Media Mentions

An article by Benjamin Sachs: Among the many outrages in the death of George Floyd is this one: Derek Chauvin, the police officer who killed Floyd, had been the subject of at least 17 misconduct complaints and yet he remained an armed member of the Minneapolis Police Department. How does that happen? Part of the answer is the collective bargaining agreement reached between the police department and Chauvin’s union. Like other such police agreements, the one in Minneapolis gives cops extraordinary protection from discipline for violent conduct. It mandates a 48-hour waiting period before any officer accused of such conduct can be interviewed, a common delay and a luxury not afforded even to criminal suspects and one that allows officers time to develop a strategy to avoid accountability. Like many police contracts, including those in Baltimore, Chicago and Washington, D.C., the Minneapolis agreement also requires the expungement of police disciplinary records after a certain amount of time. Under the Minneapolis police contract, any disciplinary action that does not result in punishment must be removed from an officer’s record. Even in cases where an officer is fired for misconduct, the agreement requires an appeals process that frequently leads to reinstatement, especially if the investigating agency has committed procedural errors. Police collective bargaining agreements, in short, insulate cops from discipline.

Members of the Harvard Law School faculty published an open letter to students and Harvard affiliates Monday criticizing President Donald J. Trump for calling for a military response to ongoing protests against police brutality. The letter received signatures from 160 faculty members, including former Law School Dean Martha L. Minow and former United States Ambassador to the United Nations Samantha J. Power. It was reopened for signatures on June 2 after requests from additional Law School teaching faculty and law librarians. The authors of the letter denounced a tweet posted by Trump on May 29 which included the phrase “when the looting starts, the shooting starts” in reference to nationwide protests following the killing of George Floyd by Minneapolis police. They argue the president’s language encourages violence by private citizens. “By legitimating lawless action by public officials, the President’s tweet invites other individuals to take similarly destructive action,” the letter reads. The White House press office did not immediately respond to a request for comment. Law School professor Christine A. Desan, who worked on drafting the letter, said Trump’s tweet signified a commitment to using violence against citizens involved in the protest. She said she finds the message problematic since Trump speaks as the Commander in Chief of the Army. “We don't under our Constitution live in a society where even if somebody is stealing something they get shot,” she said. “To have him pledge to use excessive state violence against people indiscriminately is really unlawful — deeply unlawful.”

In May 2020, Elizabeth Bartholet, a Harvard Law Professor, called for significant new regulations on homeschooling in the United States. In this extra-long episode, I interview Professor Bartholet about her ideas, research, and proposals. We are joined by Rachel Coleman, executive director of the Coalition for Responsible Home Education — and a grown homeschooler herself — who contributes a wealth of experience and impassioned arguments for increasing oversight of homeschooling. While all three of us have different visions of what “appropriate regulation” might be, we also find areas of agreement. Discussion topics include: Who homeschools in the U.S.? How prevalent is abuse and neglect? What is good and important about homeschooling? What’s the justification for increased regulation? Do bad schools inflict just as much (or more) harm on children than homeschooling? And what are the most essential legal changes that Bartholet and Coleman would each like to see enacted?

Who is Lawrence Lessig and why is he campaigning for electoral reform? Lawrence Lessig is an academic, attorney and political activist who has served as Director of the Edmond J. Safra Center for Ethics at Harvard University. He rose to prominence in 2014 when he launched the crowd-funded Mayday PAC, with the aim of electing members of Congress who support campaign finance reform, before ultimately running for President on a platform of electoral reform. In 2016, he founded the non-profit ‘Equal Citizens’, an organization “dedicated to reforms that will achieve citizen equality”. On 13th May 2020, he argued at the Supreme Court in a case that will decide whether presidential electors in each state can be legally compelled to vote for the candidate that won the popular vote in that state.

The solar industry, struggling amid the coronavirus pandemic, faces another threat at the Federal Energy Regulatory Commission: a petition that would effectively end a key incentive for installing rooftop solar called net metering. The New England Ratepayers Association on April 14 asked FERC to declare that the agency has jurisdiction over net metering, which requires utilities to buy excess power from customers who generate electricity with their own energy resources, such as rooftop solar panels...The question at the heart of NERA’s petition is whether sales from rooftop solar should be deemed retail sales, which are regulated by states, or wholesale sales, which fall under FERC’s jurisdiction. In decisions issued in 2001 and 2009, FERC has said that net metered electricity sales fall under state authority. NERA, however, contends FERC’s analysis is flawed. If FERC asserts authority over net metered sales, the practice would be effectively killed, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. The solar industry finds NERA’s petition alarming...Harvard Law School’s Peskoe contends that NERA’s petition is based on flawed legal analysis. Also, unlike typical petitions at FERC, NERA failed to say how the group is harmed by net metering or describe exactly what the group is. FERC could dismiss the petition on those grounds alone, Peskoe said.

Earlier this week, the Department of Labor clarified that under existing law U.S. retirees with 401(k) plans can allocate a portion of their savings to investments in private equity funds. According to Hal Scott, the President of the Committee on Capital Markets Regulation and Emeritus Nomura Professor, Harvard Law School, "the DOL's information letter is a major step towards providing U.S. retirees that have over $6 trillion in 401(k) retirement savings with access to the high returns and diversification benefits of private equity." The Committee on Capital Markets Regulation, an independent research organization with thirty-five members drawn from the finance, law and academic communities, strongly supports expanded access to private equity for retirees and retail investors. Presently, 401(k) plan fiduciaries generally do not provide retirees with access to private equity due to the risk of frivolous litigation alleging excessive fees or underperformance. The DOL's information letter should help address these concerns by clarifying that 401(k) investment options may include an allocation to private equity funds, so long as a plan fiduciary has evaluated the risks and benefits of doing so. Consistent with recommendations by the Committee, the DOL sets forth best practices for plan fiduciaries to consider such risks and benefits. "I am glad to see that the DOL took this action pursuant to President Trump's Executive Order to remove barriers to economic growth and innovation," says Prof. Scott.

An article by Noah Feldman: Did President Donald Trump’s administration violate the First Amendment on June 1 when various police and other security forces tear gassed peaceful demonstrators in Lafayette Square park so the president could walk to St. John’s Church for a photo op? That is the central question in a lawsuit brought over the weekend by the Washington, D.C. chapter of Black Lives Matter and a number of individual protesters. The answer is almost certainly yes. And the lawsuit is extremely important, not because the plaintiffs will necessarily prevail, but because it is the best and maybe only way to prevent such a blatant constitutional violation from happening again just steps from the White House. Like most people, I followed the events of the evening of June 1 on television. The Trump administration may eventually offer a different version than the one we saw. For now, however, it’s reasonable to assume a set of facts pretty close to those alleged in the lawsuit. Essentially, Lafayette Square, directly across from the White House, was full of peaceful protesters. They were exercising their First Amendment rights in a public park, which the courts consider to be the very model of a “traditional public forum” where free speech rights are at their peak. Just after 6 p.m., a large number of armed law enforcement and military gathered around the park. The lawsuit alleges that they included “at least” U.S. Park police, Arlington County police, U.S. Secret Service, D.C. National Guard, and military police from the 82nd Airborne Division of the U.S. Army. Trump had apparently tasked Attorney General William Barr with commanding this wide range of police. There have been divergent accounts of whether Barr gave a direct order to clear the park.

An article by Nancy Gertner and Paul Butler: If equal justice under the law had applied to George Floyd — justice equal to what the four cops now charged with his murder have received — he would never even have been arrested. The tale of these arrests — one of a black man and that of four police officers — explains why there is justifiable rage on America’s streets. On May 25, a store clerk in Minneapolis called the police because he suspected that Floyd had paid for a pack of cigarettes with a counterfeit $20 bill. But the store owner later said: “Most of the times when patrons give us a counterfeit bill, they don’t even know it’s fake.” The call should have started an investigation; that’s not what happened to Floyd. Instead, within minutes of the police officers’ arrival, Floyd was facedown on the street, hands tied behind his back, with Derek Chauvin pressing his knee into his neck for nearly nine minutes, while two other cops restrained Floyd by pressing down on his back and legs, and the fourth officer kept distressed passersby from intervening. Floyd begged for his life, telling them that he couldn’t breathe. Soon, his body went limp and silent. He was declared dead at the hospital. Chauvin was caught killing a man on video, while several eyewitnesses pleaded with him to stop. Yet he appeared completely calm, bored even, one hand nonchalantly in his pocket as Floyd died beneath his knee. So casually did the cops arrest, brutalize and kill Floyd for nothing. And just as easily did Chauvin and the other three officers leave the scene of their crime. No police cars swarmed the scene to arrest the four officers. Chauvin went home that night a free man, and for the next three nights as well. The other officers were not arrested until Wednesday.

An article by David Harris: I hate the PO-lice. This is not an easy thing to admit and will certainly generate a great deal of heat, but it is past time to do so. To be clear from the beginning, this hatred is not directed at individuals, whether rank and file or leadership. It is directed at the institution and practice of policing in the United States, born as it was from the practices of slave catching, which has served as an instrument of social control over black people for far too long. So, I hate the policing. I have to keep saying it. It’s more important than repeating the name of someone who has been killed or any other chant we might invoke in protest. It conveys a truth, hard to come by, but once arrived, so very cathartic. It is a complicated admission and it actually feels like a confession. I have always told my son “hate is a strong word,” and urged him to use it sparingly. Sunday night when he returned from marching and protesting on the streets of Boston and we were watching the policing of the city on television, I had to say it out loud, though in a muted voice. “I hate the police,” I whispered. My son has grown up in the era of cellphones and social media. He has been bombarded but also socialized by social media reports of police atrocities. In the aftermath of George Floyd’s murder, we have talked about policing at length and in those conversations, informed by his couple years of college, including a course on Red Summer of 1919, we talked about police abolition. I told him how happy I was to know that he had been listening to me for all the years I have been telling him police are not a natural phenomenon, that society existed and survived for millennia without them.

The Edison Electric Institute has battled against solar net-metering policies for years. But on Thursday the primary industry group for U.S. investor-owned utilities confirmed that it is staying neutral on a controversial petition asking federal regulators to declare net metering illegal. On June 15, the Federal Energy Regulatory Commission will close comments on a petition filed by the New Hampshire-based New England Ratepayers Association asking FERC to adopt a legal argument that would undermine net-metering programs in more than 41 states...If FERC approves the petition, it “could create chaos at the state level,” Ari Peskoe, director of the Electricity Law Initiative at Harvard University, said in a Thursday interview. An approval could open up state programs to challenges from utilities in regulatory proceedings and independent lawsuits in federal court, Peskoe said...The National Association of Regulatory Utility Commissioners has not yet filed comments in the FERC proceeding, but Mississippi PSC Commissioner and NARUC President Brandon Presley objected to FERC’s June 15 deadline in a May 5 statement, saying it would “divert precious time, attention and resources to fighting NERA's request in a tightly compressed schedule.”  FERC declined NARUC’s request to extend the comment deadline, but it has no hard deadline to make a decision on NERA’s petition, Harvard’s Peskoe said. “We’ll just be waiting to see what happens.”

African innovators have shown creativity and ingenuity in finding solutions to fight the COVID-19 pandemic, but face legal barriers to safeguarding their intellectual property. There have been 192 innovations directed at COVID-19 from Nigeria alone, as well as more than 90 from South Africa, it was revealed during a webinar hosted by Harvard Law School’s Center on the Legal Profession, and digital platform Africa.com. “One of the things COVID-19 has done is to underscore the importance of innovation in societies that have been viewed as lacking the intellectual capacity to deploy innovation,” said Professor Ruth L. Okediji of Harvard Law School. “Many innovations in Africa lack the protection necessary to make business models scalable and meaningful.” The webinar brought together top legal minds to discuss Law and crisis management: Working with lawyers in business, government and society to manage the challenges of COVID-19...David Wilkins, Faculty Director at the Center on the Legal Profession, started off with a brief presentation on the role of lawyers in society, reminding participants that one of the continent’s greatest freedom fighters, Nelson Mandela, had been a lawyer. “We tend to think of lawyers as technical appliers of the law…Lawyers must also be counsellors to help clients make decisions that are not only legal but also right…Lawyers must also be leaders who play a critical role in leading key organizations,” Wilkins said.

For Albert Baraka, the ceremony outside the federal immigration office in Lawrence, Massachusetts, was brief, but life changing. The 20-year-old, who came to the country six years ago as a refugee from Congo, joined nine others Thursday morning to recite the oath of allegiance, the final, ceremonial step to becoming a U.S. citizen. A junior studying business management at Norwich University, a private military college in Vermont, he said he’s looking forward to being able to cast his very first ballot this election...U.S. Citizenship and Immigration Services, which is charged with overseeing the nation’s legal immigration system, resumed in-person services in many cities across the country Thursday after closing offices mid-March because of the coronavirus pandemic...But immigrant rights groups say the agency still hasn’t come up with an efficient plan to get through the backlog of people already approved to become citizens who had oath ceremonies cancelled in recent months because of the pandemic...In Massachusetts, meanwhile, local immigrant rights groups have asked the federal court to intervene. More than 4,000 people in the state have been denied the ability to vote because of the delayed ceremonies, a number that will swell to more than 12,000 if oath ceremonies are not consistently conducted before the fall, Harvard Law School’s Immigration and Refugee Clinical Program and other organizations said in a letter to the U.S. District Court for Massachusetts on Wednesday. The Boston court and USCIS should consider holding virtual ceremonies, or at least waive the oath requirement during the pandemic, said Sameer Ahmed, a clinical instructor with the Harvard Law School program.

The Trump administration, in twin actions to curb environmental regulations, moved on Thursday to temporarily speed the construction of energy projects and to permanently weaken federal authority to issue stringent clean air and climate change rules. President Trump signed an executive order that calls on agencies to waive required environmental reviews of infrastructure projects to be built during the pandemic-driven economic crisis. At the same time, the Environmental Protection Agency has proposed a new rule that changes the way the agency uses cost-benefit analyses to enact Clean Air Act regulations, effectively limiting the strength of future air pollution controls...Environmental activists and lawyers questioned the legality of the move and accused the administration of using the coronavirus pandemic and national unrest to speed up actions that have been moving slowly through the regulatory process. “When it comes to trying to unravel this nations’ environmental protection laws, this administration never sleeps,” said Richard Lazarus, professor of environmental law at Harvard University...Mr. Lazarus, the Harvard professor, noted that the environmental policy act provides for federal agencies to consult with the White House on whether “emergency circumstances” make it necessary to waive requirements, but does not give power to waive environmental requirements. “The president’s assertion of authority to waive the application of environmental laws in the way described seems wholly untethered from law,” Mr. Lazarus said. Democratic leaders said the administration’s actions would be particularly harmful to communities of color.

An article by Cass Sunstein: What pushed former Defense Secretary James Mattis over the edge, to denounce President Donald Trump, in the strongest possible terms? Only the former general knows for sure, but a clue is provided by the title of his statement: “In Union There Is Strength.” Another clue is provided by the most important words in his text: “Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead he tries to divide us.” With those words, Mattis is signaling a national challenge that goes back to the founding era, that almost derailed the American project from the very start, that helped start the Civil War, and that has had to be managed with great care during every national crisis. Shortly after the American Revolution, the new nation was at grave risk of falling apart. To many people, diverse affiliations and identities made it difficult to speak of the “United States of America.” Under the Articles of Confederation, intense loyalty to states, and competition among states, seemed to outstrip loyalty to the nation. Prominent politicians fueled the divisions. The Constitution was designed to solve that problem. You can see what its framers had in mind if you look an early draft of the document.

An article by Joshua A. Geltzer, Neal K. Katyal, Jennifer Taub and Laurence H. Tribe: The Trump administration’s authoritarian behavior on the streets is being matched by its authoritarian positions in the federal courts. On Monday, as the administration used military force to push peaceful protesters out of Lafayette Square, administration lawyers filed an astonishing brief in the federal appeals court down the street, urging the court to order the trial judge to dismiss the case against Michael Flynn. The brief represents a remarkable new position by the Trump Justice Department: The doors of federal courthouses should be closed to hearing arguments other than those advanced by the department itself, and federal judges may not even inquire into whether the administration has acted improperly. When the Justice Department moved abruptly to drop the Flynn case — after he pleaded guilty (twice) and as he was awaiting sentencing — U.S. District Judge Emmet G. Sullivan took two steps. He appointed a “friend of the court” to argue the position that the Justice Department had suddenly abandoned; and he called a hearing to scrutinize the department’s about-face. The Justice Department told the appeals court that it should take the extraordinary step of intervening in the case — before Sullivan has ruled or even held a hearing — to stop him from doing so. “Simply put, the district court has no authority to reject the Executive’s conclusion,” the department said.

Advocates are calling on the U.S. District Court for Massachusetts to address the growing backlog of citizenship ceremonies created as a result of the coronavirus pandemic. The naturalization ceremonies, which include the citizenship oath, have been on hold since March. The citizenship oath is more than a symbolic gesture. It's the final legal step in the long process of becoming a naturalized U.S. citizen. These ceremonies, often conducted for hundreds of people at a time, have been stalled in light of the coronavirus — and the ever-evolving public health guidelines on social distancing. Sameer Ahmed, an attorney and clinical instructor with Harvard's Immigration and Refugee Clinical Program, estimates nearly 7,000 Massachusetts residents — and more than 100,000 people nationwide — are still waiting to take the citizenship oath. That wait is preventing people from accessing a host of benefits they're entitled to, along with the right to vote in local, state and federal elections. Ahmed said now, during a pandemic that's wreaking havoc on the global economy, eligibility for financial benefits is crucial. "Many are unable to apply for supplemental security income, unemployment benefits, they can't vote in elections," he said. "And many just want the sense of security and belonging of what it means to be an American."

The Boston office of the federal immigration agency that deals with the country’s naturalization process reopened today, 11 weeks after shutting down most in-person services due to the coronavirus pandemic. A spokesperson said that USCIS is following the Trump administration’s three-phase guidelines for reopening the country as well as Department of Homeland Security and health officials’ policies and social distancing safety guidelines. The agency said employees will continue to telework whenever possible. In-person services will be limited to things like getting a passport stamped or scheduling oath ceremonies. No new naturalization requests will be accepted for now. USCIS is charged with processing immigrant visa petitions, naturalization, green card, asylum, and refugee applications. It also makes adjudicative decisions on those applications and manages immigration benefits, including employment authorization...Project Citizenship, an organization that works with immigrants seeking to become citizens, and the Harvard Immigration and Refugee Clinical Program sent a letter today asking federal court judges in Boston to resume citizenship ceremonies. They said they’re concerned that the long wait has left some people ineligible to apply for benefits like unemployment, and has also prevented them voting. The organization is suggesting outdoor ceremonies, remote ceremonies, and even foregoing administration of the oath, with USCIS simply issuing naturalization certificates. “Our concern is that due to COVID-19 safety restrictions, USCIS will likely only be able to naturalize a handful of individuals at each ceremony, said Sameer Ahmed, clinical instructor at the Harvard program. “Given that the federal court previously held large-scale oath ceremonies for hundreds of individuals, we believe that the agency’s current effort will be unable to resolve the significant backlog in a timely manner.”

An article by Nancy Gertner: True to form, President Donald Trump appears poised to blunder into an area fraught with constitutional, not to mention human peril. He has threatened to deploy the United States military if “a city or state refuses to take actions that are necessary to defend the life and property of their residents,” to, as he says, “stop the rioting and looting.” There is an irony here. Trump was unwilling to deploy the considerable authority he had under the Defense Production Act of 1950 to do what needed to be done in the face of the pandemic, but is willing to deploy authority he may well not have — or should not exercise — in the face of protests and civil disorder. Trump refused to invoke the full power of the Defense Production Act, which would enable the government to direct private companies to ensure the procurement of vital equipment needed to fight the coronavirus pandemic. Governors and members of Congress pleaded for its invocation. He relented only to get General Motors to step up ventilator production and 3M to manufacture N-95 masks, but no further. It would be, he said, the equivalent of “nationalizing our business,” which we should not do. “Call a person over in Venezuela, ask them how did nationalization of their businesses work out? Not too well,” he said. But, of course, it’s OK to be Venezuela when Trump threatens federal military force to quell domestic disputes.

Minnesota Attorney General Keith Ellison today announced new criminal charges against the four former Minneapolis police officers who were involved in the May 25 death of George Floyd, an incident that set off protests across the country. Ellison upgraded an earlier charge against Derek Chauvin, who kneeled on Floyd's neck for nearly nine minutes while arresting him for passing a counterfeit $20 bill, and for the first time charged three other officers who were also at the scene, two of whom helped pin Floyd to the pavement. Local prosecutors previously charged Chauvin with third-degree murder, which is punishable by up to 25 years in prison, and second-degree manslaughter, which carries a penalty of up to 10 years. Ellison changed the first charge to second-degree murder, increasing the maximum sentence to 40 years...Ellison apparently agreed with Harvard law professor Laurence Tribe and Minnesota criminal attorney Albert Turner Goins, who argued that the third-degree murder charge against Chauvin was inappropriate. Minnesota law defines that offense as causing someone's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." Tribe and Goins noted that state courts have interpreted the statute as limiting the charge to "reckless or wanton acts…without special regard to their effect on any particular person." Instead they recommended the sort of second-degree murder charge that Ellison has now filed.

Noah Feldman, Harvard Law professor and Bloomberg Opinion columnist, discusses his column: "Can Trump Send In the Military? Probably, Yes." Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Peter Brann and James Tierney: Last Friday, the partisan leadership at the U.S. Department of Justice in Washington claimed that it knew better than Gov. Mills what should be done in Maine in the COVID-19 pandemic. They argued to a federal court in Maine that Gov. Mills’ emergency order mandating a 14-day self-quarantine for out-of-state visitors was unconstitutional (which is rich irony, given that they have also argued in favor of banning altogether persons in affected countries from even entering the country to slow the virus’ spread). Later the same day, U.S. District Judge Lance Walker rebuffed their efforts, finding: “The governor’s executive orders are informed by a desire to preserve public health in the face of a pandemic. Striking down the quarantine order would seriously undermine her efforts and, based on the current record, would effectively disregard the balance of powers established by our federal system.” The decision is preliminary, and so there is little doubt that the Justice Department will press its arguments, safe in the knowledge that they will not have to suffer the consequences if our parents, children and neighbors are infected by asymptomatic out-of-staters coming to Maine. If today’s Justice Department had only considered its own prior actions, it would know better.