Media Mentions

Judge Emmet G. Sullivan, who is presiding over the case against President Trump’s former national security adviser Michael T. Flynn, has appointed a former mafia prosecutor and retired federal judge, John Gleeson, to argue against Attorney General William P. Barr’s attempt to drop the case. The case against Mr. Flynn was developed by the F.B.I. agents working on the Trump-Russia investigation, brought by the office of the former special counsel, Robert S. Mueller III, and is now being attacked by Mr. Barr as illegitimate. It has raised a complex stew of issues for Judge Sullivan to sort through...Is Mr. Barr’s attempt to drop the case unusual? Highly unusual. Legal experts have struggled to identify any precedent for the Justice Department dropping such a case after obtaining a guilty plea, and more than 2,300 department veterans accused Mr. Barr in an open letter of subverting a justice system that is supposed to treat everyone equally. “I would be astonished if the Department of Justice made these arguments in any other case in the country,” said Nancy Gertner, a former federal judge who now teaches at Harvard Law School. “This is the Flynn rule.” ...Did the F.B.I. set out to see whether Mr. Flynn would lie? There are reasons to believe agents did so — raising the question of whether that would be an abuse, as Mr. Flynn’s supporters maintain, or a normal investigative step...Hundreds of people every year are charged and convicted of lying to federal authorities, and in the courtroom, entrapment defenses rarely work. Ronald S. Sullivan Jr., a former federal defense lawyer who teaches criminal law at Harvard Law School, said that he objected to the way the F.B.I. treated criminal suspects, but that if Mr. Flynn’s case was tossed out on that basis, legions of other cases should be, too. “The F.B.I. did what the F.B.I. normally does,” he said. “General Flynn is getting a form of special justice that is repugnant to the very foundation on which our justice system rests.”

Nationally renowned child welfare expert Elizabeth Bartholet wants to see a radical transformation in homeschooling. In an article in the Arizona Law Review, “Homeschooling: Parent Rights Absolutism vs. Child Rights to Education and Protection,” she argues that the lack of regulation in the homeschooling system poses a threat to children and society. The Gazette sat down with Bartholet, the Morris Wasserstein Public Interest Professor of Law and faculty director of the Child Advocacy Program at Harvard Law School (HLS), to talk about the problems.

Antibody tests and “immunity passports” were supposed to be the great hope for safely reopening the economy. The problem is many of the more than 120 tests on the market are inaccurate. And scientists don’t really yet understand how much immunity antibodies confer or how long it lasts. But these tests — and the apps to promote them — are gaining traction among businesses and consumers eager to know who has been exposed to the virus, raising the risk that people will be relying on faulty results to promote their immunity from the coronavirus... “The appeal is obvious for employers. They would have no outbreak in their workplace, and for the more public facing businesses, it can be a selling point. ‘Our workers are immune, you can come to our restaurant,‘” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. Like other legal experts, privacy advocates and bioethicists, Shachar said using “passports” or apps that are unregulated, unreliable and rife with errors to decide who can work, travel or eat out raises troubling questions about privacy, discrimination, risk and fairness...Harvard’s Shachar said an ethical framework would have to take access to testing into account; they can't only be for the well-to-do, or the well-connected. Insurers are resisting covering all of the tests for free — and the economic crash has left millions unemployed and uninsured. “If tests are going to be used to make broad decisions about work, they have to be widely available,” she said. “It can’t be ‘My dad knows a guy who knows a guy who knows a guy.’ It has to be available, no cost to employees." “If it’s not accessible to the grocery worker, it’s not ethical,” Shachar added.

In April, a pork plant worker and a labor group filed a lawsuit against the worker’s employer, Smithfield Foods, for failing to keep workers, and the Missouri town where the plant was based, safe. The complaint alleged Smithfield was a “public nuisance” and asked not for money, but for safer working conditions. Although the lawsuit was eventually thrown out, it got results: Smithfield put up barriers between workers and allowed workers more opportunities to wash their hands. A new report from Harvard Law School and the National Employment Law Project suggests that cities and states could use this tactic, and others, to pressure employers to keep workers safe on the job — a pressing need as the economy slowly reopens despite the still-present threat of infection...The Occupational Health and Safety Administration (OSHA), the federal agency in charge of protecting workers, has largely left workplace safety up to employers...But the report, written by workplace legal experts, explains that there are measures that cities and states can take to protect workers in the absence of a proactive, fully staffed OSHA. “This is a moment for government to use whatever powers they can to protect working people,” said Terri Gerstein, a lawyer who runs a project on local enforcement at the Harvard Law School Labor and Worklife Program and one of the authors of the report. If business and government leaders are worried about the economic impact, the most important thing to do is make sure workers are healthy and safe, she said, as continued outbreaks will just prolong the current economic standstill.

These are unprecedented and challenging times. As the COVID-19 pandemic continues taking its toll, we mourn the loss of thousands of our fellow citizens while applauding the bravery and sacrifice of countless nurses, doctors, orderlies, EMT personnel, and other first responders — along with our neighbors stocking grocery shelves and working check-out lines in supermarkets throughout the country. COVID-19 has changed our world, and many of our industries will never be the same — including construction...In anticipation of the coronavirus taking hold, earlier this year our Northeast Carpenters Training Fund joined forces with the United Brotherhood of Carpenters International Training Center and established a COVID-19 Preparedness training component which has been praised by Michigan Gov. Gretchen Whitmer and is being used in other states, including Michigan and California...By demanding higher health and safety standards for our members up front, we were able to define the scenario under which many essential job sites remained open. As more and more construction sites open, our on-site union representatives continue to partner with contractors and management to ensure jobs sites are safe and run according to the latest directives from the Center for Disease Control. Harvard University’s Labor and Worklife Program fellow Mark Erlich said it best recently: “being a union member has been enormously beneficial in the past few weeks.” Erlich predicts the “appeal of unions will be stronger than ever going forward.”

The raging public debate over statewide coronavirus lockdowns is running parallel to a series of legal battles in state capitals — and the lockdown skeptics got a big boost this week. The decision by Wisconsin’s Supreme Court on Wednesday to toss Gov. Tony Evers’ statewide shelter-in-place order set off a scramble in cities across the state to impose their own local restrictions. Elsewhere, bars and restaurants shut down by the order declared themselves open for business. And legal challenges are continuing to pile-up across the country — even as governors who extend their state’s shelter-in-place orders begin peeling back some restrictions. The plaintiffs are business owners, aggrieved private citizens, pastors and in some cases, state legislators and legislatures. The targets? Almost always Democratic governors or their top health appointees...Among the chief questions most courts will examine are whether states’ orders have a compelling government interest and whether the order is narrowly tailored in order to achieve that interest, said Noah Feldman, a law professor at Harvard. Feldman slammed the Wisconsin ruling, calling it a political intervention by the conservative majority on the state’s Supreme Court and arguing the outcome in that case was likely an aberration, based on technicalities while sidestepping the statutory matter at hand.

During the 19th-century emancipation movement, some of the most important voices were those of Black abolitionists. “This was especially true of those who had experienced slavery,” Roy E. Finkenbine told NPR...Those who have directly experienced the prison system are likewise championing the prison abolition movement. I have been one of these directly impacted former prisoners who have been centered at such events.  I don’t attend such forums to receive financial compensation, but rather to do what I can to help end mass incarceration. That said, former prisoners often leave these events without receiving any remuneration — not even for transportation — and they return to their marginalized, economically insecure lives until called forth again by their liberal allies — just like many formerly enslaved people...As Alan Jenkins, professor of practice at Harvard Law School, told me, “We all have a responsibility to understand and accommodate the circumstances of formerly incarcerated leaders.” Since I cannot wait for others to realize they must offer understanding and accommodation, I’ve got my business license for consulting and website up and running as Webb recommended. I hope former prisoners continue to use their voices to mobilize audiences against mass incarceration—and I hope the institutions and organizations that offer them a platform will begin offering them equitable remuneration, too.

The novel coronavirus (COVID-19) has upended nearly every aspect of modern society, but especially the food system. Farmers are being forced to discard unprecedented amounts of food surplus because of the closure of schools, restaurants and hotels. And, because of the complex logistics of the food supply chain, diverting food supply away from wholesalers directly into the hands of consumers can be costly. Experts such as Dana Gunders of ReFED are concerned that more food waste will be produced in 2020 than in previous years. Despite these challenges, organizations around the world are working to reduce food waste...Directed by Emily Broad Leib, Harvard Law School's Food Law and Policy Clinic (FLPC) is leading an emergency COVID-19 response effort to inform the public the pandemic’s impact on food systems. The response includes informational resources analyzing opportunities for low-cost home food delivery. It also includes policy briefings urging Congress and the USDA to take legislative action to mitigate the pandemic’s burden on the food system and its workers.

On March 14th, Roslyn Crouch, a mother of twelve, left her house in New Orleans to stock up on toilet paper and canned goods, and didn’t return...Crouch failed to stop at a stop sign in Jefferson Parish and was pulled over by the police. She was then arrested for a string of petty crimes, including driving without proper registration and with a stolen license plate that police valued at twenty-five dollars. The most serious charge resulted from a nine-year-old warrant for possession of marijuana...In late March, Governor John Bel Edwards announced that Louisiana had the fastest-growing coronavirus infection rate in the world. According to state reports at the end of last year, Louisiana also had the highest incarceration rate in the country. The pandemic posed an immediate threat in the state’s jails, where cells are crowded and poorly sanitized, and people frequently cycle in and out of custody...Tae worried about her mother’s transfer to Orleans Parish, and eventually got in touch with Thomas Frampton, a public-interest lawyer and a lecturer at Harvard Law School. Ordinarily, Frampton would have been on campus, teaching Legal Research and Writing to first-year students. But his class now met on Zoom, and he was in New Orleans, where he lives part time. Frampton started looking through court records and found that Crouch had a four-year-old material-witness warrant out for her arrest in Orleans Parish...Frampton found that, in 2016, an Orleans Parish prosecutor had requested a material-witness warrant for Crouch, to compel her testimony in the trial of a man accused of shooting one of her friends. The defendant was acquitted, rendering the warrant moot. Still, the D.A.’s office pressed a judge to keep it open.

Just about every morning since America went on coronavirus lockdown, Suzanne McMinn has risen at 2 a.m. to bake in her home kitchen. She’s working there up to 15 hours a day, seven days a week. But she’s not cooking for herself, mostly. She’s cranking out dozens of orders daily for people all over the U.S.—people who found her on Etsy. Yes, she sells bread on the site best known for knitted hats and topical greeting cards and, lately, hand-sewn masks...Far from the Etsy corporate headquarters, other changes have swept across the U.S., making home-baked goods more commercially viable. From 2013 to 2018, 10 states passed so-called “cottage food laws” allowing home bakers to legally sell their goods in a variety of venues, including online, says Emily Broad Leib, faculty director of the Harvard Law School Food Law and Policy Clinic. Many other states amended existing food laws. While this wave of legislation was driven by, and has enabled, a grass-roots movement of professional home bakers who have found a natural home on Etsy, the company itself hasn’t done much to encourage this category above others. Those who have been selling baked goods on the site for years feel like the lack of promotion of Etsy’s many bakers shows the company’s interests lie elsewhere...Nevertheless, the category has exploded.

An article by Cass Sunstein: Are most members of the Supreme Court violating their oath of office? Might Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan be committing impeachable offenses? Did some of history’s most celebrated justices — Oliver Wendell Holmes, Louis Brandeis, Robert Jackson, Earl Warren, Thurgood Marshall, William Rehnquist and Sandra Day O’Connor — also act inconsistently with their oath of office? Some prominent law professors at distinguished institutions are making precisely that argument. It’s unpleasant stuff, the academic equivalent of “lock her up!” But like that howl of rage, the new argument is resonating in influential circles. Before long, it will probably enter into public debates. To understand what’s afoot, we need to explore a much-disputed question: How should the Supreme Court interpret the U.S. Constitution? Many justices think that the founding document contains what Justice Felix Frankfurter called “majestic generalities,” phrases like freedom of speech, equal protection, unreasonable searches and seizures, due process of law...By contrast, some justices, including Clarence Thomas and the late Antonin Scalia, are “originalists.” They believe that the Constitution must be interpreted to fit with its “original public meaning” — that is, the meaning that members of the public would have given to it at the time of ratification. The debates between originalists and their adversaries have become sophisticated and elaborate.

Seven weeks after Congress unleashed more than $2 trillion to deal with the coronavirus crisis, an oversight commission intended to keep track of how the money is spent remains without a leader. Four of the five members of the Congressional Oversight Commission have been appointed, but House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Mitch McConnell, R-Ky., have not agreed on a chair, leaving the commission rudderless as the federal government pumps unprecedented sums into the economy. Without a leader, the panel's remaining members can still do some oversight work, but cannot hire staff or set up office space. The four members have not met as a group since the economic rescue law was passed by Congress and signed by President Donald Trump in late March. “If the commission is not functioning — which it is not — then there is no oversight” on a huge part of the economic rescue law, said John Coates, a professor of law and economics at Harvard Law School.

An article by Jeannie Suk Gersen: This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault. Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, tweeted that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, wrote, “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi called the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.” It was unclear, however, precisely what aspects of the regulations were so extreme and alarming.

A podcast by Noah Feldman: In this bonus episode, Boaz Weinstein, founder of the hedge fund Saba Capital, tells the story of how the bond market broke for a few days in March.

In early March, just as Covid-19 was spreading alarm in the west, the US sporting goods retailer Modell’s filed for bankruptcy. The company has long been blighted with excess debt and poor sales, and was overdue for a shakeout. What happened next was odd — and symbolic. In the last two months, courts have repeatedly frozen Modell’s bankruptcy process, citing the pandemic. The company is now a zombie, neither dead nor alive. Its status could soon proliferate across corporate America, further confusing the economic outlook...Rating agencies project that default rates among companies whose debt they consider risky will hit or exceed the 15 per cent level seen after the 2008 crisis. Law professors Benjamin Iverson and Mark Roe predict “the biggest surge in bankruptcies” that the US court system has ever seen...The fifth — and biggest — problem is a shortage of judges. Profs Iverson and Roe calculate that if bankruptcies surge to 2008 levels, “a US bankruptcy judge would have to work close to 50 hours per week to keep up with the increased caseload”. However they fear that bankruptcy rates could actually be double the 2008 level. “No one can expect bankruptcy judges to work 100 hours per week,” they lament. Not even, presumably, with Zoom.

On this week's episode of Lawfare's Arbiters of Truth series on disinformation, Evelyn Douek spoke with Craig Silverman, the media editor for Buzzfeed News and one of the leading journalists covering the disinformation beat. Craig is credited with coining the phrase “Fake News.” Evelyn spoke with him about how he feels about that, especially now that the phrase has taken on a life of its own. They also talked about a book Craig edited, the second edition of the "Verification Handbook,” available online now, that equips journalists with the tools they need to verify the things they see online. Journalism and reporting on disinformation has never been so important—but the internet has never been so chaotic, and journalists are not only observers of disinformation, but also targets of it.

An article by Noah Feldman: In a fascinating, bizarre, only-in-America moment, a partisan majority of the Wisconsin Supreme Court has struck down the stay-at-home order issued by the Wisconsin Department of Health Services. There is no appeal to the U.S. Supreme Court from the state court’s 4-3 decision, because it’s based entirely on Wisconsin law. Although it probably won’t be replicated in other states, the decision tells you a lot about the state of judicial politics in the U.S. today — and how those politics interact with the developing partisan politics of the coronavirus pandemic. The majority opinion is lawyerly — not in the admiring sense of the word favored only by lawyers, but in the pejorative sense of the term favored by ordinary human beings. To simplify only slightly, the Wisconsin DHS issued its directive to stay at home in the form of what it called an “emergency order.” The state court held that it wasn’t actually an “order” under Wisconsin law, but a “rule.” According to the court, what made the emergency order into a rule was that it applied to the entire state. Orders can be issued on an emergency basis by the Wisconsin DHS. Rules, however, need to go through a somewhat lengthy administrative process of information gathering and public discussion before they can be enacted. Needless to say, the emergency order didn’t go through that process, which would have taken time.

An article by Lawrence Lessig: At any time, arguing any case before the US Supreme Court is challenging. The justices are among the best lawyers in the nation. They do their homework. They are prepared. An argument quickly focuses on the weak points on both sides. The whole purpose of the argument is to give the court a chance to work through the implications of each side. And for practically the whole of the Supreme Court’s history, that exchange has happened in person, with justices and counsel given the chance to see each other face to face and to read in the eyes and the body language of the justices what’s been heard and understood. The coronavirus pandemic has changed all that. For the past two weeks, the Supreme Court has heard arguments by telephone. Not Zoom, not Google Meet, by telephone. The format is different, and much more strictly formatted. The lawyer on each side opens with a two-minute statement; each justice gets a couple of minutes of questions. The questions go in order of seniority. That at least makes it clear who is speaking and when. It is difficult to say whether these changes make the process better or worse. In some ways, it’s clearly better: Justices are encouraged to participate, and more of them do. They come to the argument prepared with questions. They’ve learned how to present their questions concisely because time limits are severe. The format is the format of a congressional hearing, yet the justices get less time for their questions than a congressional representative.

President Trump’s decision not to divest himself of his businesses, in particular his foreign holdings or holdings that derive income from foreign governments, was a fateful error that flew in the face of precedent, clean government and the Constitution. Now, a federal appeals court has held he cannot derive income from foreign governments that frequent his businesses. The full U.S. Court of Appeals for the 4th Circuit, sitting en banc on Thursday, overruled a decision from a panel on the same court that prevented a case brought by Maryland and the District of Columbia from proceeding...In any event, “The decision of the full federal circuit court for the 4h Circuit is an important landmark on the long road to enforcing the Constitution’s emoluments clauses — its core protections against the corrupt commingling of personal financial ventures with public service at the highest levels of our government — against the president who has violated those clauses in a more blatant and dangerous way than any other chief executive in our nation’s history,” says constitutional scholar Laurence Tribe. He observes, “We can’t realistically expect a decision by that court until after the current Trump term is over, however, and if Trump is voted out of office this November and becomes a private citizen next January, it’s conceivable that the case will become moot.” If moot, “What Judge Diana Motz wrote for the 4th Circuit majority in this major case might well stand as the last authoritative word on the meaning and importance of the emoluments clauses, which future presidents will hopefully heed in a way this president never has.”

On Monday, John Gleeson, a retired U.S. district judge for the Eastern District of New York and former chief of the Criminal Division in that U.S. Attorney’s Office, wrote an op-ed in the pages of The Post with two other former Justice Department officials to object to Attorney General William P. Barr’s move to dismiss the case against former national security adviser Michael Flynn despite Flynn’s guilty plea to charges of lying to the FBI and despite the court’s previous ruling that the lies were “material.” ...Several points stand out in this highly unusual case. First, Sullivan is signaling to the Justice Department (especially to career lawyers) that he is not going to let it off the hook when it does President Trump’s bidding...Second, Barr’s attempt to dismiss the case is not a slam dunk. Far from it...Third, Gleeson is a wise pick, which means trouble for the Justice Department lawyers. Constitutional scholar Laurence Tribe — who said, “Retired U.S. District Court Judge John Gleeson is a strong choice for the task assigned to him by Judge [Emmet] Sullivan” — and multiple former prosecutors with whom I spoke attest to Gleeson’s skills as a prosecutor and his integrity. His interest here is in preventing the sort of perversion of the courts that Barr cavalierly undertakes in service to Trump, whom Barr wrongly believes is his client. (The American people are his client.)

In this Law Technology Now episode with host Ralph Baxter, Ralph welcomes Heidi Gardner to talk about her research into collaboration and her work furthering the concept of Smart Collaboration. Heidi defines the meaning of Smart Collaboration, and gives her thoughts on the impacts COVID-19 is having on collaboration throughout the industry. She also discusses her time at Harvard Law School, how she developed a passion for studying collaboration, and why she’s devoted her career to improving how we work together. Heidi Gardner is the distinguished fellow & lecturer on law at Harvard Law School.