Media Mentions

Just two weeks after ruling that criminal juries in America were always meant to be unanimous, the U.S. Supreme Court agreed on Monday to swiftly decide whether its decision applies retroactively to thousands of inmates in Louisiana and Oregon who are serving time from earlier convictions by split juries. The decision suggested to prosecutors and some defense advocates that the high court may be trying to quickly put the retroactivity question to bed, probably in favor of keeping those older convictions intact...Defense advocates conceded that the court has made an unusual decision to tackle retroactivity upfront, choosing from several petitions that were pending before the high court while the Ramos case played out.  “Typically the (Supreme Court) allows such questions to percolate through the (state) courts because that approach allows the legal issues to be fleshed out fully before it arrives at the Supreme Court,” said Thomas Frampton, a Harvard Law School instructor and Louisiana defense attorney who has studied split juries in the state. “Here my concern is that the process seems to be short-circuited.”

The U.S. Supreme Court seemed to struggle Monday with rules for trademarking generic names that are combined with the .com phrase. Many justices seemed to agree with an attorney for Booking.com that a 132-year-old Supreme Court precedent probably doesn’t control the case. But they also sounded wary of granting an online monopoly over entire categories of goods and services, and that it could lead to a flood of litigation over similar sounding dot.com names...A longstanding rule of trademarks is that generic names cannot be registered. The PTO argues that adding .com isn’t enough to make a generic mark descriptive and potentially eligible for registration. The agency is invoking an 1888 Supreme Court ruling, Goodyear’s India Rubber Glove Mfg. v. Goodyear Rubber, that adopted a similar rule for the addition of “Company” or “Inc.” to a name. More recently, the U.S. Court of Appeals for the Federal Circuit has upheld the PTO’s refusal to register Hotels.com and Mattress.com, and the U.S. Court of Appeals for the Ninth Circuit has found AOL’s Advertising.com generic. The agency is getting amicus support from the Electronic Frontier Foundation and a group of intellectual property scholars led by Harvard’s Rebecca Tushnet, whose brief the justices brought up repeatedly Monday. The scholars caution against giving generic mark holders too big of a stick to ward off competitors and suggest that .coms can use unfair competition law to solve the problems they’ve identified.

An article by Nancy Gertner: Even with the coronavirus spreading in prisons, even though incarceration could be fatal and the crime rate during the pandemic has cratered, some officials will not listen to public health experts. In one federal courtroom, a defense lawyer argued for a client’s release before trial because he was an insulin-dependent diabetic, which, the Centers for Disease Control and Prevention says, increased his risk of infection; the judge refused, saying, as the lawyer told me, the CDC studies must be taken with a “grain of salt,” since it is a “novel” virus. The lawyer persisted: Given the fatality rate of COVID-19, the court should err on the side of caution; none of the defendant’s charges warranted death. To this judge, “erring on the side of caution” meant prison; release denied. While there may have been reasons for the decision, the judge’s comment has troubling echoes of President Trump’s disparagement of expertise. Worse, it shows a stunning lack of empathy. In a second federal courtroom, another judge refused pretrial release for the opposite reason. Defense arguments about COVID-19 were “systemic,” and the defendant had not shown he was especially vulnerable. Of course COVID-19 arguments are systemic; they are about a risk so severe that it has upended this country. As Columbia University scholars noted in an April 21 letter to Governor Andrew Cuomo of New York, with “medically vulnerable and forcibly proximate” prisoners, those risks require that the governor systematically release prisoners to ease pressures on space and staff.

The coronavirus pandemic has made collaboration more challenging for many workers, especially those who aren’t used to working from home. But it’s also made effective collaboration more essential than ever, as workers who are feeling anxious and disconnected need the sense of security that a common purpose provides...Team leaders need to be able to explain—to themselves and to everyone on their team—why each member is crucial, says Heidi Gardner, a fellow at Harvard Law School and author of Smart Collaboration. If all you need is a person’s buy-in, or a targeted use of their skills or knowledge, then don’t invite them to every meeting. Instead, find ways to keep them informed about progress, or bring them in for a specific task. For significant collaborations, Gardner favors a formal project launch where the leader spells out team objectives and individual roles. Individuals should be given the time to reflect on how their skills, knowledge or background can contribute to the team. They can also discuss their own personal work styles or communication preferences. As teams shift to remote work during the pandemic, colleagues are often working with new tools or facing new personal or professional expectations. This is a good opportunity to revisit the team “basics” that were determined during the project launch, Gardner says.

An article by Noah Feldman: It’s a tale of two mega-states — and probably of two Americas, each with a nearly opposite approach to Covid-19 restrictions. The governor of Texas allowed his stay-at-home order to lapse and restaurants, theaters and stores to reopen, along as long as they stay below 25% capacity. Meanwhile, California’s governor ordered a “hard close” of the beaches of Orange County. The divergence reflects an increasingly fundamental divide between different states’ attitudes toward the public health science about the coronavirus pandemic. Texas is following the most permissive conceivable interpretation of the evidence; California is deploying what is just about the most restrictive possible interpretation. It isn’t only because of different experiences with the virus. Although California has identified over 55,000 cases, and Texas has only 32,000, California is much larger, with about 10 million more residents. It is surely not a coincidence that their decision to go different ways reflects partisan differences in attitudes toward the coronavirus. This bodes ill for any sort of coherent or consistent national approach in the weeks and months ahead. Some ten states, including Texas, eased restrictions on May 1, with some four more scheduled for this week. Just about all of these are red states. Blue states, including many in the hard-hit Northeast, are maintaining restrictions, with some localities actually tightening their rules.

President Donald Trump moved to sack Health and Human Services (HHS) Principal Deputy Inspector General Christi A. Grimm late Friday night by announcing the name of her would-be replacement. The attempted Grimm firing was immediately controversial...It has been recently reported that Grimm’s office would further investigate whistleblower and other complaints about the Trump Administration’s handling of the pandemic. Harvard Law Professor Laurence Tribe also slammed the move but cautioned that it was not likely to go over well. “President Trump’s knee-jerk response to anyone who has vital information to report that might cast him or his minions in a bad light is to shoot the messenger,” he told Law&Crime via email. “That’s got to be wearing thin even with his most loyal, reflexive supporters. Even they have got to see by now that this self-important, truth-defying bloviator is endangering not only abstractions like truth and decency but their own lives and the lives and health of their loved ones.”

An article by Oliver Roberts '21: Amid a global pandemic, colleges nationwide have indefinitely shifted classes online. With students no longer using campus facilities and resources, they have created petitions and filed class-action lawsuits calling for tuition reduction and reimbursement. This discontent arises against the backdrop of a turbulent economy, historically high tuition costs and record levels of student loan debt. Now is the time to take definitive action on higher education reform to best position our next generation of students. But the current mainstream reform proposals — like free college and debt cancellation — engender uncompromising, hyperpartisan reactions, which inevitably lead to inaction. If we truly want to improve our higher education system, we must pursue a bipartisan approach that reduces tuition costs and student loan debt, expands college opportunities for high school students, and requires no increase in taxes. Currently, there is only one proposal that adequately fulfills these goals: Degree-in-Three reform. It calls for transitioning the college system away from the traditional four-year degree model to three-year degrees. Tuition would be reduced by 25 percent, students would have fewer loans and interest to pay back, more could afford college degrees, and they could seek employment and start earning salaries a year earlier.

On April 14, a group called the New England Ratepayers Association (NERA) filed a petition with the Federal Energy Regulatory Commission (FERC) calling on the Commission to supersede all state-level net metering program and make the mechanism federally-controlled. In response, The Center for Biological Diversity has filed a Freedom of Information Act (FOIA) request seeking records of FERC’s communications with NERA and the historically anti-net metering attorney representing the group...NERA is represented by Steptoe and Johnson LLP, with one of the attorneys listed on the petition being David B. Raskin. Raskin has been calling for FERC control of net metering for the better part of the last decade, previously on behalf of the Edison Electric Institute...It did not take long for this filing, as well as NERA’s ties to Raskin and the Edison Institute, to draw the attention of renewable energy advocates. Leading the charge came Ari Peskoe, director of the Electricity Law Initiative at Harvard University, who took to twitter to put the filing on blast. In the thread, Peskoe calls the timing of the filing “outrageous,” asserts that no new case developments have been made since the last time that Raskin raised this issue and accuses the Edison Electrical institute of attempting to “Hide behind this group calling itself a ‘Ratepayers Association’ that somehow has the same lawyers as EEI and major utilities.” ...The Center then goes on to cite the flagship argument against NERA’s petition, the same one raised by Peskoe, that if the measure were to be approved, the deployment of rooftop and community solar could be threatened. The Center also raises similar concerns to Peskoe, putting forth that the petition is founded upon “Thoroughly debunked industry talking points that solar customers are unfairly subsidized, ignoring both the enormous subsidies given to the fossil fuel industry and distributed clean energy’s power to curb pollution, improve the grid and otherwise advance the vital clean energy transition.”

An article by Jeannie Suk Gersen: During his confirmation hearing, in 2018, Brett Kavanaugh insisted that “one of the greatest moments in American judicial history” was the case of United States v. Nixon, in 1974. In a unanimous decision, written by Chief Justice Warren Burger, one of President Richard Nixon’s appointees, the Supreme Court rejected Nixon’s claim of absolute executive privilege, ordering him to comply with a judicial subpoena to turn over the White House tapes that would lead to his resignation. In an article from 2016, Kavanaugh wrote, admiringly, that the Justices “stood up to the other branches, were not cowed, and enforced the law.” In the coming months, several cases will test the Court’s strength in this regard. In each of these cases, President Donald Trump is attempting to block the examination of his conduct, by claiming that the chief executive is immune from various forms of investigation. At stake in these cases is the public’s ability to know about, and seek accountability for, misconduct. But, more important, they represent a gut check for our system of separation of powers. As the Supreme Court hears these cases, beginning this month and extending through the next term, it will enter what may prove to be among its greatest moments or its worst.

Monty Bennett’s sprawling hospitality company is the biggest known applicant of the government’s small-business relief program. The Texas conservative has remained unwilling to return his loans even as public anger builds over large companies getting the funds — a fact now drawing the scrutiny of a key lawmaker. Hotels and subsidiaries overseen by Mr. Bennett’s firm, Ashford Inc., have applied for $126 million in forgivable loans from the Paycheck Protection Program. According to company filings, about $70 million of that has been funded. By comparison, the average loan size in the program’s first round was $206,000. On Friday, Senator Chuck Schumer, the Democratic leader, sent a letter to the Small Business Administration demanding a thorough review of use of the program by Mr. Bennett’s companies, saying that he is “deeply concerned that large, publicly traded companies, like Ashford, may be exploiting” it...A board oversees the company’s operations, but it is filled with people with close ties to Mr. Bennett, including one director whose wife’s firm provides services to the company. Mr. Bennett recently married former board member Sarah Zubiate Darrouzet. A former Texas politician, Matt Rinaldi, to whom Mr. Bennett had donated, sits on one of the real estate investment trusts’ board. “The executive pay arrangements reflect a substantial disconnect between pay and performance, and raise serious corporate governance concerns,” said Lucian A. Bebchuk, director of the Program on Corporate Governance at Harvard Law School.

There is much that we still don’t know about the coronavirus and the disease it causes, Covid-19. But for all the mysteries that scientists are still working to solve, we have known from the start that this virus unleashes a brutal assault on the respiratory system, and is especially dangerous for people with lung and heart disease...A new Harvard study has further connected the dots, showing a link between exposure to air particle pollution and severe cases of coronavirus. Despite the evidence, the Trump administration has continued its quest to limit restrictions on the fossil fuel industry, which is the source of much of this pollution...The current PM 2.5 standard requires air particle levels to be limited to 12 micrograms per cubic meter. But the EPA’s draft review in September 2019 estimated that the current PM 2.5 standards are associated with 45,000 deaths annually, and tightening them to 9 micrograms per cubic meter could reduce deaths by up to 27%. Still, the EPA decided to leave the regulations untouched... “It’s a stunning decision by the EPA, but one can’t say that it’s unexpected, only because this administration has made several of these,” said Richard Lazarus, a professor of environmental law at Harvard Law School...In its new cost analysis, the EPA found that the costs of limiting these hazardous pollutants — estimated at between $7.4 billion and $9.6 billion annually — now outweigh the benefits...Lazarus says this could have big consequences when it comes to how the agency regulates other pollutants, and could open existing rules up to challenges in the courts. “They’re indicating that they’re going to measure costs and benefits in a very narrow way, which will reduce the level of benefit calculated as compared to the costs,” Lazarus said. “In future rulemaking, it will be harder to justify tougher hazardous air-pollution standards under the Clean Air Act.”

“Since January, the coronavirus has overtaken our lives and transformed our world,” said Larry Fink, chairman and CEO of BlackRock, in his January 2020 letter to the global investment firm’s shareholders. “For the private sector, it has upended how companies operate. … In my 44 years in finance, I have never experienced anything like this.” Yet, something more disruptive and longer lasting than COVID-19 is at work in BlackRock’s New York offices — and its implications may well extend beyond one financial firm and its shareholders. Astonishingly, BlackRock now threatens to vote against directors who don’t incorporate its views on environmental and social issues, the “E” and the “S” in ESG social-investing criteria...In their critique of the Business Roundtable’s recent adoption of such stakeholder capitalism, former Secretary of State George Shultz and his coauthors suggest that the demotion of profit and shareholder accountability should be seen as a response to a resurgence of a socialist impulse in American politics; it will result in decisions that sacrifice shareholder value and is a formula for endless legal wrangling and litigation. In a March 2020 working paper, “The Illusory Promise of Stakeholder Governance,” Harvard Law School’s Lucian Bebchuk and Roberto Tallarita conclude that the stakeholderism advocated by the Business Roundtable and BlackRock should be viewed “largely as a PR move.”

Northampton County Executive Lamont McClure said he knew what he wanted when it came to tracking and disclosing the county’s coronavirus-related deaths: useful public information but not enough to identify the dead and their grieving families. The problem, McClure said he learned, was finding that balance during what has become a public health crisis unlike any other. As the number of deaths rises in Pennsylvania, and especially the hard hit Lehigh Valley, it’s becoming clear that the amount of information the public can expect about local coronavirus cases is a decision largely left up to county and municipal officials, resulting in a patchwork system in which what you know depends on where you live. Over the long run, some bioethicists say, that could erode both trust in the government and affect the safety of the public. “People are being asked to really trust the government here and give up a lot of civil liberties," said Glenn Cohen, a professor of bioethics at the Harvard Law School. “As part of that large social contract, we should be willing to share as much information as possible.” ... The United States’ emphasis on local autonomy is part of its history and usually works fine, Cohen said. But it turns out that the patchwork approach is not helpful during a global pandemic, he said. “I would love to see the government come up with clear guidelines, such as, if you have X level of population, you need to report X specifics. State governments could take a leadership role here,” Cohen said. “I worry that some places might think there is something to hide and, therefore, discount what is being reported.” The debate about reporting more specific information on community infections and virus-related deaths is one that’s happening all over the country, Cohen noted.

He’s ordered New Jerseyans to stay home, banned gatherings, closed schools, shuttered nonessential businesses, moved elections, declared authorities can seize medical equipment from private companies. And his administration has frequently issued tickets to those who disobey, publicly naming them in the process. Gov. Phil Murphy says the goal of these temporary yet sweeping orders is to protect residents from the coronavirus, a fast-moving disease that has already killed more than 7,700 Garden State residents — more than any state but New York. But the sheer breadth of it all might have you asking: What gives him the right? ... Numerous legal experts say state laws instill governors with broad powers during crises and courts are likely to define their moves are constitutional as long as they’re narrowly crafted to protect the public’s health in a set period of time. “When a government is restricting liberty — fundamental liberty — a state has to have a very compelling state interest. You need a very, very good reason to do this,” said Noah Feldman, a law professor at Harvard Law School. “Stopping people from dying is a compelling interest.” ... Feldman, the Harvard professor, said to dovetail with the U.S. Constitution, governors’ actions must be “narrowly tailored" and “use the least restrictive means possible” to reach that objective. Given the size of New Jersey’s outbreak, Feldman said, it’s “overwhelmingly likely" a court would uphold Murphy’s stay-at-home order. “In any case of an emergency, courts would probably be pretty deferential to the governors because the court’s not gonna say, ‘We know better than public health officials in emergency circumstances,'” he said.

Constitutional lawyer and Harvard Law prof. Laurence Tribe discusses Sen. Mitch McConnell’s efforts to pack the courts with “people loyal to the Trump philosophy” amidst coronavirus.

An article by Annette Gordon-Reed: First, I want to say how deeply sorry I am about the circumstances that make this type of commencement address necessary. Students in their final year are special. They are on the cusp of finishing a multiyear journey that has inevitably helped transform them in ways anticipated and not. From my own experiences at college and law school, and as a parent of college graduates, I know that senior year can be a time of mixed emotions. I recall being excited about graduating but also slightly alarmed. “They’re going to make us leave!” I joked to my friends as we sat outside on a perfect spring day. Those final weeks of getting ready for graduation—wrapping up classes and making plans for my family to come up for the ceremony—helped ease the tension by forcing me to remember what those years had been about: preparation to move on in life. There is no way to hide from the stark fact that you have been deprived of that preparation. You have missed out on some things that I’m sure most of you were looking forward to greatly: having your parents—for the first time for some of you—get to see the place where you lived and learned, meet your friends and their families in person, and share the pomp and circumstance as you were sent on your way. But the sense of loss is, I suspect, about more than the graduation ceremony.

On Friday, front-line workers from Amazon, Instacart, Shipt, Target, and Whole Foods have organized to walk out of their jobs together over demands that their companies provide better pay, benefits, and protections...Despite being classified as essential workers in a crisis, they say, their companies treat them as disposable...That workers are now looking outside their own company isn’t surprising, some experts say. “The problem isn’t unique to Instacart, or Target, or Whole Foods. The problem is across essential work,” says Benjamin Sachs, a labor law expert at Harvard Law School...In other countries, there’s ample precedent for industrywide organizing among workers with similar jobs, like a delivery workers union, but not in the United States. “In fact, under existing law, it’s almost impossible to form unions and bargain at the level of the sector,” says Sachs. As a leader on Clean Slate for Worker Power, a project at Harvard Law School, he recently called for a change in labor law that would allow people who do similar types of work to band together and demand industrywide changes, either as a union or an official collective of workers. “You don’t fix cross-sectoral health and safety problems with just a group of workers at Whole Foods,” he says. Friday’s strike, Sachs says, highlights the pressing need for that kind of change. So far, companies like Amazon have successfully fought off efforts to form unions within their workforce. Withholding labor is only one part of a strike’s goals. The other part is rallying consumer action. “Even a small strike with a lot of attention can hugely influence consumers—and these are all entirely consumer-dependent companies,” says Sachs.

More than a dozen United Nations independent rights experts are slamming the world agency on its response to the cholera epidemic in Haiti that has left more than 10,000 dead and over 800,000 infected after being introduced by U.N. peacekeepers shortly after Haiti’s devastating 2010 earthquake. The group, which includes outgoing U.N. Special Rapporteur on Extreme Poverty and Human Rights Philip Alston, says the U.N.’s response and failure to compensate victims has fallen short. They are calling on U.N. Secretary-General António Guterres to urgently step up efforts to fulfill a U.N. pledge to help victims...Human rights advocates who have been fighting on behalf of cholera victims said the experts’ statement was conveyed in a formal communication process ordinarily used to question governments about human rights violations. It demonstrates escalating concern within the U.N.’s own human rights system that the organization is failing to uphold its obligations to cholera victims, they said. “We believe it is unprecedented for such a broad coalition of U.N. mandate-holders to send a communication that raises ‘past failures and ongoing violations’ by the U.N. itself,” said Sandra C. Wisner, a staff attorney with the Boston-based Institute for Justice & Democracy in Haiti. The experts’ letter to Guterres and the Haitian government was prompted by a formal complaint filed by IJDH and its Haiti affiliate, the Bureau des Avocats Internationaux, and the International Human Rights Clinic at Harvard Law School in January.

As elderly and vulnerable citizens continue to die from COVID-19 in closed-off long-term care centers around the country, many of their relatives have begged elected leaders to release the locations of these outbreaks. Their pleas have carried weight with governors in Georgia, New York, Oklahoma and Florida, among others, who mandated an accounting of where the virus had spread. Not in Texas. Despite more than 300 deaths in such facilities, Gov. Greg Abbott has not moved to make public where patients and caretakers have fallen ill or died. The state’s expansive medical privacy law has made Texas among the most opaque for releasing information about the spread of the coronavirus, even as deaths in these facilities surged nationwide. More than 10,300 elderly people in 23 states have died in long-term care centers, according to the most recent available government data analyzed by the Kaiser Family Foundation, a national health policy think tank...Pat Souter, a lawyer who represents health care institutions and oversees health care studies at Baylor University’s law school, said Texas entities were correctly following state law by not releasing detailed information. Other states providing such details “may not have the same level of protections,” he said, “or determined that such release was permissible under an exception to their laws.” Federal privacy law only creates minimum standards, agreed I. Glenn Cohen, who directs Harvard University’s Center for Health Law Policy, Biotechnology and Bioethics. But he said best practices encourage transparency during public health emergencies.

A prisoner in the Middleton House of Correction become Massachusetts' first county jail inmate to die of COVID-related causes, heightening concerns among advocates that not enough is being done to reduce incarcerated populations, test inmates or prevent the spread in the state penal system. Essex County Sheriff Kevin Coppinger said Thursday that the 41-year-old prisoner died Wednesday, was one of 60 in his facilities to have tested positive for the virus. The prisoner — whose name was not released — had other health issues and had been incarcerated in the jail since Feb. 18, county officials said...Mostly, advocates hope to see the governor and state Parole Board do more to release prisoners. In early April the state Supreme Judicial Court ruled that inmates who are awaiting trial and not charged with certain violent, serious offenses can seek release with a presumption that they we will be let go unless they are considered to be an “unreasonable danger” or a flight risk. The court also urged the state Department of Correction and the Parole Board to expedite parole hearings and increase the release of prisoners already approved for parole and those nearing the end of their sentences. Since then, there have been 654 prisoners released pursuant to the ruling, according to the ACLU data tracker. Only 15 of those were released from the state prison system. Katy Naples-Mitchell, a legal fellow at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, says she’s watching the number of cases rise with concern. “We are watching a pretty rapidly moving disaster,’’ she said. “It’s impossible to contain a virus like this inside.”

When Attorney General William Barr this week directed U.S. prosecutors to safeguard civil liberties amid state-level pandemic orders, he signaled Justice Department support for lockdown protesters by highlighting religious and economic rights. In a two-page memo, the nation’s top cop gave the clearest indication yet of the kind of battles federal prosecutors are likely to focus on. In doing so, Barr suggested the Department of Justice (DOJ) might back church groups and those seeking a swifter economic reopening while staying on the sidelines of fights over new limits on abortion and voting access... “One example of what Barr is concerned about is how churches have been singled out for different treatment,” (Gary) Bauer wrote in response to the Barr memo. “Why is it okay for people to gather at Walmart but not at church?” Legal experts say Barr might continue to press that question in court. “Religious liberty is a place where the DOJ in the Trump administration has been bringing more and more affirmative litigation on behalf of church groups and other religious voices,” said Glenn Cohen, a professor at Harvard Law School. “I will be curious to see if this becomes more than a signal and if the 93 U.S. attorneys begin bringing more litigation.”