Media Mentions

In the 1930s, at the time of the writing of the Wagner Act—the law which grants workers the right to form unions and collectively bargain— union organizing took place during shift changes on factory floors and over beers in union halls. The law protected workers from retaliation for this type of in-real-life organizing, and it still does...In a new report “Clean Slate for Worker Power,” released last Thursday by Harvard Law School’s Labor and Worklife Program, experts argue that U.S. labor law is obsolete and in need of a massive overhaul to meet the needs of workers organizing in modern times... “When [legislators] looked out at the economy in 1935, they saw factories where people worked similar shifts at similar jobs,” Benjamin Sachs, an author of the report and a professor of labor at Harvard Law School, told Motherboard. “But the modern workplace is fissured. Now we have gig workers and temp workers and franchised workers and freelancers. Empowering workers in the modern economy is different.” “There is no actual water cooler anymore,” Sharon Block, another author of the report, and director of Harvard’s Law School’s Labor and Workplace program, told Motherboard. “We recommend that employers should have to create digital meeting spaces, virtual water coolers, where there’s a safe space for workers to talk with each other about their collective interests.”

Justice Elena Kagan calls it her hobbyhorse. Justice Sonia Sotomayor says it is a kind of malpractice. Criminal defense lawyers, they say, often fail to put aside ambition and vanity when their cases reach the Supreme Court. These lawyers, the justices say, should step aside and let Supreme Court specialists handle the arguments. “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants,” Justice Elena Kagan said at a Justice Department event in 2014...Making sure criminal defendants have consistently able lawyers at the Supreme Court would be a start. But a new article published in the University of Pennsylvania Law Review by Professors Daniel Epps of Washington University in St. Louis and William Ortman of Wayne State University says more is needed...The article builds on earlier work. A 2016 article in the Minnesota Law Review by Andrew Manuel Crespo, a law professor at Harvard, proposed a partial fix. It urged the justices to appoint expert lawyers to argue as friends of the court alongside the defendants’ own lawyers.

The Environmental Protection Agency has made it easier for cities to keep dumping raw sewage into rivers by letting them delay or otherwise change federally imposed fixes to their sewer systems, according to interviews with local officials, water utilities and their lobbyists. Cities have long complained about the cost of meeting federal requirements to upgrade aging sewer systems, many of which release untreated waste directly into waterways during heavy rains — a problem that climate change worsens as rainstorms intensify...Starting in the 1990s, the E.P.A., along with the Department of Justice, began entering agreements that let cities like these avoid fines by committing to detailed plans for reducing or eliminating the overflows. Those agreements, called consent decrees and approved by judges, impose rigid timelines for the work. Under past administrations, the E.P.A. would sometimes let cities modify these deals, according to Cynthia Giles, who led the agency’s Office of Enforcement and Compliance Assurance under President Obama. But the bar was high, she said, citing the example of a major unforeseen disaster that made timely compliance too difficult. “A consent decree is not the opening bid of a negotiation,” said Ms. Giles, who is now a guest fellow at Harvard Law School. “It’s a legally binding commitment that is ordered by a federal court.”

The U.S. Supreme Court last week agreed to hear Colorado’s appeal of a federal court ruling that allows presidential electors to ignore the will of the people and back the candidate they want. Colorado Attorney General Phil Weiser and Colorado Secretary of State Jena Griswold last October petitioned the court to hear the case, hoping to avoid chaos in November...Baca, one of Colorado’s nine electoral voters, tried to cast his ballot for then-Ohio Gov. John Kasich, a Republican, instead of Clinton as part of an attempt by a handful of electors across the country to block Republican Donald Trump from becoming president...Two other electors – Polly Baca and Robert Nemanich – intended to follow Baca’s lead but ultimately did not. The three have battled the Colorado Secretary of State’s Office in court since the 2016 election. They are represented by Equal Citizens, led by Harvard Law professor Lawrence Lessig. The three have been referred to as “faithless” or “Hamilton” electors, the latter referring to U.S. founding father Alexander Hamilton, who helped outline the role of presidential electors in the Constitution. “We are glad the Supreme Court has recognized the paramount importance of clearly determining the rules of the road for presidential electors for the upcoming election and all future elections,” Lessig said in a written statement. “My team and I will get right to work on our briefs, and we look forward to a full and fair hearing.”

What if it were President Barack Obama who was the subject of the Senate impeachment trial? How would we feel then? Cass Sunstein, a professor at Harvard Law School, suggests a question along those lines in his book “Impeachment: A Citizen’s Guide.” It’s one of several thought experiments that I suggest in order to step back from the hurly-burly in the Senate and interrogate our own principles and motivations. The first approach, as Sunstein puts it, is this: “Suppose that a president engages in certain actions that seem to you very, very bad. Suppose that you are tempted to think that he should be impeached. You should immediately ask yourself: Would I think the same thing if I loved the president’s policies, and thought that he was otherwise doing a splendid job?” Alternatively, if you oppose impeachment and removal, Sunstein suggests you ask yourself: “Would I think the same thing if I abhorred the president’s policies, and thought that he was otherwise doing a horrific job?” In practical terms, this amounts to: What if it were Obama who had been caught in this Ukraine scandal?

An article by Nancy Gertner: Attorney General William P. Barr’s support for an expansion of mandatory minimum sentences for federal drug crimes involving fentanyl analogues should come as no surprise given his long record of hawking incarceration as a solution to our drug crisis. We have seen this movie before; it does not end well. Illicit analogues are synthetic compounds that are substantially similar to Schedule I or II substances in chemical structure. Some analogues are dangerous substances with a substantial potential for misuse. Others are benign or helpful. For example, naloxone, a life-saving antidote to opioid overdoses, is an analogue of morphine, a powerful opioid. Scientists believe that an antidote for fentanyl overdoses could well be within the substances scheduled under a proposal pending in Congress.

An article by Noah Feldman: This weekend marks a pivot point in President Donald Trump’s Senate impeachment trial. Until now, the impeachment narrative has been driven overwhelmingly by the president’s critics. It started with the impeachment inquiry in the House of Representatives, culminated in the dramatic and almost purely party-line impeachment vote; and it continued with the skillful presentation of the prosecution’s case by the House managers over three long days in the Senate. But all that focus on Trump’s wrongdoing is now over. Trump’s lawyers will have the floor for three days of their own. And after that, if no witnesses are called, the trial will barrel towards a final vote — one the president is expected to win easily. The consequences of the pivot to Trump’s defense team will be deeply significant — both for the politics of the next nine months leading to the 2020 presidential election, and for the construction of American history in the future.

The state has received more than $160 million in funding from federal immigration authorities since 2012, mostly in exchange for keeping and transporting ICE detainees in jails run by four Massachusetts sheriff’s departments, a Globe review has found. The sum, brought into the state’s coffers through controversial contracts with US Immigration and Customs Enforcement, has raised the eyebrows of some advocates and immigration attorneys who oppose the agreements and think there are better alternatives. The sheriff’s offices, meanwhile, have defended the arrangements, with at least two departments saying their relationship with ICE has made Massachusetts residents safer...Philip L. Torrey, managing attorney for Harvard Immigration and Refugee Clinical Program, said that immigration detention has not always been a part of the country’s immigration enforcement system. “It’s concerning that in just the last few decades it has become the centerpiece of immigration enforcement system,” said Torrey. Torrey’s program recently completed a study that found that there was a “potentially flawed accounting system across Massachusetts sheriffs’ offices that fails to fully account for all of the costs associated with immigration detention at their facilities in a consistent and comprehensive manner.” “There is a concerning lack of transparency, accountability, and oversight in the immigration detention systems in Massachusetts,” read the report.

The Pentagon will reopen a records database that helps service members who are appealing a less-than-honorable discharge, a veterans group said Friday. The National Veterans Legal Services Program had sued the Defense Department over a lack of access to the database, arguing that the military had been breaking federal law since April. The database contains decisions by military review boards that grant or deny a veteran’s request to upgrade a discharge. Veterans and their lawyers study those decisions in hopes of building successful arguments of their own...Dana Montalto, a clinical instructor at Harvard Law School’s Veterans Legal Clinic, told The Associated Press earlier this month that post-9/11 vets have the highest rate of receiving less-than-honorable discharges. She added some veterans can wait years to get a decision from a military review board.

An op-ed by Cass Sunstein: Have you ever shopped online for something (say, a hotel room) and selected an option with an excellent price only to learn, at the time of checkout, that the price is much higher than originally advertised? That happens a lot. A key reason is that advertised prices often exclude taxes and fees. Even if there is some disclosure of that fact (“taxes and fees not included”), consumers might not pay attention. Having initially seen a reasonable price and settled on their choice, a lot of them just put in their credit card number even if, at the final stage, they are shocked to see the unexpectedly high cost. In these circumstances, new research suggests that disclosure regulation can do a lot of good.

An op-ed by Noah Feldman: If ordinary rules of precedent were being followed, there would be no argument over whether witnesses should be allowed at the Senate impeachment trial of President Donald Trump. Every single Senate impeachment trial, ever, has had witnesses. The precedent is unanimous. But the painful truth is that precedent carries much, much less weight in impeachment than it does in other constitutional contexts, whether in Congress or the courts or even within the executive branch itself. That’s unfortunate, because precedent helps make procedures — like how a trial works — fair and legitimate.

Kansas cannot bar people from conducting undercover investigations on factory farms, the a federal court in Kansas ruled Wednesday. For nearly 30 years — since 1990 — a Kansas state law made it illegal to take photographs or record video in a factory farm or slaughterhouse “with the intent to damage an enterprise conducted at the animal facility.” ... Animal advocates have responded with caution. “None of the major animal protection groups have done anything in Iowa in the last seven years,” Harvard’s Chris Green told me last year. The ag-gag laws worked. And when Iowa’s law was overturned, animal activists went back to work in the state. (Iowa has since tried another ban, but that one has been held up in court as well.)

US President Donald Trump's position on climate change has been in the spotlight again, after he criticised "prophets of doom" at the World Economic Forum in Davos. At the event, which had sustainability as its main theme, and activist Greta Thunberg as its star guest, Mr Trump dismissed "alarmists" who wanted to "control every aspect of our lives" - while also expressing the US's support for an initiative to plant one trillion trees....Meanwhile, Joseph Goffman, executive director of Harvard's Environmental Law Programme, argues that Mr Trump "believes nothing on climate change - he's a climate nihilist". Mr Trump's position is based on his need to appeal to "the part of the Republican establishment that rejects climate policy," Mr Goffman, who previously worked as Democratic staff director on the Senate environmental committee, adds.

The basic facts about inequality in the United States — that for most of the last 40 years, pay has stagnated for all but the highest-paid workers and inequality has risen dramatically — are widely understood. What is less well-known is the role the decline of unionization has played in those trends. The share of workers covered by a collective bargaining agreement dropped from 27 percent to 11.6 percent between 1979 and 2019, meaning the union coverage rate is now less than half where it was 40 years ago. ... The good news is that restoring union coverage — and strengthening workers’ abilities to join together to improve their wages and working conditions in other ways — is therefore likely to put at least $200 billion per year into the pockets of working people. These changes could happen through organizing and policy reform. Policymakers have introduced legislation, the Protecting the Right to Organize (PRO) Act, that would significantly reform current labor law. Building on the reforms in the PRO Act, the Clean Slate for Worker Power Project proposes further transformation of labor law, with innovative ideas to create balance in our economy.

For both better and worse, Teamster president Jimmy Hoffa was one of the most consequential union leaders of the 20th century. Unlike his very few peers (the Auto Workers’ Walter Reuther and the Mine Workers’ John L. Lewis could both claim comparable historic impact), he also has become the subject of three Hollywood pictures—1978’s F.I.S.T., with Sylvester Stallone ineptly playing a character modeled on Hoffa; 1992’s Hoffa, with Jack Nicholson in the title role; and now Martin Scorsese’s The Irishman, with Al Pacino as the Teamster president. ... In his new book In Hoffa’s Shadow, Jack Goldsmith writes that the FBI now believes Hoffa’s killer was a Detroit-based young mobster who died just last year. But whatever Sheeran’s tenuous claims to veracity, his is a tale that Scorsese couldn’t easily resist.

On one level, the new report,  Clean Slate for Worker Power:  Building a Just Economy and Democracy—released Thursday and written by more than 70 professors, labor leaders and activists—is an ambitious menu of recommendations for how to remake America’s labor laws. ...Professor Sachs said, “The dire assessment by political scientists is that today in America the majority does not rule.” He added, “As economic wealth gets more and more concentrated, the wealthy build greater and greater political power that they, in turn, convert into government policy that enables them to build even more wealth, and on, and on.”The report is a wake-up call that something bold, even radical, needs to be done. Its authors see radical inequality and recommend radical solutions that seek to make the capitalist system fairer to workers, by giving them more power and say on the job, in politics and in policymaking. As Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School and also one of the report’s main authors, put it, “The problem of inequality is on a different scale than in other countries, and the solutions have to be on a different scale.”

On Monday, President Trump’s chief lawyers in his impeachment trial, Jay Sekulow and Pat Cipollone, submitted a 110-page brief to the Senate laying out the case for his acquittal. The articles of impeachment, they say, are “an affront to the Constitution” brought about by a “rigged” “crusade” against a president who “did absolutely nothing wrong.” ... There are a select few scholars, however, who say the consensus should be reconsidered. One is Nikolas Bowie, an assistant professor at Harvard Law School. In 2018, Mr. Bowie suggested in the Harvard Law Review that impeaching a president without any statutory justification conflicts with a fundamental principle of American law: that a crime cannot be retroactively defined. Impeachment without an underlying legal violation also risks setting a dangerous precedent that “would apply not just to someone as unpopular as President Trump but also to future presidents whose policies happen to misalign with a congressional majority,” he wrote. “The philosophical defense that the president should only be impeachable for a defined statutory crime is probably the strongest defense available to Trump’s supporters,” writes Noah Feldman, a professor at Harvard Law School who testified in the House impeachment inquiry.

An op-ed by Jessica Fjeld is the assistant director of the Harvard Law School Cyberlaw Clinic at the Berkman Klein Center for Internet & Society: When it comes to AI, Big Tech wants a hand in developing regulation. In a January 20 piece for the Financial Times calling for the regulation of the technology, Google CEO Sundar Pichai argued that his company’s artificial intelligence principles could be used as a template for future laws. Brad Smith of Microsoft said the same in a talk at the World Economic Forum earlier this week. Google and Microsoft are right that it’s time for government to step in and provide safeguards, and that regulation should build on the important thinking that’s already been done. However, looking only to the perspectives of large tech companies, who’ve already established themselves as dominant players, is asking the fox for guidance on henhouse security procedures. We need to take a broader view.

Anderson Cooper interviews Noah Feldman on the House managers case laying out abuse of power charge against President Donald Trump. ... "Everyone who is involved with this impeachment process has to understand, even if the outcome is the one most people predict, that's not what really matters on deepest level. It would be nice if Senators would come around, but that Trump is not just impeachable, but deserves to be removed from office. But even if they don't, it's important for the future of American democracy that others in the future, future generations, will be able to look back, watch this footage, watch the commentary, read the transcripts and see exactly what Donald Trump did and that he was impeached for it, to send the message that this kind of conduct just isn't okay, no matter what two-thirds of the Senate decides."

Stephen Colbert tore into the arguments used by President Donald Trump’s defenders, who claim abuse of power isn’t impeachable because it’s not a crime. “You don’t have to break the law to get fired,” the “Late Show” host said on Monday. “It may not be against the law for you to dunk your junk in my cappuccino, but I still want you fired. America does not run on junk-dunking.” Then, Colbert cited Harvard constitutional law scholar Laurence Tribe, who said the idea that only criminal acts are impeachable has “died a thousand deaths” in legal writings, yet “staggers on like a vengeful zombie.”

American Labor Law is broken, argues a report released today by Clean Slate for Worker Power, a project of Harvard Law School’s Labor and Worklife Program. So, the report urges, the nation’s labor laws need to be fundamentally rewritten to make it easier for workers to organize, to have a voice in corporate decisions that affect them, and to participate in democracy—all essential to address larger concerns about economic and political equity in a divided, polarized society. At bottom, the project aims “to shift power from corporations to workers,” said Sharon Block, executive director of the Labor and Worklife Program, at the project’s launch Thursday morning. The ambitious, 100-plus page report lays out an agenda for a revitalized, robust labor law for the twenty-first century. ... “The richest 20 people in this country have more wealth than half the nation put together,” said Kestnbaum professor of labor and industry Benjamin Sachs, the co-leader with Block of Clean Slate. “It would take an Amazon worker about 4 million years working full-time to earn what Jeff Bezos now has. This vast disparity in material wealth means that millions of American families struggle just to barely get by.