Media Mentions

A California bill that is on the brink of becoming law threatens the business model of the gig economy. Called Assembly Bill 5 (AB 5), it would make workers for companies like Uber, Lyft, and DoorDash employees under state law, rather than independent contractors, as they are currently classified. That change would legally entitle them to a minimum wage, unemployment insurance, and other benefits. ... Drivers could still bring a lawsuit through California’s Private Attorneys General Act, a law that allows workers to sue even if they have signed a mandatory arbitration agreement. Or they could file arbitration demands. “They still can bring suits. They just have to be in arbitration,” says Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. But, she says, “it does impede [drivers’] ability to be in control and bring a lawsuit in the most effective way that they want to or believe they can.”

The Trump administration says a deal between California and four carmakers to improve fuel efficiency may be illegal. The Justice Department has also launched a probe to see whether it violates antitrust laws. Together, the moves raise the stakes in a months-long standoff over efforts to weaken a key Obama-era climate rule. ...  All this could set up an "epic" legal battle, says Jody Freeman, who served under the Obama administration and is now at Harvard Law School. She says the EPA under President George W. Bush also rejected California's emissions waiver, but "that hasn't been tested in the courts, so we don't know how it would come out." Freeman also says it is "astonishing" that President Trump is pushing so hard for an aggressive rollback that automakers don't want, when they've made clear they would accept a more moderate compromise.

Secretary of State Michael Pompeo criticized what he called the dilution of core human rights for the sake of political “pet causes,” in a speech in his home state of Kansas that will appeal to conservative voters whose support he’ll need if he decides to run for the Senate in 2020. ... But they have suggested that in a government with limited resources, officials ought to spend less time on issues such as biodiversity or clean water and more on core rights enshrined in the U.S. Constitution. He’s also established a commission to study the issue that’s being led by Mary Ann Glendon, a Harvard University professor who has previously argued that advocates of same-sex marriage are seeking “special preferences” accorded to married men and women.

A former New York Court of Appeals judge who is a conservative Republican and a professor who is a liberal Democrat are teaching a new course at Benjamin N. Cardozo School of Law that examines the impact President Donald Trump is having on the Constitution. ... It is not the only law school course that examines the issues through the lens of the Trump presidency. University of California, Los Angeles, School of Law is offering “Law and Lawlessness in the Age of Trump” this semester. Harvard Law School professor Laurence Tribe taught “Constitutional Law 3.0: The Trump Trajectory” in the spring of 2018. And the University of Washington School of Law was one of the first to offer a Trump course shortly after his election, “Executive Power and Its Limits.”

Joseph R. Biden Jr. was on the brink of victory, but he was unsatisfied. Mr. Biden, the 44-year-old chairman of the Senate Judiciary Committee, was poised to watch his colleagues reject President Ronald Reagan’s formidable nominee to the Supreme Court, Robert H. Bork. ... Mr. Biden was seated behind a desk in a spacious living room adjoining his study at his Wilmington, Del., home. A few aides sat or stood around the room, where pizza was in generous supply. Squared off against Mr. Biden was Robert H. Bork — or rather, a convincing simulacrum played by the constitutional scholar Laurence Tribe. Mr. Tribe and Mr. Biden would spar for hours in a series of sessions that August, joined occasionally by other legal experts who would help Mr. Biden hone his queries on subjects from antitrust regulation to sexual privacy. “Biden’s questions were really smart, and they also needed some sharpening,” Mr. Tribe said in an interview, citing Mr. Biden’s tendency to “ask one thing and mean something slightly different.”

Harvard Square in high summer is crisscrossed with tourists, but inside the university all is serene. Those academics who stay behind to work can enjoy the empty seminar rooms, loose deadlines and short queues at the cafeteria.  Samantha Power used to dread such periods of calm. The former US ambassador to the United Nations, and foreign policy and human rights adviser to Barack Obama, was afflicted for most of her adult life with intense anxiety attacks that left her unable to catch her breath, as well as inexplicable but excruciating back pain. ... The panic attacks persisted in the rare lulls during the hectic years of her stellar career that followed. At 48, Power has now written a memoir, The Education of an Idealist, that charts not only her steep upward trajectory, but also her excavation of her Irish immigrant roots, where the clues to her bouts of breathlessness and pain lay hidden. She doesn’t believe in neat ideas of “closure” – “There’s no moment where you just tie a bow around that stuff” – but she has noticed that since burrowing into her childhood, the demons have remained largely at bay.

Former U.N. Ambassador Samantha Power says President Donald Trump has threatened America's leadership in the world, and that it will be very hard for our nation to recover from his presidency. ... "We've had a president who's walked away from our alliances; cozied up to regimes that  don't respect human rights, for reasons that makes very little sense; and unfortunately attacked institutions that make us very strong at home, and not taken pride in our diversity and indeed kind of shunned it," Power told "CBS This Morning" on Friday. "It's going to be very hard to recover from this period in American history. But there's a hunger out in the world, and there's a need on behalf of the American people, to do so."

Republicans are trying to weaken a federal board that helps minority and low-income communities challenge how much pollution can be released in their neighborhoods by power plants and factories. ... “This is outrageous,” said Richard Lazarus, an environmental law professor at Harvard. “Individuals in communities will lose a way to seek relief from pollution that has historically been very effective. But industry will still be able to seek relief to pollute more.”

While in Ireland this week to attend meetings in Dublin, Vice President Mike Pence is staying at the Trump International Golf Links and Hotel in Doonbeg, approximately 180 miles away from Dublin. Pence’s chief of staff Marc Short said the VP was staying at the President’s property due to logistical and security reasons, though he also admitted Trump “suggested” he stay at the resort. In the wake of President Donald Trump indicating that he planned to hold next year’s Group of Seven (G-7) summit at his Doral golf resort in Miami, constitutional law expert Laurence Tribe on Tuesday decried both decisions, saying each violated a separate clause of the U.S. Constitution. “Memo to POTUS: There are TWO Emoluments Clauses,” Tribe wrote. “The one you’re violating when you line your pocket by having Pence stay at your resort & commute is the Domestic [Emoluments Clause]. The one you’re planning to violate by having the G7 stay at the Doral w/out Congress’s consent is the Foreign [Emoluments Clause].”

A letter by Elizabeth Bartholet:  The Massachusetts Department of Children and Families is supposed to be a child welfare agency. But the story told in “Innocents Lost” (Page A1, Aug. 25) demonstrates that DCF regularly functions as a child destruction agency. Governor Baker took an important first step in reforming DCF four years ago, when he eliminated its differential response program. This two-tier system assigned a significant percentage of child maltreatment cases to a voluntary track, with no prior investigation of the seriousness of maltreatment. Under this approach, parents were free to walk away from any protective supervision. Differential response has been shown to put children at risk, and several states have eliminated it for this reason. But Kay Lazar’s Globe story illustrates why this step is not enough. DCF needs a total overhaul. Keeping abuse cases on the traditional track, where DCF can require that parents engage in rehabilitative services, and can remove children at risk to foster care and adoption, will not help if DCF fails to act as needed to protect children.

An article by Noah Feldman:  It’s great news that a North Carolina state court has struck down partisan gerrymandering under its state constitution. The ability of states to read their own constitutions differently from the federal constitution is part of what make states laboratories for democracy. And no experiment is more dangerous for the future of democracy than highly effective, computer-modeled partisan gerrymandering. But don’t get too excited about the prospect that lots of states will overcome partisan gerrymandering through state judicial action.

Currently, Facebook relies on a combination of technical tools and human moderators to enforce its community standards. Soon, the company hopes that the final decisions about content it's flagged will be made not by its own teams, but by a group of outsiders. By the end of the year, Facebook plans to have up and running an external, independent oversight board to tackle its most challenging content moderation decisions — a body that Facebook CEO Mark Zuckerberg said will function like an appeals court, or the US Supreme Court...“It's going to consider a selected subset of the most difficult and controversial issues on which reasonable people could reach different conclusions,” said Noah Feldman, a Harvard Law School professor who came up with the idea for the oversight board. “It can’t realistically fix every possible mistake that either computers or humans make. That would be a strange thing for it to do.” Feldman said that when he came up with the idea for an independent oversight board in January 2018, he didn’t have a particular piece of contested content in mind. Rather, he said, he was thinking about the broader content moderation challenges facing the company: being criticized for taking down too much material, therefore stifling free speech, or leaving too many posts intact and jeopardizing users’ safety. When Feldman brought the oversight board idea to Facebook, he was pleasantly surprised by the reception. “I discovered, to my great interest, that Mark Zuckerberg had himself been thinking for a long time about different ways to devolve power, create accountability, put some kinds of decision-making outside of the company,” he said.

State Street Corp. has flexed its muscles as an influential shareholder, demanding that large U.S. companies including SL Green Realty Corp., Verisk Analytics, and Ford Motor Co. improve their corporate governance practices or explain their rationale to get its vote of approval...State Street, BlackRock, Vanguard Group, and BlackRock vote 25 percent of the stock in the largest U.S. public companies, a portion that could soon rise to 40 percent, according to a draft paper published last month by Alexander Platt, a lecturer at Harvard Law School. He suggested that policymakers in “heated debate” over the influence of the Big Three consider reforms that strengthen their overlooked roles as corporate enforcers.

Samantha Power has always had a self-righteous streak. She freely admits the “certitude” and “sanctimony” of her younger self. After a few years as a correspondent covering the Bosnian war, she found that her new Harvard Law School classmates didn’t know or care about the genocide unfolding there, so she stuffed a New York Times report on the Srebrenica massacre into every first-year’s mailbox. Her scholarship and activism on that topic culminated in “A Problem From Hell,” her incredible 2002 history of American apathy during the 20th century’s worst ethnic conflicts. The Pulitzer Prize-winning tome held that officials justified noninterference when even minimal efforts, from public shaming to sanctions, could have saved countless lives. “Decent men and women chose to look away,” she wrote. Power was, in this antediluvian period, a voice of piercing moral clarity. Then she went to work for Barack Obama. During her stints with him in the Senate, on the presidential campaign and inside the White House, pundits and critics wondered how the human rights advocate would reconcile her belief that America must act to protect vulnerable people with the dirty business of policymaking, where concessions taint every action. She finally answers in “The Education of an Idealist,” her new memoir.

“In Hoffa’s Shadow: A Stepfather, a Disappearance in Detroit, and My Search for the Truth,” Jack Goldsmith (Farrar, Straus and Giroux) Goldsmith, a Harvard Law professor and former assistant attorney general, reunites with his estranged stepfather, a one-time Jimmy Hoffa associate, to find out more about the labor leader and his famously unexplained 1975 disappearance. Out September 24.

Charles Hamilton Houston ’1922 S.J.D. ’1923 was an inspiring figure in American legal history and a sometimes controversial one as well. Both sides of his legacy were examined in a lively lecture and Q&A discussion at Harvard Law School this week, to coincide with the 124th anniversary of his birth on September 3, 1895. There was no disputing Houston’s status as a one of the key champions of American racial justice in the 20th century. In his opening talk, Professor Randall Kennedy outlined the obstacles Houston overcame as an African American lawyer in the early 20th century, and the accomplishments that ultimately led to the Brown v. Board of Education decision (which came four years after Houston’s death). Professor Kenneth Mack ’91 also celebrated Houston’s achievements, but pointed out decisions Houston made that reasonable minds might take issue with.

Jody Freeman comments on hurricanes and climate change policy.

Escalating an unusually public legal dispute, Suffolk District Attorney Rachael Rollins filed an emergency petition with the state’s highest court Wednesday to overturn a judge’s ruling against a protester arrested at the Straight Pride Parade, saying he overstepped his bounds by refusing to allow her prosecutors to dismiss the charges. Boston Municipal Court Judge Richard J. Sinnott “ignored the clear and unambiguous constraints placed on the judiciary by the separation of powers” in refusing to let prosecutors drop nonviolent charges against protesters who were arrested Saturday in a clash with police, Rollins wrote in a 16-page petition to the Supreme Judicial Court...Sinnott’s stance against prosecutors drew a sharp rebuke from many legal specialists. Nancy Gertner, a former federal judge in Boston who now teaches at Harvard Law School, said Sinnott was making “the kinds of judgments that a prosecutor makes.” “As a judge, I oftentimes disagreed with the cases brought in front of me,” Gertner said. But, “in a system of divided power,” prosecutors decide when to bring criminal charges, she said.

Who would have thought a play title as prosaic as “What the Constitution Means to Me” would in 2019 resound with such passion and urgency? But that’s been the intense reaction to Heidi Schreck’s celebrated performance piece, a Broadway hit this past season and a finalist for the Pulitzer Prize for drama...Laurence Tribe, professor at Harvard Law School: "To me, the Constitution is more verb than noun. Less a bequest from a few inspired but flawed white men than a challenge to build 'a more perfect Union,' a fairer and more equal nation, from their hopes and ideals — and from the dreams of those who marched and fought and died to make those ideals real."

Since the 2016 election, some Democrats have raged against the Electoral College as an anti-democratic institution that does not reflect the will of the people. Some Republicans have defended the institution as protecting the power of small states and preserving the federal system. But whether you like the Electoral College in theory or not, it turns out that the actual rules used to implement its use are creaky and dangerous. Indeed, thanks to new conflicting rulings, the institution could generate chaos and confusion in 2020 or in a future presidential election. In August, the United States Court of Appeals for the 10th Circuit heldthat the state of Colorado violated the Constitution in 2016 when it removed Micheal Baca, a presidential elector who acted “faithlessly” and voted for John Kasich over Hillary Clinton, who was chosen by the state’s voters. It followed a contrary ruling from the Washington state Supreme Court, which held that the state could fine electors $1,000 for being faithless. Now, Harvard Law professor Larry Lessig is planning to bring the Washington case to the United States Supreme Court—and in doing so, hopes to blow up the current Electoral College system.

There was more drama and confusion in Boston Municipal Judge Richard Sinnott's courtroom Wednesday, where prominent immigration and civil rights attorney Susan Church was held in custody for hours. Sinnott held Church in contempt of court while she was representing someone arrested for protesting this weekend's so-called "Straight Pride" parade. Guests [include] Nancy Gertner...