Media Mentions

Massachusetts officials suing Immigration and Customs Enforcement over warrantless arrests at state courthouses got a boost Thursday from Harvard Law School's immigrant and refugee clinic, whose leadership said state courts are being illegally forced to carry out a federal agenda not enumerated in the Constitution and to sideline Sixth Amendment trial rights. The HLS Immigration and Refugee Clinical Program and its leaders, alongside professor Nikolas Bowie, filed the amicus brief Thursday in support of two Boston-area district attorneys, a community organization and a public defender group jointly suing ICE over its warrantless arrests at courthouses where noncitizens have gone for various reasons, including to serve as witnesses in criminal trials. They are currently fighting ICE's motion for dismissal. "The federal government's asserted power to conduct warrantless courthouse arrests is not reasonably necessary for exercising any enumerated power, and the resulting disruption of state court proceedings and interference with the commonwealth's duty to provide access to its courts fails to properly accommodate state interests," the clinic wrote.

An op-ed by Todd Carney ’21: Last month, a dual American and Egyptian citizen named Moustafa Kassem, who had been arrested in Egypt, died in an Egyptian prison. Kassem’s death occurred despite the fact that paperwork had been provided to Egyptian prison authorities that should have secured Kassem’s release. Prior to Kassem’s death, the US had been making diplomatic overtures from levels as high as Vice President Mike Pence, but these overtures went nowhere. While there is a significant political controversy around the failure to release Kassem, it also raises interesting legal questions in terms of whether Egypt violated international law and if so what can be done to hold Egypt accountable. This post seeks to answer those questions.  

An article by Annette Gordon-Reed: Thomas Jefferson began life in a monarchy, under the reign of George II, in one of Britain’s North American colonies—Virginia. In this monarchical system everyone knew his or her place, with little expectation of being able to move very far outside of it. Though the American provincials were not on a par with the aristocrats in the mother country, they had developed their own version of hierarchy. Jefferson, by dint of his family ties, was born at the top, and there would have been no reason to suspect that he would ever come to be associated with the idea of equality. This is especially so given that he was born into a slave society, and his family fully participated in the institution of slavery. From an early age, he would have understood what unequal status meant, with his lifelong involvement in the most extreme version of it as a slave owner. The equality of humankind was simply not an expectation in his world.

An op-ed by Nancy Gertner: When Department of Justice prosecutors told the judge in Roger Stone’s case that their sentencing recommendation — consistent with the Federal Sentencing Guidelines — was seven to nine years following Stone’s November conviction on seven felonies related to obstruction, witness tampering, and lying and investigators, President Trump tweeted that this was a miscarriage of justice coming from “rogue prosecutors.” The next day Attorney General William Barr apparently directed his office to file an amended memo to the court, undercutting the first, recommending less time. (The four prosecutors quickly resigned from the case, one from the Justice Department entirely.) The memo reflects the DOJ’s empathy for Trump’s longtime adviser Roger Stone, 78, who had been facing substantial prison time.

An op-ed by Cass Sunstein:  Bernie Sanders has said that he will support the Democratic Party’s presidential nominee, no matter who he or she is. But some Democrats worry that a lot of his supporters will not work or even vote for any other candidate, whereas the backers of his Democratic rivals will enthusiastically work or vote for anyone the party nominates, including Sanders. It is too soon to know whether this worry is justified. But we do know that in 2016, many of Sanders’s supporters were extremely angry that Hillary Clinton won the Democratic nomination, and they refused to support her.

An op-ed by Noah Feldman: Maybe you’ve heard: Boy Scouts of America is filing for bankruptcy to put an end to the sexual abuse lawsuits it is facing. On one level, it’s business as usual. From makers of IUDs in the 1980s to opioid manufacturers today, it’s become standard for corporations liable for harm on a large scale to take advantage of the protection of bankruptcy. The victims get some compensation while the organization gets legal clarity and finality. Yet on closer examination, there’s something strange, even troubling about using laws designed to resolve business meltdowns to address the social ills caused by nonprofit entities that are meant to do good, yet in fact impose egregious harm.  

Amy Berman Jackson is no stranger to working under pressure. As a federal prosecutor three decades ago, she was in the final hours of a momentous murder trial when prospective jurors for her next trial — an armed robbery case against three defendants — showed up in the same courthouse. ... “No judge should have to face this kind of pressure,” said Nancy Gertner, a Harvard Law School professor and former federal judge. She described Mr. Trump’s criticism of Judge Jackson as “preposterous.” But “nobody who knows her thinks she cannot handle it,” Ms. Gertner said. “She is tough and independent and very smart. She will steel herself against political influence and focus on the facts and the law.”

A lawsuit filed Wednesday alleges that new Department of Education rules, set to take effect in July, will make it more difficult for scammed students to write off their student loans. ... The lawsuit was filed by the student-advocacy nonprofit, the Project on Predatory Student Lending and Public Citizen Litigation Group, on behalf of the New York Legal Assistance Group (NYLAG), which provides free legal services, in the U.S. District Court for the Southern District of New York. NYLAG is represented by Public Citizen Litigation Group, the legal arm of Public Citizen, a consumer advocacy group, and the Legal Services Center of Harvard Law School’s Project on Predatory Student Lending.

If FERC does reverse itself and apply mitigation rules more broadly, it will have hampered clean energy participation in the three markets targeted by the Department of Energy’s 2017 grid resilience proposal, which would have provided ratepayer funded contracts to coal, nuclear and oil plants in those regions. FERC unanimously rejected that DOE plan in early 2018, but critics say the MOPR orders will do more to support fossil fuel plants because the price floors are more likely to withstand legal challenges than the poorly-designed DOE plan. States may not stand idly by. New York utility regulators already have a proceeding open that could pull them from the NYISO’s capacity market, putting the state in charge of long-term generation planning once again. “The more aggressive FERC Is on these issues, the more likely it will lead to the demise of the New York ISO capacity auction,” said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program.

There’s little pressure for corporations to accede to labor’s demands when Trump has hamstrung enforcement. ... This month, Democrats in the House passed a bill to broaden the right of employees to organize and strike to include independent contractors, who number between 10.5 and 15 million, and to increase the penalties for companies that violate the N.L.R.A. In January, Clean Slate for Worker Power, a coalition of more than 70 participants from labor, academia and nonprofit organizations brought together by Harvard Law School’s Labor and Worklife Program, released proposed reforms that would extend the N.L.R.A.’s protections to agricultural and domestic workers as well as independent contractors and also give all workers a say in how companies are run. One of Clean Slate’s most sweeping recommendations is for sectoral bargaining, which is common in Scandinavia, and makes it legal to negotiate a contract across an industry rather than one company at a time.

An op-ed by Noah Feldman: The president of the United States isn’t a king, and he isn’t above the law — or so constitutional law professors like me keep reminding everybody. But the painful truth is that there is one exception to this truth: the pardon power, exercised this week by President Donald Trump to free or absolve several white-collar criminals. The presidential power to pardon is a holdover from British monarchy. And pardoning by definition goes above and outside the legal system. The pardon power therefore poses a structural threat to the republican character of the U.S. government.

President Donald Trump’s associate Roger Stone will be sentenced Thursday on obstruction and perjury charges by a judge who has come under attack by the president as he assails the case against Stone.  ...“She is made of steel,” said retired Massachusetts federal Judge Nancy Gertner, who is now a professor at Harvard Law School. ...Gertner said that with his tweets Trump “is creating this cacophony that (Jackson) has to then work not to listen to.” “She's really strong, and she's really smart,” Gertner said. “And being smart makes all the difference in the world because you then know what the law requires.”

An op-ed by Ashley Nunes: Liberals love electric cars. The rest of America, less so. Just two percent of autos sold annually are powered by electricity. Democrats, meanwhile, are too busy trying to curb gasoline use altogether to care. Sen. Bernie Sanders (I-Vt.) wants to phase out traditional car engines in favor of electrified ones. So do former vice president Joe Biden, Sen. Elizabeth Warren (D-Mass.) and former New York mayor Mike Bloomberg. Standing in the way, however, is cost. Electric cars are pricier than their gasoline-powered counterparts. No matter. Democrats promise to underwrite the added cost by doling out billions in taxpayer cash to, well, taxpayers, if they go electric.

The Trump administration is going to send Border Patrol agents to “sanctuary” cities around the country, including the Boston area. The Department of Homeland Security said the extra personnel will help ICE agents with immigration enforcement. The Trump administration is going to send Border Patrol agents to “sanctuary” cities around the country, including the Boston area. The Department of Homeland Security said the extra personnel will help ICE agents with immigration enforcement. “This is like a SWAT team basically coming in,” said Philip Torrey of Harvard Law School. “These are folks with sniper certifications, they’re really designed for counter-terrorism, going after significant drug cartels.” Torrey believes the plan creates a bigger risk to public safety. “It has a chilling effect in terms of people reporting crimes, folks being willing to go to the police,” he said. DHS said the officers “have also been trained in routine immigration enforcement actions which is what they have been asked to do.” Sanctuary cities in the area include Boston, Somerville, Cambridge, Newton and Lawrence.

A podcast by Noah Feldman: Stacey Abrams talks about how to create lasting social change, her thoughts on 2020, and her plans for the future.

President Donald Trump threatened to file an expansive series of lawsuits aimed at various people involved in former special counsel Robert Mueller’s long-running probe into Russian-based electoral interference, corruption and obstruction of justice. As is typical of the Trump White House, those threats were issued during an early Tuesday morning Twitter screed....Noted anti-Trump critic, Harvard Law Professor Laurence Tribe, also weighed in—accusing Trump of crass hypocrisy by threatening legal action in light of the 45th president’s decidedly mercurial approach to abiding by the law itself. “For someone with no regard for the rule of law, Trump sure is enamored of invoking the law almost as often as he lies,” Tribe said in an email. “To him, it apparently makes no difference at all whether his lawsuits have even a smidgen of merit. He knows he can wear many litigants down just by making threats. When someone calls his bluff, he often folds. He is, in short, a serial abuser of the legal system just as he has become a serial abuser of the presidential power with which he was sadly entrusted.”

Local officials and advocates are condemning the Trump administration’s decision to send federal border patrol agents to Boston and other so-called sanctuary cities in coming weeks to support immigration enforcement, calling the move an intimidation tactic that could harm public safety. “None of this makes us safer,” said Suffolk District Attorney Rachael Rollins. The initiative, she said, aims “to strike fear and terror throughout our immigrant communities." ...Dispatching border patrol agents to Boston would represent “an incredible waste of resources,” said Phil Torrey, director of the Crimmigration Clinic at Harvard Law School. The tactical unit, Torrey said, is “designed for counterterrorism-type operations or large safety concerns like the Super Bowl.” It typically hasn’t been used for local enforcement efforts, he said. “It’s yet another example of the Trump administration using scare tactics on municipalities that don’t abide by detainers,” Torrey said. Detainers are requests from federal authorities for law enforcement to hold an individual in custody. Boston, Torrey said, has a policy that states Boston police are not authorized to abide by a request to hold someone solely for immigration purposes.

On a drizzly San Francisco day in December, Eric Ries is stationed inside the Succession-worthy offices of Orrick, Herrington + Sutcliffe...The 41-year-old’s 2011 bestseller, The Lean Startup, introduced the masses to product/market fit, minimum viable product, and the pivot. It also vaulted Ries into nerd celebrity status, a coach and mentor to Silicon Valley’s elite...Ries is now focused on his most ambitious — and risky — venture yet: a new stock exchange called the LTSE, or Long-term Stock Exchange...The LTSE is a controversial new exchange that, Ries argues, will create a fundamental shift in the capital markets...It turns out that the very tools of short-termism that Ries rails against — activist investing and short selling (often deployed in combination) — serve a purpose. “Activist investors and short sellers each play an important role in our market ecosystem,” says Jesse Fried, a Harvard Law professor who focuses on corporate governance and security regulation. “The former exerts a disciplining effect on managers, and the latter improves price accuracy.” Take that away, critics argue, and you have a sloppy system where power resides disproportionately in the hands of founders and a select group of institutional investors who can afford to buy and hold, consolidating power so they can effectively ignore other shareholders as they pursue bad ideas.

On Tuesday, President Trump pardoned or commuted the sentences of 11 people he said had served enough time or been treated unfairly. The moves come as the president has sharply criticized the Department of Justice for its handling of the case of longtime Trump advisor Roger Stone. William Brangham talks to two former judges, Harvard Law School’s Nancy Gertner and University of Utah’s Paul Cassell.

On March 24, the Supreme Court is scheduled to hear one of the most momentous tech cases in decades...The case is Google v. ­Oracle, and it turns on who owns scraps of computer code known as APIs. Short for application programming interfaces, APIs allow one computer program to talk to another by letting, for instance, a weather app pull live temperatures from a third party and then display them on a map. APIs are an essential building block of the digital economy, and in the blockbuster case Oracle says Google committed copyright infringement by using its APIs without permission...A final wild card in the case is the fact that the aged members of the Supreme Court are unlikely to have deep knowledge of APIs. Harvard law professor Rebecca Tushnet, who filed a brief supporting Google and its fair-use argument, believes the justices will get up to speed when the case goes to trial. Nonetheless, she acknowledges there is a risk they may overlook the technical intricacies of the case—including that Google is claiming only a specific subset of APIs shouldn’t be copyrighted. If this happens, the justices may rely instead on the broader story lines that the companies are arguing. “A compelling narrative always matters. It gives the court a reason to find in your favor,” says Tushnet. “One framing of the story is that Google went ahead and plundered. The other framing is Oracle took something that belongs to everyone else.”

An article by Noah Feldman: Since Virginia voted to ratify the Equal Rights Amendment in January, there’s been lots of speculative talk about the future of the long-stalled constitutional amendment. The House voted Thursday to remove the deadline for ratification (which came and went decades ago), and the technical questions about that deadline are intriguing — the deadline itself has elicited opinions from, among others, the Office of Legal Counsel and Justice Ruth Bader Ginsburg. But more important is an underlying question: Would it make any real-world legal difference if the ERA were enacted today? Or would the consequences be symbolic at most? The answer turns out to be more complicated than you might think. When the ERA was sent by Congress to the states for ratification in 1972, its passage would certainly have effected immediate change in constitutional doctrine. But in the years since, the Supreme Court has interpreted the Constitution to provide a set of protections against sex-based discrimination that come close to what ERA supporters hoped the amendment would achieve.