Media Mentions

Ron Klein survived the trench warfare of one disputed presidential election. As co-chair of the Al Gore campaign in Florida two decades ago, he watched lawyers brutally slug it out for weeks over vote recounts. “Republicans were very aggressive,” he recalls, “and they beat the Democrats in court.” Twenty years later, America is now staring down the barrel of an election that could make the shenanigans of Bush v Gore in 2000 look like child’s play. Many voting systems across the US are still rickety and unprepared for a massive surge of mail-in ballots. Cyberhacking, disinformation and the coronavirus are new threats. Most ominously, this time there is an incumbent in the White House many fear will sow doubt, thrive on chaos and simply refuse to accept defeat...But just as in 2000, there appears to be one guaranteed winner of the 2020 election: the legal profession. The looming dispute offers rich pickings. Laurence Tribe, a constitutional law professor at Harvard University, observed: “Both sides are lawyering up to the eyebrows. There are lawyers in every state, both for the Democrats and for the Republicans, trying, depending on how you view it, either to protect the integrity of the vote or to subvert it. “The worst part of that is people are essentially primed not to trust the process. They know it’s easily manipulated and that makes people more prone to listen to Trump and his minions when they say that the vote was stolen from them.”

Twice this week, the Supreme Court thrilled liberals and infuriated conservatives with its decisions, putting the spotlight once again on the man in the center chair, Chief Justice John Roberts. NPR's legal affairs correspondent Nina Totenberg reports. There is much more to come from the court in the coming weeks, but Chief Justice Roberts is clearly putting his stamp on the term so far. He didn't write the court's 6-to-3 opinion on LGBT employment rights, but he joined it and almost certainly assigned the opinion to fellow conservative Neil Gorsuch. Two days later, Roberts wrote the court's opinion blocking the Trump administration's attempt to revoke the Obama-era program protecting the so-called DREAMers from deportation. Senate Democratic leader Chuck Schumer, who voted against Roberts' confirmation, yesterday choked up on the Senate floor...Harvard law professor Richard Lazarus, who's known Roberts for decades, says that early in Trump's tenure, the chief justice ultimately gave the administration a break in the travel ban cases, barring travelers from some mainly Muslim countries. But since then, Trump has put the courts to a constant stress test. And as Lazarus sees the DACA ruling: "I think the central message here is the law applies to everybody, and that includes the president of the United States. And I'm not going to give you any breaks here."

A week in the life of Ben Crump — last week, to be precise. Tuesday in Houston to attend George Floyd’s funeral, where the Rev. Al Sharpton introduced Crump as “black America’s attorney general, probably because we don’t feel like we have one.” Wednesday in Washington to testify before the House Judiciary Committee on racial profiling and police reform. Thursday in Louisville, to convince the city council to pass a law in Breonna Taylor’s name banning no-knock warrants, which passed unanimously. Friday, a return to Houston. The coronavirus pandemic slowed much of the world but the killing of black Americans continued, often at the hands or bended knee of the police. And it didn’t slow Attorney Crump, as he’s known to clients and associates...Police brutality in America, Crump argues, dates its origins to colonial slave patrols in the early 18th century. But “videos have changed everything. They’ve shifted believability,” says Kenneth Mack of Harvard Law School. Generating publicity in advance of trial has a history among civil rights attorneys, including Marshall, Mack says. “Crump’s engaged in multimedia advocacy,” he says. “Putting pressure on state authorities to investigate cases that otherwise would not be investigated.” In a case like Floyd’s, while Minnesota is prosecuting the officers, Crump appeals to the House for reforms and the U.N. to intervene. The legal team often files or sues for public records, advocates for tougher sentencing and uses the media to challenge police accounts.

Calls for social justice and police reform have gained momentum as unrest continues across around the world in the wake of the killing of George Floyd. These calls are intersecting with the coronavirus pandemic. As part of our regular series discussing the coronavirus crisis, The World's health reporter Elana Gordon moderated a live conversation with David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

Today, the Harvard Law School LGBTQ+ Advocacy Clinic (HLAC) and the National Center for Lesbian Rights published a first-of-its-kind legal resource guide for transgender youth in the United States. The newly-released Trans Youth Handbook serves as a comprehensive legal resource guide that covers the rights of trans youth across a wide spectrum of situations, including identity documents, school, health care, non-affirming care environments, and work. The Handbook was written by HLAC’s Alexander Chen and NCLR’s Asaf Orr, who served as the lead authors for the resource, and was produced with the support of volunteers from Salesforce, Baker McKenzie, and Equal Justice Works. “Study after study shows that trans youth thrive when they are respected for who they are and affirmed in their gender identities,” said Alexander Chen, Esq., Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic. “I am delighted that this important resource will be available to trans youth and their families who are seeking to understand their legal rights.” “The Trans Youth Handbook gathers critical information transgender youth need to understand their legal rights in an easily accessible and digestible form,” said Asaf Orr, Esq., Senior Staff Attorney and Director of NCLR’s Transgender Youth Project. “We hope the handbook will give transgender youth the tools and confidence to advocate for what they need—and are entitled to—so they can thrive. We are excited to co-author this incredible resource and look forward to updating it as our laws and society continue to recognize the unique needs of transgender youth and protect this vulnerable group from discrimination.”

The police killing of George Floyd sparked widespread protests and reignited efforts across the U.S. to remove Confederate and other statues viewed as symbols of slavery and racism. In several cities, these tributes have been vandalized or torn down by protestors or removed by public officials. A high-profile decision to tear down a famous bronze figure of Robert E. Lee in Richmond, Va., was halted by a court challenge, which was extended indefinitely on Thursday. A 2018 report from the Southern Poverty Law Center found there are more than 1,700 monuments to the Confederacy still in public spaces. Annette Gordon-Reed, a historian of U.S. slavery, legal scholar, and member of the Presidential Initiative on Harvard and the Legacy of Slavery, spoke with the Gazette about the issue. Gordon-Reed is a professor of history and the Charles Warren Professor of American Legal History at Harvard Law School. She won the Pulitzer Prize and National Book Award for her explosive 2008 work, “The Hemingses of Monticello: An American Family.”

An op-ed by Jack Goldsmith and Marty Lederman: The U.S. government filed a civil suit on June 17 against former National Security Adviser John Bolton. It primarily seeks an injunction against the planned June 23 publication of Bolton’s book, “The Room Where It Happened: A White House Memoir,” and a “constructive trust” that would give the United States the right to all of Bolton’s profits from the book. The case has been assigned to Judge Royce Lamberth of the U.S. District Court for the District of Columbia. This post explains the case and offers our initial thoughts. The big news to us about the government’s case is that it’s weaker than we expected. We should emphasize, however, that these views are preliminary and incomplete. The case implicates a complex and in some ways unsettled area of law. The most important thing to understand about the case is that the government is suing Bolton for a breach of contract—two contracts, in fact. As the government’s complaint describes, the contracts in question are nondisclosure agreements (NDAs) that Bolton signed on April 5, 2018, when he entered government service as national security adviser. These NDAs are included as attachments to the complaint. The first NDA, Standard Form 312, contains obligations Bolton assumed as a condition of obtaining access to classified information generally, that is, a “security clearance.” Two are pertinent here.

An op-ed by Cass Sunstein: To reduce inequality and racial injustice, a lot of people are interested in making college available to all. The most ambitious proposals would cost a great deal of money — and taxpayers would have to foot the bill. Last week, the city of West Sacramento, California, did something fresh and creative — and cheap. It automatically admitted every one of its graduating high school seniors to a local two-year college, Sacramento City College. Here are the first words of the letter received by each graduate: “Congratulations on your graduation and your acceptance to Sacramento City College!” As Mayor Christopher Cabaldon put it, “Imagine no one in your family has ever gone to college, and you open up an envelope with a letter of admission.” He added that the new effort “will make it just as simple to go from high school to college as it is to go from kindergarten to first grade.” By itself, automatic admission costs almost nothing. It’s just a letter. But there’s every reason to think it will have a real impact. For many students, it will make all the difference, just because of its automatic quality. Mayor Cabaldon’s initiative builds on one of the most important findings in behavioral science: If you ask people whether they want to opt into something, you will get much lower participation rates than if you enroll them automatically, and ask them whether they want to opt out.

Police unions have long had a singular—and divisive—place in American labor. What is different at this fraught moment, however, is that these unions, long considered untouchable, due to their extraordinary power on the streets and among politicians, face a potential reckoning, as their conduct roils not just one city but the entire nation...To critics, all of this highlights that the disciplinary process for law enforcement is woefully broken, and that police unions have far too much power. They contend that robust protections, including qualified immunity, give many police officers a sense of impunity—an attitude exemplified by Derek Chauvin keeping his knee on George Floyd’s neck for nearly nine minutes, even as onlookers pleaded with him to stop. “We’re at a place where something has to change, so that police collective bargaining no longer contributes to police violence,” Benjamin Sachs, a labor-law professor at Harvard, told me. Sachs said that bargaining on “matters of discipline, especially related to the use of force, has insulated police officers from accountability, and that predictably can increase the problem.” ...Benjamin Sachs, the Harvard labor-law professor, argues that the union movement needs to join the push for police reform. “When unions use the power of collective bargaining for ends that we...deem unacceptable it becomes our responsibility—including the responsibility of the labor movement itself—to deny unions the ability to use collective bargaining for these purposes,” he wrote. “We have done this before. When unions bargained contracts that excluded Black workers from employment or that relegated Black workers to inferior jobs, the law stepped in and stripped unions of the right to use collective bargaining in these ways.” Sachs proposes amending the law to curb the range of subjects over which police unions can bargain, perhaps even prohibiting negotiations over anything involving the use of force.

An article by John Ketcham '21: Like living organisms, it is the cities that can adapt to changing circumstances that are best able to thrive. COVID-19’s effects on the way people live and work require cities to be flexible in developing new programs and modifying existing programs to suit the new norm. Once-daily commuters are now more likely to work remotely at least part of the time, which could make New York City office space less expensive. At the same time, old problems remain, notably the high cost of housing, driven in part by restrictive zoning polices that limit new housing supply and stifle economic opportunity. Unaffordable housing makes those in the lower- and middle-income brackets more likely to live in crowded dwellings — with ominous consequences in the age of COVID-19. As we look to revitalize our cities in the wake of the pandemic, a new application of an old tool, the transferable development right (TDR), can play an important role in fostering an abundance of urban opportunities for all residents. TDR programs work by granting the owners of properties designated for preservation, or “sending sites,” the ability to transfer unusable development potential to other properties within a defined area, termed “receiving sites.” This potential can be applied at receiving sites to exceed the maximum floor area that is buildable under the baseline zoning code. Sending site owners can either use their TDRs on receiving sites that they also own, or sell their TDRs to others.

Colorado renters will get more help with their rent payments and have an extra 20 days before non-payment of rent leads to eviction under an executive order signed this week by Gov. Jared Polis. But housing advocates say the order isn’t enough to keep thousands of people from being forced from their homes...The COVID-19 Eviction Defense Project, formed in March to provide legal representation for tenants facing eviction, estimated in April that between 300,000 and 400,000 people in Colorado are at risk of losing their homes by September, after local and federal eviction moratoriums and emergency unemployment benefits expire. Sam Gilman, a data analyst and co-founder of the COVID-19 Eviction Defense Project, said that is a conservative estimate because it assumed some people had savings to help cover rent or mortgage payments or had access to credit. Gilman said a “looming avalanche of evictions” will get worse when federal enhanced unemployment benefits turn off at the end of July. “That $600 a week that they’re getting on top of Colorado’s unemployment is a lifeline, and enables folks to pay their rent.”

The Supreme Court has extended a life-support line to some 650,000 so-called "Dreamers" on Thursday, allowing them to remain safe from deportation. ... TOTENBERG: At the end of the day, of course, the man of the hour is Chief Justice Roberts. Amid a politicized and polarized society, he repeatedly tries to portray the court as apolitical. He sees the growth of organizations on the hard right, like the Judicial Crisis Network, and on the hard left, like Demand Justice, each trying to stack the court with like-minded justices or to pack the court by expanding the number of justices. Harvard law professor Richard Lazarus has known the chief justice for decades. RICHARD LAZARUS: What these decisions this week underscore is we have a chief justice who is, plainly, working hard to try to demonstrate to the American people that the court, unlike the other two branches, is doing its job. He wants the American people to believe there's a thing called law, and a justice's job is to apply it.

An op-ed by Cass Sunstein: The Supreme Court’s decision to strike down the Trump administration’s attempted rescission of the program known as Deferred Action for Childhood Arrivals is, above all, a tribute to the rule of law. It vindicates a defining idea in administrative law and a central check on the administrative state: Agencies must not behave arbitrarily. ... The most important words in Chief Justice John Roberts’s opinion for the 5-4 majority are that “particularly when so much is at stake,” the U.S. “Government should turn square corners in dealing with the people.” The court’s conclusion was that the Trump administration failed to engage in reasoned decision-making. It did not turn square corners.

An op-ed by Noah Feldman: Chief Justice John Roberts has come to liberals’ rescue again, this time providing the decisive fifth Supreme Court vote to strike down the Trump administration’s rescission of DACA, the Deferred Action for Childhood Arrivals program. It’s morally uplifting that dreamers now won’t have to live under threat of deportation; and it’s unlikely that President Donald Trump will be able to rescind DACA, with new justifications, before he leaves office. But don’t think that Roberts was motivated by any liberal sympathy for dreamers. The best explanation for his ruling is that Roberts is fed up with Donald Trump’s disrespect for the rule of law. Now he’s standing up for the role of the judicial branch of government in checking careless, lawless action by the executive.

... Crump is an attorney of our times, as much a creature of the green room as the courtroom. In a nation lousy with lawyers, he has become the go-to advocate for families who have lost relatives to police brutality, as though his is the only name on the list. ... Police brutality in America, Crump argues, dates its origins to colonial slave patrols in the early 18th century. But “videos have changed everything. They’ve shifted believability,” says Kenneth Mack of Harvard Law School. Generating publicity in advance of trial has a history among civil rights attorneys, including Marshall, Mack says. “Crump’s engaged in multimedia advocacy,” he says. “Putting pressure on state authorities to investigate cases that otherwise would not be investigated.”

Today, the Harvard Law School LGBTQ+ Advocacy Clinic (HLAC) and the National Center for Lesbian Rights published a first-of-its-kind legal resource guide for transgender youth in the United States. The newly-released Trans Youth Handbook serves as a comprehensive legal resource guide that covers the rights of trans youth across a wide spectrum of situations, including identity documents, school, health care, non-affirming care environments, and work. ...“Study after study shows that trans youth thrive when they are respected for who they are and affirmed in their gender identities,” said Alexander Chen, Esq., Founding Director of the Harvard Law School LGBTQ+ Advocacy Clinic. “I am delighted that this important resource will be available to trans youth and their families who are seeking to understand their legal rights.”

At Harvard Law School, Professor Sabrineh Ardalan ’02 broke down the decision, saying that the court found the administration hadn’t adequately explained why DACA was unlawful.

David Harris and Ken Mack and other members of the Harvard community reflect on the significance of Juneteenth and what the holiday means to them.

... Members of the community, including students and alumni who are protected under DACA praised the Court’s ruling, among them Mitchell Santos Toledo, J.D. ’20, a recent Harvard Law School graduate who arrived in Cambridge not long after President Donald Trump announced his plans in 2017 to cancel the program, which had been instituted by President Barack Obama in 2012. “It was rough. You’re talking about moving across the country, starting this huge academic journey at a School at Harvard, and then having the only semblance of protection that you’ve known for the past five, six years sort of just yanked from underneath you,” said Toledo, whose name was listed in the documents submitted to the court in support of DACA. ... At Harvard Law School, Professor Sabrineh Ardalan broke down the decision, saying that the court found the administration hadn’t adequately explained why DACA was unlawful. “The court says that if the administration wanted to end DACA, it would have had to engage in a much more rigorous analysis, including of the reliance interests at stake, and it didn’t provide a reasoned explanation for its decision. And so, its decision to end the program was arbitrary and capricious because it didn’t go through those steps,” said Ardalan, who directs the Immigration and Refugee Clinic at Harvard Law School, which helps hundreds of people with undocumented status through a range of programs.

In a Q&A, Radcliffe Dean and Harvard Law Professor Tomiko Brown-Nagin reflects on the history and relevance of June 19, 1865:  "The antecedent historical event is the Emancipation Proclamation, which [President Abraham] Lincoln had signed in 1863, as the nation entered the third year of a civil war, declaring that persons held as slaves within the rebellious states were henceforth free. ...It is significant, in my view, for making a point that many civil rights scholars and scholars of social change and legal change often have made—and that is that freedom is a constant struggle. There’s no one moment in time that that would stand for the proposition that people are in fact free. It takes action over time. And every generation struggles to achieve freedom anew. But as they were in Texas, the vestiges of bondage and segregation remain intact.

In a major setback for President Trump, the US Supreme Court blocked the administration’s attempt to end a federal program that protects 700,000 immigrants nationwide and more than 5,600 in Massachusetts from being deported. ...“Given the tough questions asked at oral argument, it wasn’t at all clear which way the court would come out,” said Sabrineh Ardalan, director of the Harvard Immigration and Refugee Clinical program, which provides legal help to immigrants. “This is such a critically important victory and recognition that the Trump administration’s efforts to end DACA were unlawful.”