Media Mentions

A podcast by Noah Feldman: Bill McKibben, who was one of the first people to warn us about climate change more than 30 years ago with his book "The End Of Nature," discusses what COVID-19 and climate change have in common.

Wildcat strikes, walkouts and protests over working conditions have erupted across the US throughout the coronavirus pandemic as “essential” workers have demanded better pay and safer working conditions. Labor leaders are hoping the protests can lead to permanent change. Norma Kennedy, an employee at an American Apparel clothing plant is one of those people. Kennedy along with dozens of other workers walked off her job in Selma, Alabama, on 23 April after two workers tested positive for coronavirus. The plant has remained open during the pandemic to manufacture face masks for a US army contract...Working conditions, low pay and lack of safety protections have triggered protests throughout the pandemic as workers across various industries, including food service, meat processing, retail, manufacturing, transportation and healthcare have come together to protest about issues, many of which were apparent before the coronavirus...Uber and American Apparel did not respond to multiple requests for comment. Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, said it was too early to tell if these worker actions around the US will have a lasting impact. “These walkouts show that essential workers don’t want to be treated any more as if they were disposable. They are demanding a voice in how their companies respond to the pandemic. Having a voice is a life-and-death matter now more than ever,” said Block. “Success will be a matter of whether consumers and policymakers will be inspired by these workers’ courage.”

A retired federal judge appointed to oppose the Justice Department’s bid to dismiss former national security adviser Michael Flynn’s guilty plea to lying to the FBI on Monday requested a hearing for oral arguments after he briefs the court. The request for a hearing sets the stage for a pitched legal and political battle triggered by Attorney General William P. Barr’s April 30 move to undo the conviction of the highest-ranking Trump adviser convicted in special counsel Robert S. Mueller III’s Russia investigation...In a 34-page friend-of-the-court brief organized by attorneys with the nonpartisan, nonprofit profit Protect Democracy and Harvard Law School professor Andrew Manuel Crespo, former prosecutors argued Supreme Court precedent gives Sullivan authority to undertake “a searching review” of Flynn’s case and to “protect the public interest in the evenhanded enforcement of our laws.” “Our democracy is safe only when the enormous power of federal law enforcement is applied equally to all citizens based on facts and the law, rather than the political whims of a particular president,” the group wrote. “President Trump and Attorney General Barr have flouted these principles by seeking to dismiss the prosecution of Michael Flynn for what appear to be partisan political reasons.”

An article by Andrew Crespo, Laura Londoño Pardo '21, Nathaniel Sobel '20, and Kristy Parker: In the wake of Attorney General William Barr’s unprecedented decision to drop the Department of Justice’s years-long prosecution of former Trump national security advisor Michael Flynn, many are asking: Is this the end of the case? Two recent orders issued by Judge Emmet Sullivan, the judge presiding over Flynn’s prosecution, make clear the answer is no...Given the unique circumstances of this case—including the nature of Flynn’s actions, the Justice Department’s remarkable reversal, and the facially implausible arguments the department has offered to support that reversal—Judge Sullivan’s obligation to conduct a thorough inquiry into the government’s decision is of the utmost importance. Assisted by Judge Gleeson, he should conduct an evidentiary hearing into the circumstances surrounding the government’s change of heart. And if that hearing confirms what the already available public record seems to show, Judge Sullivan should reject the government’s motion and proceed to exercise the judiciary’s core task at the end of every criminal case in which the defendant has already pleaded guilty: impose a sentence.

An article by Monica Cannon-Grant and David Harris: As the death toll mounts daily from COVID-19, so do the headlines and data documenting its disparate impact on communities of color, especially black people, immigrants, native people, poor people, and those living at the intersections of these identities. The impact of COVID-19 tells a tale of the “web of disadvantage” spun from decades of disinvestment in, and disregard for, poor communities of color. Structural racism is the pandemic; COVID-19’s disparate impact is just a symptom of a long-festering and deadly virus. The disparities and injustice being exposed and underscored by the unequal spread of the novel coronavirus are no revelation. Our people have been living through the pandemic of racism for centuries—too often ignored or unseen as many enjoyed health and prosperity, now suddenly threatened. We won’t dwell on the reasons for the disparities: poverty-stricken communities lack access to adequate personal protective equipment; poor communities of color are overburdened with preexisting social conditions of air pollution and environmental toxicity and food deserts and inequities in healthcare; social distancing is a privilege denied to “black and Latino workers  overrepresented among the essential, the unemployed, and the dead.” In recent weeks as we read about the surge, flattening the curve, protests over supposed infringement of rights, the threat to the economy, and additional billions in relief, we’ve seen more of the same on the streets of Boston. Our people are hurting. Our people are dying.

Jam made with bacon scraps; fish jerky that turns unwanted fish into something delicious; granola bars and snack puffs crafted from spent brewing grams. These are just a few examples of how entrepreneurial ingenuity is transforming food byproducts and scraps into novel and often very nutritious products for human consumption, creating new sources of protein, other nutrients and fiber in the process—and keeping it all out of landfills. “Upcycling,” the new term of art, is one way to reduce reduce food waste and help the environment. But until now, there hasn't been a single standard definition of upcycling, even as the number of startups tackling food waste grows and consumers show more interest in buying products made with upcycled ingredients. Today, May 19, a task force comprised of food industry players, academic researchers an1d nonprofits is unveiling the first formal definition of the term upcycling. The group says the adoption of a single term and definition by the industry will lead to a powerful new product category that will encourage both the food industry and consumers to embrace products with upcycled ingredients...Another task force member, Emily Broad Leib, clinical professor of law, director of the Harvard Law School Food Law and Policy Clinic, and deputy director of the Harvard Law School Center for Health Law and Policy Innovation, said in a statement that scaling up the use of upcycled foods would help make the food supply chain more efficient and resilient. “This upcycled foods definition serves as a strong starting place to help businesses, consumers, and other users align around a common meaning and usage of the term."

In a pair of recent podcasts, Rid joined members of the Brookings community to discuss his new book, "Active Measures: The Secret History of Disinformation and Political Warfare." First up, Rid chats with Harvard Law School Professor Jack L. Goldsmith about the early history of disinformation through the 1980s.

An article by Laurence Tribe: Heraclitus famously said that a man's character is his fate. So too with a presidency. A president's character is inextricably linked to his administration's fate. And one of this president's most characteristic personal failings has begun to manifest itself in his administration's legal arguments. I refer to President Donald Trump's pathological reliance on "I'm rubber, you're glue" thinking—psychiatric professionals call it "projection"—to deflect attacks against him back onto his critics. This president accuses all his adversaries, real and imagined, of the very malignancies of which he is guilty. He did it with the presidential debates, quickly and childishly turning Secretary Hillary Clinton's accusation that he was a puppet of Russian President Vladimir Putin back onto her ("No puppet! No puppet! You're the puppet!"). He did it with race, accusing the four Democratic congresswomen who called out his racism of themselves being racist. And he did it with impeachment, railing for the impeachment of, among others, Speaker Nancy Pelosi, Chairman Adam Schiff and Senator Mitt Romney. Trump and his apologists are back at it again with Michael Flynn. They're offering the same "I'm rubber, you're glue" reasoning, this time covered in the thin veneer of legal argument. They accuse U.S. District Court Judge Emmet G. Sullivan, who presided over the Flynn trial and is poised to sentence Flynn for his federal crimes, of violating our constitutional separation of powers, for doing no more than taking entirely lawful and well-precedented steps to preserve the operations of the judicial branch. But in the end, it is Trump and Attorney General William Barr who are violating the separation of powers by taking lawless and unprecedented steps to undermine the judicial process.

An article by Roberto Tallarita: A popular Internet meme from recent weeks depicts the following scene in the style of an old tarot card. A screaming woman is being sacrificed to a sullen Sun God, her heart ripped out of her chest and offered to the deity. The labels are brutal: the victim is “Grandma,” the Sun-God is the “Economy,” and the figure who kills Grandma to appease the economic deity is “the Economists” (or Trump, or—in a private version shared in one of my WhatsApp groups—a libertarian friend of mine). (Never mind that professional economists are overwhelmingly in favor of strong measures of social distancing.) Crises encourage simplistic contrasts, and the COVID-19 pandemic—the biggest crisis of our generation—has already spurred many of them. One is precisely the contrast presented in this meme: the survival of those infected with coronavirus versus the survival of our economy. Other extreme contrasts are found in countless op-eds, blog posts, tweets, and private conversations: complete social isolation versus health catastrophe; economic paralysis versus economic normality; civil rights versus death. We are fascinated with simple contrasts, it seems, because they pit some obviously sacred value against a deformed caricature of a conflicting interest: the choice between Grandma and a heartless, impersonal “Economy” is much more resolvable than the real dilemma we face.

Here we go again. Facebook, a tech company that suffers from the delusion that it’s a nation state, has had another go at pretending that it is one...On the grounds that Facebook is the world’s largest information-exchange autocracy (population 2.6 billion) he [Zuckerberg] thinks that it should have its own supreme court...So it’s now just an “oversight board for content decisions”, complete with its own charter and a 40-strong board of big shots who will, it seems, have the power “to reverse Facebook’s decisions about whether to allow or remove certain posts on the platform”. Sounds impressive, doesn’t it? But it looks rather less so when you realise what it will actually be doing...One big surprise (for me, anyway) was that Alan Rusbridger, the former editor of the Guardian, should have lent his name and reputation to this circus. In an essay on Medium he’s offered a less than convincing justification. “In the eyes of some,” he writes, “the oversight board is one of the most significant projects of the digital age, ‘a pivotal moment’ in the words of Evelyn Douek, a young scholar at Harvard, ‘when new constitutional forms can emerge that will shape the future of online discourse.’” “Others are unconvinced,” continues Rusbridger. “Some, inevitably, will see it as a fig leaf.” I’m in the fig leaf camp, but even those like the aforementioned Douek – who evidently takes the FOB seriously – seem to have serious doubts about its viability. The most important question, she writes, is about the FOB’s jurisdiction, which of Facebook’s decisions the board will be able to review. “The board’s ‘bylaws’ contemplate a potentially vast jurisdiction, including the power to hear disputes about groups, pages, events, ads and fact-checking,” says Douek. “But the bylaws only promise this jurisdiction at some unspecified time ‘in the future’ and initially the board’s jurisdiction is limited to referrals from Facebook and ‘content that has been removed for violations of content policies’ from Facebook or Instagram.”

J. Crew and Neiman Marcus are among the first major retailers to file for bankruptcy as the coronavirus pandemic further disrupts an industry that was already having its fair share of struggles. Others are expected to follow suit, with JCPenney seeming a likely candidate as it reportedly postpones a major debt payment. Filing for Chapter 11 bankruptcy protection gives distressed companies a chance to reorganize and get a fresh start. But retail companies going through bankruptcy proceedings right now are facing a set of difficulties that wouldn’t be happening if not for the pandemic. Being unable to predict stores’ future sales is a major challenge, as is not having a way to hold going-out-of-business sales while locations remain closed in certain states. Some experts are also starting to worry about what could happen if too many companies end up filing for bankruptcy protection at once...Ben Iverson, a professor at Brigham Young University, and Mark Roe, a professor at Harvard Law School, argued in an op-ed on Project Syndicate that the bankruptcy court system should immediately work to expand its capacity to hear cases in order to avoid these issues. “For starters, special procedures are needed for bankrupts to pay critical suppliers and sometimes employees. If courts are backed up, these payments will be delayed, causing disruptions to ripple throughout supply chains,” they wrote. They continued: “Furthermore, some bankruptcy decisions must be made almost immediately so that businesses can get and keep enough cash to stay alive through their next payroll.” The authors pointed out that bankruptcy filings typically surge several months after unemployment filings start to grow at an exponential rate.

Among certain conservatives, an idea has started to take hold: Could Justice Clarence Thomas ever be the kind of pop-culture icon to his followers that Justice Ruth Bader Ginsburg has become to hers? Justice Ginsburg, 87, has a book to her name, a touring museum exhibition and a surprise box-office hit in a 2018 documentary about her life. She is tattooed on her fans. Her personal trainer has his own book out. She was appointed to the bench in 1993 but came to realize and embrace this level of celebrity in recent years when her dissents became liberal rallying calls, leading to the nickname homage — and then best-selling book on her life — “The Notorious R.B.G.” Justice Thomas, the Supreme Court’s most conservative member, is catching up in his own way at age 71...As Justice Ginsburg has become the flag bearer of the Supreme Court’s diminished judicial left, Justice Thomas, who spent years dissenting on the fringes, is a potent symbol for an ascendant conservative wing. “He’s the most right-wing member of the court, and we are in a right-wing moment,” said Randall Kennedy, a professor at Harvard Law School and critic of the justice. In a piece in The Nation last fall, he criticized those who he said had recently “been solicitous of Thomas” in terms of his biography and his legal thinking, writing that he’d once been the same himself.

"Use by.” “Best by.” “Best if used by.” “Enjoy by.” Food companies in the US began dating their products with this patchwork of labels during the 1970s—often with little, if any, scientific basis or uniformity. In the decades prior, packaged products had become increasingly popular as fewer and fewer people grew their own food. Naturally, concern arose that inconsistent date labels would make it difficult to tell if food was still fresh—and whether consumers were being swindled. In 1973, the US Congress considered a bill that would have required food manufacturers to list a date that their perishable foods should be sold by. It would also have kept retail distributors from selling food after that date had passed, punishable by a $5,000 fine and 1 year in prison. But that bill failed to make it into law. So did the next one. And the next... “So much of our food safety guidance has been ‘When in doubt, throw it out.’ ” says Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic. “We’re just throwing away so much food, and I find that to be a really unsatisfying heuristic.” Broad Leib supports a labeling system that’s standardized and easier to understand. The latest food labeling bill in the US, H.R. 3981, was introduced last year and would require expiration labels to use only two wordings: “BEST If Used By” for quality-related dates or “USE By” for discard dates, which is similar to the EU’s system.

An article by Glen Hubbard and Hal Scott: Small and midsize businesses have been hit hard by the pandemic, but they aren’t getting the help they need. Why, when the Cares Act provides direct assistance to the Treasury to assist these firms? Congress now has a chance to get to the bottom of it. On Tuesday the Senate Banking Committee will hold its first quarterly hearing on the Cares Act. It will hear from Treasury Secretary Steven Mnuchin and Federal Reserve Chairman Jerome Powell. Three questions should frame the hearing: Who is responsible for designing small and midsize business relief programs? The Treasury is required by law to approve any Fed lending facility, which must be adequately collateralized and available only to solvent borrowers...Why is Treasury risking so little money to save Main Street? Congress enacted the Cares Act nearly two months ago. It authorized the Treasury to provide at least $454 billion to back the Fed’s “Main Street” facilities, particularly to lend to small businesses and state and local governments...Why is Treasury making a priority of not losing money? The design of the Main Street facilities makes it extremely difficult for needy small businesses to qualify for loans.

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.