on life-support. Aside from fringe efforts, the robotaxi dream is now confined to those with the major financial firepower of a tech company or car giant that can spend many more years on the effort. Ashley Nunes, a Harvard researcher, says: “Bringing the tech to market will require fundamentally rethinking the concept by scaling back where and how the tech can be deployed and the types of returns investors can expect.”

What is the way forward for progressives in a time when it seems both centrism and authoritarianism are resurgent? What should be the character and scope of a national program that progressives in and outside the Democratic Party can and should embrace? There are many places to look for answers to these questions, and no doubt the answers will have many inspirations. One of the most incisive articulations of an American progressive alternative is that of Roberto Mangabeira Unger, a Harvard Law professor, philosopher, and former Brazilian politician. He has written over two dozen books addressing an unusual diversity of topics, including critical legal theory—which he helped develop—economics, philosophy, and religion. Given this range, it would be unfair to reduce Unger’s work to one core idea. But perhaps the major theme of his work is summed up in his argument that “society is made and imagined, that it is a human artifact rather than the expression of an underlying natural order.” ...The Nation recently spoke with Unger about his proposal for an alternative progressive track for American politics. Along the way, we discussed racial injustice in the United States, Donald Trump’s election, democratizing new technologies, the future of education, and progressive taxation. Of pressing importance is the topic of structural economic and political change, and in turn, whether Unger’s vision is impractical. This conversation has been edited for clarity and length.

The St. Louis couple who emerged from their mansion in a gated community and aimed weapons at protesters marching past them last month were each charged Monday with one felony count of unlawful use of a weapon. Lawyers Mark McCloskey, 61, and Patricia McCloskey, 63, have said they were merely defending their home on a private street in an upscale neighborhood from a crowd that was marching to Mayor Lyda Krewson’s house to protest racial injustice. Video and photographs showing Mark McCloskey wielding a rifle and Patricia McCloskey aiming a pistol at the marchers created a firestorm of controversy between those who felt the couple was legally defending their home and those who felt they were menacing peaceful protesters...The McCloskeys and their supporters have said that the “castle doctrine” in Missouri law, and elsewhere, empowers a homeowner to stand their ground and use deadly force when threatened. But Harvard Law School Professor Ronald S. Sullivan Jr. said Friday that “the law is crystal clear in Missouri, that a reasonableness argument is necessary for a defendant to take advantage of the Castle doctrine. The defendant has to be reasonably afraid of being in imminent danger.” Sullivan said that despite the McCloskeys’ claim that the entire Portland Place neighborhood was private property, and the protesters were immediately trespassing, “the castle doctrine would still be unavailable. The doctrine removes one’s duty to retreat. But they could only use deadly force if they reasonably felt they were in imminent danger. Based on the video evidence, that’s a very difficult argument to make,” because the protesters were unarmed and did not move toward the McCloskey residence, Sullivan said. “Otherwise,” Sullivan said, “the castle doctrine would swallow up all of the existing law and we’d have a ‘Wild Wild West’ out there.”

If Democrat Joe Biden defeats President Trump this November, his EPA will have a blank slate for writing climate rules. Because the Trump administration spent 3 ½ years demolishing its predecessor's Climate Action Plan, Biden's team would have an opening to update rules for carbon, methane and hydrofluorocarbons that would exceed their Obama-era counterparts or be more tailored to the political, judicial and economic realities of the 2020s. To be sure, a departing Trump EPA would leave finalized rules for power plant carbon, vehicle fuel economy, and oil and gas development, among other things, but most of those regulations haven't faced court reviews, allowing an incoming administration to ask that they be returned to the agency. That request — if granted — would clear the path for a Biden EPA to write new rules to go with the former vice president's promise of rejoining the Paris Agreement and the global effort to contain global warming...Meanwhile, the Trump administration has succeeded in moving the courts to the right, up to and including the Supreme Court. Justice Anthony Kennedy, the swing vote who retired from the court two years ago, usually sided with the court's liberal members on environmental cases like Massachusetts v. EPA, which established that EPA has the authority and obligation to address climate change under the Clean Air Act. The two justices Trump has nominated don't have that reputation...Richard Lazarus, a Harvard Law School professor and author of "The Rule of Five," which chronicles Massachusetts vs. EPA, said the agency under Biden would be aggressive. But he agreed that a conservative Supreme Court would be a barrier. "They will try to do more on power plants under a less ambitious legal theory," he predicted, adding that that would probably mean on-site emissions reductions.

An article by Cass Sunstein: Some conservative legal thinkers speak of a “Lost Constitution” or “Constitution in Exile.” By that they mean the Constitution as it was understood before President Franklin D. Roosevelt’s New Deal helped form the modern regulatory state. Their Constitution in Exile would invalidate key parts of contemporary government. Some conservatives want to revive the long-dead “nondelegation doctrine,” which was once taken to forbid Congress from granting broad discretion to regulatory agencies. The Supreme Court made a strong movement in the direction of the Constitution in Exile in its most recent term, when it ruled that the Consumer Financial Protection Bureau may not be made independent of the president. The court stopped well short of upending the regulatory state. But it was just a preliminary skirmish. Bigger battles are brewing. Those who want to defend modern government — including Democrats if they regain power in November — will need to think hard about appropriate reforms if the Supreme Court begins to invalidate larger features of the U.S. government as it exists today. A Supreme Court bent on resuscitating the nondelegation doctrine would put important parts of the Clean Air Act, the Occupational Safety and Health Act and the National Traffic and Motor Vehicle Safety Act in jeopardy. Those who believe in the Constitution in Exile also have trouble with the idea of independent agencies, such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission and the Federal Trade Commission. The president has limited control over the heads of such agencies; he cannot fire them simply because that’s what he wants to do.

Donald Trump has handled the pandemic arguably worse than any world leader and has lied about it serially. No one can dispute that. The question though is, can Trump be criminally charged with manslaughter for intentionally failing to warn Americans about the known threats of COVID-19—and worse, lying about them? As a lawyer, I believe the answer should be yes—at least if it can be proven that Trump knowingly misled Americans about the dangers of COVID-19 because he believed it helped his re-election efforts, and Americans relied on those lies to the detriment of their health/lives...Now to be clear, Trump being successfully prosecuted for lying is still a challenge, as many well-known legal experts explained. Laurence H. Tribe, the famed professor at Harvard Law School, had harsh words for Trump’s actions saying that, “Trump is almost certainly morally responsible for tens of thousands of coronavirus deaths that would not have occurred but for his recklessly misleading public pronouncements and his grossly negligent failures to act rationally on the basis of the medical evidence available to him.” But with that said, Tribe added, “proving that Trump caused these deaths beyond a reasonable doubt in a criminal trial would be almost impossible.”

An article by Laurence Tribe: In 1971, seven Asian elephants were captured from the wild, imported to California, and sold for $800 each to a safari park. As if to reinforce the indignity of taking these magnificent beings from their natural habitats and depriving them of lifelong relationships with members of their herd, their captors named them after Snow White’s seven dwarves. Today, only four of these elephants survive. One of them, ironically named Happy, has been imprisoned for the last 40 years at the Bronx Zoo. She is now 49 and lives in a small, barren space that experts have said cannot meet the needs of any elephant. Until 2002, the zoo also imprisoned Grumpy, euthanizing her after two other elephants attacked her. Happy was the first elephant to demonstrate self-awareness via the well-established mirror self-recognition test. In late 2018, she also became the first elephant to be the subject of a habeas corpus hearing. Happy’s case, brought by the Nonhuman Rights Project, will soon come before an appellate court in New York City. She has the chance to reclaim her dignity through recognition of her legal right to liberty and release to an elephant sanctuary. Today, Happy is considered a “thing” with no rights that we as humans have any legal obligation to respect. That needs to change. The just course is for courts to recognize Happy as a rightsholder (in legalese, a person) and order her release to an environment suited to her needs. That is why this week I submitted an amicus brief in support of Happy’s petition to be recognized as a holder of rights under the law.

Brighton graduate Toby Merrill was named to Time Magazine's list of the "100 Next." That's because Merrill has been a leader in the fight against predatory for-profit colleges and institutions. As student debt piled past one trillion dollars, Merrill launched a plan to combat what she calls the "worst-of-the-worst student debt." Merrill is the founder and director of Harvard Law School's Project on Predatory Student Lending. Her team represents thousands of former students who have been fleeced and lied to, often ending up with piles of debt and worthless degrees. One of her most recent cases named Education Secretary Betsy DeVos as a defendant. We discuss the plight of student loan debt, the worst offenders, and why the industry is still so profitable. Our guest: Toby Merrill, founder and director of Harvard Law School's Project on Predatory Student Lending.