Media Mentions

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.

On a recent Wednesday morning, Sean Daniels pulled a large van up to the parking lot of a community center in Newark, New Jersey. There, volunteers were busy packing potatoes, mushrooms, onions, green beans, and other produce items that had been donated by the meal kit company HelloFresh into dozens of bags to be delivered to local senior centers and affordable housing complexes...Food waste might seem like an odd problem to have during a pandemic, but the shuttering of restaurants, arenas, schools, and other public institutions has created a glut of fresh produce stuck on farms with no buyers. Those producers operate within a completely separate supply chain to those who supply direct-to-consumer markets like grocery stores and food banks...Harvard’s Food Law and Policy Clinic director Emily Broad Leib agreed that restructuring tax incentives for farmers could be an easy way to reduce food waste. But there’s no quick fix for the massive amount of coordination required between various government agencies and food system stakeholders. Leib recommended encouraging states and localities to buy farmers’ excess food as much as possible. And more importantly, she said the government should expand the reach of the Supplemental Nutrition Assistance Program, also known as food stamps, including for online food orders. Leib points out that because every dollar spent on SNAP generates about $1.50 in GDP growth, increasing access to SNAP could also bolster local economies — especially if Americans could easily use the vouchers to buy food from local markets and farmers as well as large supermarket chains. “We have a food system that has a lot of challenges, even in good times,” said Leib. “This pandemic has really shown those frayed edges.”

The justices of the Supreme Court seemed reluctant Wednesday to tamper with the system America uses to choose its president, based on their comments during oral arguments over the workings of the Electoral College. The issue in the two "faithless elector" cases is a simple one: Are the 538 presidential electors free agents, or must they vote in accordance with the election results in their states? If they are free to vote as they wish, a small group of them, or even a single one in a tight contest, could decide who wins...Lawyers for four electors from Colorado and Washington state who did not conform to the popular votes in their states urged the court to rule that states can regulate only how electors are chosen, not how they vote in December. "Once the voting starts, the state disappears," said Lawrence Lessig, a Harvard law school professor arguing before the court. "States have no power to control how an elector may vote." ...Lessig said nothing in the Constitution gives the states authority to restrict how an elector can vote, but several of the justices said the Constitution doesn't explicitly block a state from doing so, either...Lessig has said he hopes the cases will eventually lead to a change in the Electoral College, either through a constitutional amendment or by encouraging more states to adopt a system in which they would assign all of their electors to whoever wins the nationwide popular vote for president.

The U.S. Supreme Court seemed pulled in two directions Wednesday—between the original meaning of the Constitution, on the one hand, and chaos in the 2020 election on the other. The election will take place amid a pandemic, at least a partial economic collapse, and potentially a Supreme Court ruling that could directly affect the election itself. The issue before the court Wednesday was whether states may remove or fine Electoral College delegates who do not vote for the presidential candidate they were pledged to support. The states say they have the power to do that. A group of 2016 electors say they don't...Harvard Law professor Lawrence Lessig, representing the electors, told the court that the founders believed that states can require electors to make a pledge, but that pledge is not enforceable by the states. Justice Clarence Thomas challenged Lessig, asking, "Can the state remove someone who openly solicits payments for his or her vote?" Lessig replied that the state can regulate corruption, but it can't remove electors unless they have been convicted of a bribe or another corrupt act. The justices seemed particularly disturbed by this assertion, asking all four attorneys arguing the case to weigh in on the possibility of states being powerless to remove electors who accept bribes...Lessig acknowledged the risk of chaos, but reiterated that he believes the risk is small. He added that there is "risk on both sides."

Supreme Court justices invoked fears of bribery and chaos Wednesday to suggest they think states can require presidential electors to back their states’ popular vote winner in the Electoral College. The justices heard arguments on an unusual voting issue that could have important consequences for the 2020 presidential election in an era of intense political polarization. A focus of the questions was whether states can replace electors who decide to vote for someone other than the state’s popular vote winner. If they can’t, “it would lead to chaos,’’ Justice Samuel Alito said, “where the popular vote is close and changing just a few votes would alter the outcome." ...Harvard Law School professor Lawrence Lessig, who favors broad changes in voting, redistricting, and the way campaigns are funded, represented the Washington electors at the Supreme Court. Lessig briefly sought the 2016 Democratic nomination and called for presidential electors to support Clinton because she won the national popular vote four years ago. Lessig warned that binding electors could open the door to other restrictions, including denying electoral votes to candidates who don’t visit their states or fail to release their tax returns.

The Supreme Court set out to clarify the nation’s age-old rules for the Electoral College system of selecting U.S. presidents, considering whether presidential electors can go rogue and ignore the voter-chosen candidate. The court, in its final teleconference arguments of the term, spent more than two hours Wednesday considering whether a state can remove or punish “faithless” electors who don’t follow its popular vote...The overwhelming majority of electors don’t attempt to break ranks, but faithless votes have been sprinkled throughout the nation’s history, starting with the first contested presidential election in 1796...Justice Samuel Alito raised the possibility of chaos, with a losing party seeking “to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.” “We deny it’s a good possibility. We don’t deny it’s a possibility,” responded Harvard law professor Lawrence Lessig, representing faithless electors from Washington state...Mr. Lessig told the justices that his clients are expected to follow instructions from voters, but with discretion built in. Electors, he said, are constrained “by moral and political obligations,” not legal ones.

At a time when his political power is slipping away, President Trump now looks to the courts to bolster his extreme theory of executive branch supremacy. In doing so, he risks precedent-setting rebukes from federal courts. In the first instance, Trump’s attorney general, sparing Trump the trouble of a pardon, seeks to dismiss the case against former national security adviser Michael Flynn — after Flynn has pleaded guilty. This disdain for impartial justice tests the limits of federal courts’ patience with Trump’s attempts to run roughshod over an equal branch of government. Constitutional scholar Laurence Tribe told me that “it’s not just a minor point that the court has already determined that the guilty pleas were well founded and has accepted Flynn’s waiver of any right to appeal the conviction those pleas supported.” He argued that not only could U.S. District Judge Emmet G. Sullivan reject the attempt to short-circuit the judicial process but that he has to do so. “Notably, [Attorney General] William Barr isn’t arguing that there’s dispositive newly discovered evidence that was unavailable when the court made its determination to accept Flynn’s pleas of guilty,” he pointed out. Instead, “In the guise of appealing to the court’s discretion, Barr is asking the court to treat its earlier adjudication as merely advisory and to give effect to the decision by the executive branch that the advice should be rejected.”

Millions of Americans are risking their lives to feed us and bring meals, toiletries and new clothes to our doorsteps — but their pay, benefits and working conditions do not reflect the dangers they face at work. Why it matters: People who stock grocery shelves and deliver packages never expected to be on the front lines of a national crisis, and now they're playing a vital, but undervalued, role...What's happening: Some companies, including Amazon and Walmart, increased hourly pay or distributed cash bonuses to low-wage workers when the pandemic began — in recognition of the hazards involved — but many of those pay bumps are expiring as employers worry about how much longer the pandemic will last...The bottom line: The coronavirus crisis is exposing the ugly ways in which low-wage workers are treated — by employers and customers alike. "But for the first time, the workplace conditions of low-wage workers are directly relevant to the whole country," says Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School...Says Block: "The fates of workers and consumers are tied together in a way that the American public has never known before."