Media Mentions

Amazon.com Inc. fired Emily Cunningham a little before the end of Good Friday, though the human resources rep put it a little differently. “You have ended your relationship with Amazon,” Cunningham recalls being told an hour after her company email account stopped working. She’d been a software engineer at the Seattle headquarters for seven years. The HR rep didn’t cite any deficiencies in her work but said she’d violated company policies. According to Amazon, she’d been breaking its rule against “solicitations.” Cunningham says that’s a policy ignored on a daily basis when it comes to things like selling Girl Scout Cookies in the office. Neither Cunningham nor fellow software engineer Maren Costa, a 15-year Amazon employee fired the same day, were big in the Thin Mints game. But both had been challenging the company’s Covid-19 safety policies and mobilizing others to join them. They’d urged their white-­collar colleagues to rally behind Amazon warehouse workers who’d gone on strike to demand stronger protective measures...In January, Harvard Law School’s Labor and Worklife Program, following a year of discussions among ­working groups of activists and scholars, released a sweeping proposal to reboot labor law from a “clean slate,” including by ending at-will employment, installing elected “workplace monitors” in every U.S. workplace, and establishing a “sectoral bargaining” process à la Europe. Advocates say such a system, in which labor and management hash out industry­wide standards, would help fix one of the flaws baked into the NLRA: As long as collective bargaining rights are limited to the individual companies where workers have won a unionization election, executives have an overwhelming incentive to fight like hell to stop that from happening, and they have cause to fear they’ll be outcompeted by lower-cost rivals if they don’t.

An article by Cass Sunstein: A lot of Americans aren’t taking Covid-19 seriously. They aren’t wearing masks. They aren’t social distancing. They aren’t staying home. That’s one reason that the number of cases is spiking in the South and West. The problem is especially serious in Florida, Arizona, South Carolina, North Carolina, California, Tennessee and Texas, which are reporting the highest numbers of hospitalizations since the coronavirus pandemic started spreading across the U.S. in March. The result is likely to be many thousands of preventable deaths. Why are so many people refusing to take precautions? A key reason is their sense of their identity — their understanding of what kind of person they are, and of the groups with whom they are affiliated. It follows that appeals to adopt responsible practices are unlikely to work unless they take group identity into account. An alarming example: In Alabama, college students have been holding “Covid-19 parties,” including people who are infected and intentionally designed to see who else can catch the virus first. In the last decades, behavioral science has drawn attention to the immense importance of personal identity in motivating behavior. A central idea, pressed by Dan Kahan, a law and psychology professor at Yale University, is that people’s beliefs and understandings are often “identity-protective.” With respect to some risks — such as those posed by climate change, nuclear power and gun violence — people’s judgments about whether a danger is high or low are deeply influenced by their understanding of the group, or tribe, to which they belong. People ask, “Am I the sort of person who thinks and does this, or not?” The answer to that question can be decisive.

An article by Noah Feldman: The John Roberts show continued today at the Supreme Court. The chief justice cast the deciding vote to overturn a decision by the Montana Supreme Court that barred a state scholarship program from funding education at religious schools. In effect, the decision says that if a state has a program that provides scholarship funding for schools, it has to make those scholarships available to religious institutions — even when the state constitution has a provision barring aid to religion. The conservative ruling followed others in previous years by Roberts. Like those that came before, it took yet another brick out of the wall separating church and state. In the foreseeable future, there may be no wall left at all. The context for today’s decision, Espinoza v. Montana Department of Revenue, goes all the way back to the 19th century and the earliest days of the public school movement. From the start, public schools in the U.S. were labeled as “non-denominational” or “non-sectarian.” As Catholic immigrants began to arrive in large numbers, some of them pointed out that the public schools were effectively Protestant, often featuring Bible readings from the King James version of the Bible and recitation of the Protestant version of the Lord’s Prayer. Catholics sought state funding for their own schools, or, barring that, the elimination of what they saw as distinctively Protestant practices. The response of America’s Protestant majority was essentially to tell Catholics, “No way.” In the run-up to the 1876 election, the Republican Party introduced a federal constitutional amendment that would have gone so far as to bar states from providing any funding to “sectarian” institutions, which meant Catholic ones. There was lots of anti-Catholic rhetoric in the public discussions of the proposed amendment, including on the floor of the U.S. Senate.

Supreme Court Chief Justice John Roberts’ role as the court’s new swing vote has become abundantly apparent in recent weeks, as he has been the deciding justice in several high-profile 5-4 decisions in which he sided with the court’s liberal bloc -- providing hope for Democrats and angering Republicans. The jurist kept court watchers on their toes yet again this week, siding with the conservatives in a tight decision that delivered a win for the school choice movement on Tuesday. But in Monday’s decision in June Medical Services v. Russo, Roberts sided with the liberal members to rule against a Louisiana law restricting who can perform abortions, upholding precedent from a similar case in 2016 in which he was on the other side. This followed his vote in rejecting the Trump administration’s attempt to rescind DACA and his vote in a 6-3 decision that prohibited employment discrimination based on sexual orientation and gender identity...Well-known liberal law professor Laurence Tribe, who taught Roberts at Harvard, expressed pride for his former student after Monday’s decision. “Adding the Louisiana abortion decision to the DACA decision and the LGBTQ decision makes me especially proud of my former constitutional law student, Chief Justice John Roberts,” Tribe tweeted. Roberts' history of separating himself from the court’s conservative contingent in key cases goes back years. In 2012, by siding with the liberal wing and reinterpreting an individual mandate as a tax, he allowed ObamaCare to be found constitutional. Additionally last year he joined with liberals again in shutting down the Trump administration’s efforts to add a citizenship question to the census.

An article by Noah Feldman: You might think this is a bad historical moment to give the president more power to boss around his subordinates. Chief Justice John Roberts disagrees. In a decision that counts as a modest win for the idea of a “unitary executive,” he has written an opinion for the Supreme Court holding that the president must have the power to fire the director of the Consumer Finance Protection Bureau for any reason. The court didn’t strike down the CFPB as a whole, thankfully. The bureau can stay in place. And the court didn’t strike down the organizational form of other independent agencies, like the FTC or FCC, which are run by multi-member, bipartisan commissioners. Roberts limited the decision to the CFPB. Roberts’s moderation here actually echoed his moderation in the Louisiana abortion case handed down today. The CFPB ruling was a moderate decision that conservatives will like, while the abortion decision is a moderate decision that liberals will like. But both reflected Roberts’s commitment to cautious conservatism in the vein of Edmund Burke. He does not favor rapid change — whatever the court’s other conservatives may want. In practice, so long as the CFPB is run by a single director, it can’t be independent in the sense of having its leadership insulated from the president. Either Congress will have to re-form the CFPB by creating a multi-member commission, or else the CFPB will cease to be independent. The stakes of the decision, Seila Law v. CFPB, are particularly high because the case is essentially about whether and how the Constitution allows independent agencies to be shielded from presidential control. That matters when you have a president who has set out to politicize nearly every aspect of decision making, including in areas, like criminal justice, where there is a robust tradition of independence.

An article by Cass Sunstein: On rare occasions, the Supreme Court answers the most fundamental questions, going to the very heart of our constitutional system. In striking down the independence of the Consumer Financial Protection Bureau, the court today did exactly that. Since the founding itself — and with mounting intensity over the 40 years — the United States has been divided over two visions of the Constitution. The first insists that we have a “strongly unitary executive,” which means that the president must be in charge of all those who implement federal law. For those who believe in a strongly unitary executive, all departments, all agencies and all administrators work under one person: the commander in chief. Congress lacks the power to create “independent” agencies, headed by people whom the president cannot fire, and who are not subject to his will. According to the second vision, we have a “weakly unitary executive,” which means that Congress has the authority to restrict the president’s power to control some officials who implement federal law. If Congress wants to create independent regulators, such as the Federal Trade Commission, the Federal Communications Commission and the Consumer Financial Protection Bureau, it’s perfectly entitled to do that. Sure, the president must be allowed to carry out his constitutional functions, meaning that he has to be allowed to control the secretary of State and the secretary of Defense (and perhaps the attorney general). But for those who believe in a weakly unitary executive, Congress is allowed to make some regulators independent of the president.

An article by Eli Nachmany '22: As the COVID-19 pandemic has shifted many universities online for the upcoming fall semester and dramatically increased the number of individuals enrolled in online-learning platforms such as Coursera, one thing is clear: The way we approach higher education in the United States is changing. And President Trump’s recent executive order directing the federal government to consider skills as well as degrees in hiring employees is a big win for those who want our federal workforce to keep pace with that change. To keep the American workforce competitive in the 21st century, we need to be deliberate about how our nation finds and develops talent. In the post-pandemic economic recovery, leveraging all of the educational tools at our country’s disposal is not a luxury, but a necessity. And to that end, the Ivanka Trump–led American Workforce Policy Advisory Board has spearheaded the administration’s advocacy for apprenticeships, online learning, and vocational training as cornerstones of educational reform. We cannot, of course, discount the importance of liberal-arts education. To take one example, Goldman Sachs CEO David Solomon noted last year that the ability to write well is increasingly rare, even at his firm. He praised liberal-arts institutions for equipping students with the communication and interpersonal skills necessary to succeed in the professional world. Any national workforce policy must recognize the importance of these “soft skills.”

An article by Adira Levine '22: In 2018, Congress established the National Security Commission on Artificial Intelligence (NSCAI)—a temporary, independent body tasked with reviewing the national security implications of artificial intelligence (AI). But two years later, the commission’s activities remain little known to the public. Critics have charged that the commission has conducted activities of interest to the public outside of the public eye, only acknowledging that meetings occurred after the fact and offering few details on evolving commission decision-making. As one commentator remarked, “Companies or members of the public interested in learning how the Commission is studying AI are left only with the knowledge that appointed people met to discuss these very topics, did so, and are not yet releasing any information about their recommendations.” That perceived lack of transparency may soon change. In June, the U.S. District Court for the District of Columbia handed down its decision in Electronic Privacy Information Center v. National Security Commission on Artificial Intelligence, holding that Congress compelled the NSCAI to comply with the Federal Advisory Committee Act (FACA). Under FACA, the commission must hold open meetings and proactively provide records and other materials to the public. This decision follows a ruling from December 2019, holding that the NSCAI must also provide historical documents upon request under the Freedom of Information Act (FOIA). As a result of these decisions, the public is likely to gain increased access to and insight into the once-opaque operations of the commission.

In a series of stunning decisions over the past two weeks, Chief Justice John G. Roberts Jr. has voted to expand L.G.B.T.Q. rights, protect the young immigrants known as Dreamers and strike down a Louisiana abortion law. In all three decisions, he voted with the court’s four-member liberal wing. On Tuesday, he joined his usual conservative allies in a 5-to-4 ruling that bolstered religious schools. The decisions may be hard to reconcile as a matter of brute politics. But they underscored the larger truth about Chief Justice Roberts: 15 years into his tenure, he now wields a level of influence that has sent experts hunting for historical comparisons...Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision vindicated Chief Justice Roberts’s statements. “The chief is sending a broader message to both parties, and this time in this case it is the Republicans who take the hit,” Professor Lazarus said. “But the message would be the same if it were the Democrats and their favored position had lost.” The message was this, Professor Lazarus said: “You cannot expect us to behave like partisan legislators.” The abortion case concerned a Louisiana law that was essentially identical to one from Texas that the court had struck down just four years ago, before Mr. Trump appointed two new justices. In dissent in 2016, Chief Justice Roberts had voted to uphold the Texas law. Professor Lazarus said he suspected the chief justice was offended by the idea that a change in the composition of the court should warrant a different outcome in what was, at bottom, the identical case.

Australian advertisers say they are considering pulling their advertising from Facebook amid a growing global backlash over hate speech on social media. Starbucks, Coca-Cola and consumer goods giant Unilever are among the big names who've joined the boycott, prompting Facebook's share price to tumble by more than 8 per cent. The company's founder and chief executive Mark Zuckerberg has since announced updates to the company's advertising standards. Guest: Evelyn Doeuk, lecturer on law and a Doctoral Candidate with Harvard Law School and an expert in the regulation of online speech.

Hosted by June Grasso. Guests: Tara Lachapelle, Bloomberg Opinion media columnist: "AMC’s Wrong. Requiring Masks Isn’t Political." Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: "DACA Ruling Shows Roberts Is Done Trusting Trump." Toby Harshaw, a national security writer and editor for Bloomberg Opinion: "U.S. Allies Can't Face Four More Years of Trump." Sarah Green Carmichael, Bloomberg Opinion editor: "Beat Remote-Work Burnout as a Team." Brooke Sutherland, Bloomberg Opinion industrials columnist: "Is Your AC Keeping You Safe From Covid?"

As he prepares to retire, Laurence Tribe retraces his path from teen immigrant math whiz to leading constitutional law scholar and admired professor.

Pressure is mounting for Kansas State University to expel a student whose insensitive tweets about George Floyd last week sparked a national uproar. But a critical question looms: Can the university legally kick out a student for exercising his First Amendment rights? “A student at a public university making an extremely offensive statement on social media is almost quintessentially the kind of thing that should be protected against sanctioning by public authorities,” said Mark Tushnet, a Harvard Law School professor. “And sanctioning would include expulsion from a public university. On the face of it, it seems to me that taking action directly against the student would be a violation of the First Amendment.” Jaden McNeil, a junior in political science and head of K-State’s America First Students chapter — a controversial group he formed earlier this year — posted the tweets Thursday afternoon...Tushnet of Harvard Law said if K-State does expel McNeil and he files a lawsuit, his chances of success would depend on the kind of remedy he was seeking. “If he wanted to be readmitted, then he’d have a pretty good chance of winning,” he said. “If he wanted damages for injury to his career or something like that, it would be a closer question.” Tushnet acknowledged that the incident puts university officials in a difficult position. “That’s why you hire good administrators,” he said. “I can imagine a very good administrator, president, deans, figuring out a way to work with the athletic teams in a way that would leave them satisfied without expelling the student. But that depends on the president’s ability and local circumstances, all of which I don’t know.”

The top attorneys for the District of Columbia and Minnesota last week launched major lawsuits against the oil and gas industry, adding to a growing swell of climate battles focused on consumer protection. Legal experts say climate litigators facing off against the fossil fuel industry's major players are getting more creative in their use of state statutes and common law, which could help them avoid prolonged procedural battles over whether the cases belong in state or federal court — a problem that has plagued local challengers seeking industry compensation for climate impacts. By strengthening their arguments for state venues, state challengers could move more quickly to the meat of their cases...These cases — and a similar lawsuit filed last year by Massachusetts Attorney General Maura Healey (D) — are distinct from climate nuisance lawsuits brought by cities, counties and one state that seek to hold oil and gas companies financially accountable for rising sea levels and other effects of climate change...Experts like Hana Vizcarra, staff attorney at Harvard Law School, said the states' consumer protection cases also move away from claims rooted in securities law. The New York attorney general's office last year lost its bid to hold Exxon accountable under the state's Martin Act, an anti-fraud law. "It's noticeable that there's been this common shift to consumer protection, but it's also not super surprising because nobody else has the Martin Act," Vizcarra said. "It's harder to bring securities fraud claims, and they're just really dependent on the state laws." Prohibitions against deceptive corporate practices are more widespread, she said. "You see those kinds of authorities in laws across the country in every state," Vizcarra said.

Every Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows. In a remarkable stretch of decisions over the past two weeks, Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought here as children...Roberts’s admirers speculate he was turned off by the attempt to have the court’s 2016 decision overturned because the court’s membership had changed with Trump’s two appointments. Too soon, said Richard Lazarus, a Harvard law professor who has known Roberts since law school days and who has taught summer courses with the chief justice. “The chief’s clear message is that is not how justices do their work,” Lazarus said in an email. “It is a shot across the bow at presidential candidates who campaign with lists of nominees based on the assumption that, if confirmed, they will of course necessarily vote based on the preferences of the majority who supported that candidate.”

Here's the Radio Boston rundown for June 29. Tiziana Dearing is our host. The Supreme Court struck down a Louisiana law that required doctors performing abortions to have admitting privileges to nearby hospitals. We're joined by a retired federal judge and WBUR legal analyst Nancy Gertner. According to a new report from MIT and City Life/Vida Urbana, communities of color in Boston are disproportionately impacted by evictions in Boston — and it could get worse with the pandemic. We dig into the report and its implications. In an effort to show how executives of color can lead on eliminating racial inequities, a group of Black and brown business leaders in Boston has come together to create the "New Commonwealth Racial Equity And Social Justice Fund." We speak with one of the women behind the effort. We "Check The Score" and dig into Cam Newton's move to the New England Patriots.

The Supreme Court on Monday ruled on a major abortion case to start the week. The court struck down a Louisiana law that required doctors performing abortions have admitting privileges to nearby hospitals — the effects of which could have left the state with a single abortion clinic. We discuss with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's legal analyst.

It took a global pandemic and stay-at-home orders for 1.5 billion people worldwide, but something is finally occurring to us: The future we thought we expected may not be the one we get. We know that things will change; how they’ll change is a mystery. To envision a future altered by coronavirus, Quartz asked dozens of experts for their best predictions on how the world will be different in five years. Below is an answer from Bruce Schneier, a security expert focused on technology. He is a fellow at the Berkman Klein Center for Internet & Society at Harvard University and a lecturer in public policy at the Harvard Kennedy School. He is also the author of more than a dozen books—his latest, Click Here to Kill Everybody, was published in 2018. "For decades, we have prized efficiency in our economy. We strive for it. We reward it. In normal times, that’s a good thing.  Running just at the margins is efficient. A single just-in-time global supply chain is efficient. Consolidation is efficient. And that’s all profitable. Inefficiency, on the other hand, is waste. Extra inventory is inefficient. Overcapacity is inefficient. Using many small suppliers is inefficient. Inefficiency is unprofitable. But inefficiency is essential security, as the Covid-19 pandemic is teaching us. All of the overcapacity that has been squeezed out of our health care system; we now wish we had it. All of the redundancy in our food production that has been consolidated away; we want that, too. We need our old, local supply chains—not the single global ones that are so fragile in this crisis. And we want our local restaurants and businesses to survive, not just the national chains."

Each year, the United States deports over 100,000 noncitizens through “expedited removal,” a fast-tracked deportation process. In creating the system, Congress intentionally limited procedural protections for certain immigrants, allowing judges reviewing these removal orders to consider only three narrow questions: whether the immigrant is a noncitizen, has been ordered removed, or is a lawful permanent resident, refugee or asylum seeker. Vijayakumar Thuraissigiam, a Sri Lankan national who sought asylum in the United States, challenged that limit, arguing that it was an unconstitutional barrier to habeas corpus, a right that allows a judge to review whether someone is legally detained. On Thursday, the Supreme Court disagreed, issuing a sweeping ruling in Department of Homeland Security v. Thuraissigiam...Boumediene found that the Constitution guarantees habeas corpus rights even to detainees the Bush administration held as “enemy combatants.” That was true even though the detainees weren’t citizens. In fact, as legal scholar Gerald Neuman put it, Boumediene “confirmed and held that the Suspension Clause constitutionally guarantees habeas corpus to noncitizens” (emphasis original). The Thuraissigiam majority opinion, however, characterizes Boumediene as “forming ‘no certain conclusions’ ” on whether habeas rights extend to “alien[s] who lack … any allegiance to the country.”

An article by Cass Sunstein: The year: 1964. The location: the Oval Office. President Lyndon Johnson, an improbable advocate for civil rights, was meeting with Governor George Wallace, an implacable foe of civil rights. Wallace had requested the meeting. The specific topic was voting rights and the ongoing demonstrations on their behalf. He wanted the president to help stop them. After a little small talk, the governor began the conversation by alleging that many of the “malcontents” had been “trained in Moscow.” Johnson responded that all the protesters wanted was the right to vote. He added that “you can’t stop a fever by putting an icepack on your head. You’ve got to use antibiotics and get to the cause of the fever.” Wallace was disdainful. He said that it was impossible to “deal with street revolutionaries,” who could never be satisfied. You might give them the right to vote, but “then it’s jobs; then it’s distribution of wealth without work.” Increasingly frustrated, Johnson asked Wallace to think about the verdict of history, not about the current moment. He asked: "George, what do you want left behind? Do you want a great big marble monument that says 'George Wallace: He Built'? Or do you want a little piece of scrawny pine lying there along that hot caliche soil that says 'George Wallace: He Hated'?" Wallace was shaken. Later he said to an aide, “Hell, if I’d stayed in there much longer, he’d have had me coming out for civil rights.” Johnson’s key distinction — between the builders and the haters — is keenly relevant today, of course. Most important, it captures the split between those who are working for racial justice, including voting rights (and jobs), and the modern-day Wallaces, who in various forms are complaining of “street revolutionaries,” doubting the patriotism of the protesters, and emphasizing looting and acts of violence, as if they are all that matter.

An article by Noah Feldman: Chief Justice John Roberts has drawn his line in the sand.  In what may well come to be his most famous opinion ever, a solo concurrence in today’s Louisiana abortion case, Roberts voted to uphold Casey v. Planned Parenthood, the 1992 decision in which Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter declined to overturn Roe v. Wade. The basis was stare decisis — the doctrine of precedent which, he said, instructs us “to treat like cases alike” rather than changing the rules and reversing course. Roberts made it clear that he reads the Casey decision very narrowly, to allow restrictions on abortion that don’t impose an “undue burden” on reproductive freedom. He signaled that he is still open to upholding laws that chip away at the existing abortion rights framework, which has been his approach in the past. Roberts hasn’t had some transformative epiphany that made him into a staunch defender of abortion rights. But crucially, Roberts also made it as clear as he could that, so long as he is the swing vote on the court, he isn’t open to overturning Roe or Casey. He doesn’t want the Roberts Court to be remembered as a reactionary body that reversed nearly 50 years of settled law on abortion rights. This is a massive setback for legal conservatives. It means that to overturn Roe and Casey, they need President Donald Trump to be re-elected and to get at least one more conservative on the court to replace a liberal justice.