Media Mentions

In response to President Donald Trump’s historic transformation of the federal judiciary, several Democratic candidates for president have promised to prioritize the swift appointment of a new wave of federal judges if they enter the White House. ...Instead of someone like Katyal, Democrats ought to nominate judges whose day jobs involve working for ordinary Americans. That means, for example, choosing lawyers who represent workers, consumers, or civil-rights plaintiffs, or who have studied the law from that vantage point. Many outstanding lawyers have dedicated their career to advancing the interests of workers. For example, Deepak Gupta has represented the employees’ side in multiple arbitration cases before the Court, and Jenny Yang is a former plaintiffs’ lawyer and former chair of the U.S. Equal Employment Opportunity Commission. Sharon Block is a former National Labor Relations Board member who now runs an employment-law program at Harvard Law School, and Tim Wu is a Columbia Law School professor whose scholarship has questioned corporate power. Any of them could bring to the bench experiences and perspectives that are sorely lacking in our federal courts.

An op-ed by Noah Feldman: The decision by the New York Police Department to fire the police officer blamed for the choking of Eric Garner marked a troubling end to the five-year search for justice for the man whose death sparked Black Lives Matter protests. A police department trial found that the officer, Daniel Pantaleo, had not been truthful when he said he had not used a chokehold on Garner. Because both New York state and federal prosecutors declined to bring criminal charges against the officer, and the city settled a civil suit by Garner’s heirs, this is the only “day in court” Garner’s legacy will ever receive. All in all, this outcome shows how important the Black Lives Matter movement remains. The legal system is primarily designed to look backward and assign blame for particular, individual events. Even at that task it performs imperfectly. But the legal system is truly terrible at forward-looking transformation of institutions like police departments. For that you need political will and new cultural attitudes, not courts. In other words, transformative change requires a social movement, not a judicial verdict.

An op-ed by Jesse M. Fried and Steven Davidoff Solomon: The House of Representatives recently voted 398-17 to reject the global Boycott, Divestment, and Sanctions effort against Israel. Against this lopsided vote, Congresswoman Ilhan Omar offered a resolution defending BDS as an exercise of free speech by Americans. We strongly support free speech, but BDS supporters often use free speech talk to try to dodge accountability for their misbehavior.   Case in point: The American Studies Association’s Israel boycott. In 2013, the ASA’s leadership, known as the National Council, endorsed a resolution to cut ties with Israeli universities. The proposal was put to member vote. Turnout was low; only 20 percent voted in support. But the National Council declared victory anyway and, ever since, claims the resolution was adopted.

Daniel Shapiro, world-renowned expert on negotiation and conflict resolution, founding director of the Harvard International Negotiation Program, and bestselling author of “Negotiating the Nonnegotiable” will be speaking on Saturday, August 24 at 5 p.m. at the Tanglewood Learning Institute’s Big Idea Event at Ozawa Hall in Lenox, Massachusettes. This keynote speech also features cellist Maya Beiser and coincides with the August 25 performances of Schoenberg’s “Peace on Earth” featuring the Tanglewood Festival Chorus conducted by James Burton, and Beethoven’s Ninth Symphony which culminates in the choral movement popularly known as the “Ode to Joy.” Composed more than 80 years apart, the two works present powerfully contrasting portraits of protest, freedom, peace, and shared humanity.

An article by Nancy Gertner and Gail Heriot: In the early days of the Republic, states typically limited the right to vote to “freeholders”—defined as persons who owned land worth a certain amount of money.  It was thought that, among other things, property-less individuals had no stake in the community or might be inclined to vote for profligate spending, since they were not subject to property taxes. Still, land was cheap, and the qualification level was usually set low, so a large majority of free, adult males could vote.

An op-ed by Cynthia Giles, guest fellow at the HLS Environmental and Energy Law Program: As the world warms and people, wildlife and the natural environment suffer increasingly devastating impacts, the Trump administration is systematically erasing climate change from government regulations and policies. The latest: In June 2019, the White House Council on Environmental Quality (CEQ) requested comments on draft guidance on how federal agencies should consider climate when they evaluate federal actions under the National Environmental Policy Act (NEPA). Incredibly, the phrase “climate change” does not appear in the document.

Last August, "Crazy Rich Asians" took the box office by storm, raking in more than $170 million in the U.S. alone. The film was one of several big blockbusters to premier last summer featuring all-Asian casts and Asian leads. The phenomenon was dubbed #AsianAugust, and sparked excitement about a turning point for positive representation in Hollywood. A number of films starring Asian casts have since graced the silver screen, but has the momentum of #AsianAugust continued in the way fans and critics had hoped? Guests: Elena Creef - Professor of Women’s and Gender Studies at Wellesley College. She specializes in Asian American visual history in photography, film and popular culture.  Jenny Korn - Fellow and the Founding Coordinator of the Race and Media Working Group at the Berkman Klein Center for Internet and Society at Harvard University.  Marella Gayla – A recent graduate of Harvard University who has written for The Boston Globe, Curbed and The Marshall Project.

Should the government apply any standards to the quality of the companies that get to sell their shares to the public in an IPO? I realize the SEC has minimum requirements but when I consider some of the companies going public these days, I wonder whether those standards are high enough. ...A corporate governance expert at Harvard Law School, Jesse Fried, told CNN that having a couple within its C-suite could be the least of its problems. "[It] could be a plus or a minus. If it's a minus, it pales in comparison to the other risks. From investors' perspective, WeWork is associated with many business and governance risks."

As the Trump administration takes steps to expedite fossil fuel projects and reduce environmental regulations, it has veered in the opposite direction on offshore wind, delaying a highly anticipated project in Massachusetts. ..Avangrid Renewables said in a statement that it remains committed to the $2.8 billion project but must revise its schedule because "the original timeline is no longer feasible." "Offshore wind is a new area of development—what the whole picture looks like is changing pretty rapidly as interest increases," said Hana Vizcarra, a staff attorney at the Harvard Law School Environmental and Energy Law Program. "So it wouldn't surprise me that this is just sort of a normal hiccup for an agency trying to get through the full process for its first major project."

In many American cities, the cheapest rental housing is single room occupancy, or SRO units or rooming houses. These are tiny rooms with no kitchens and shared bathrooms out in the hallway. As investors buy up SRO properties in urban neighborhoods, several cities have seen low-income tenants pushed out. Chris Burrell from WGBH's New England Center for Investigative Reporting found such renters are struggling to hold on. ...He's not alone. In San Diego, city officials last spring were helping nearly 200 people relocate after a large SRO closed. In Boston, housing advocates see a similar pattern. Eloise Lawrence is an attorney at Harvard Law School's legal clinic, defending SRO tenants against eviction. ELOISE LAWRENCE: People are being thrown out. That's happening across the city because these properties now are so valued. What was considered sort of housing at the last resort is now seen as desirable and profitable.

...Twinem helped write the reply brief for a Kentucky couple at the heart of the lawsuit as a member of Stanford’s Supreme Court Litigation Clinic. The clinic, founded in 2004 by appellate powerhouses Pamela Karlan and Jeffrey Fisher, allows students to work on real-life Supreme Court cases while still in law school. These clinics, which have since cropped up at top law schools across the country, provide quality representation to groups who can least afford it and act as a pipeline to elite appellate work, including at the U.S. Supreme Court. ... “Getting into the certiorari part of the courts’ practice is actually one of the most revealing and educational things we can do in the short time we have,” said Tejinder Singh, a partner at D.C.-area boutique Goldstein & Russell and an instructor at Harvard Law School’s clinic. “So that’s why we tend to focus on it.” Students in some Supreme Court clinics, in addition to working on cert petitions, also work on merits briefs—briefs on the legal arguments in the case.

In July, Secretary of State Mike Pompeo announced a new Commission on Unalienable Rights. This new commission will distinguish between the “unalienable rights” of the 1948 United Nations Universal Declaration of Human Rights and “ad hoc rights” added after the Cold War. By making this distinction, based upon a deeply conservative definition of human rights, however, Pompeo’s commission will actually threaten sexual equality, LGBTQ rights and reproductive health globally. Pompeo’s definition of “unalienable rights” draws on the ideas of a legal scholar who has staked her career on making a stark distinction between human rights and women’s rights. Mary Ann Glendon is a Harvard Law School professor, former U.S. ambassador to the Vatican and outspoken opponent of same-sex marriage and abortion. Pompeo has not just drawn on Glendon’s ideas but also appointed her as the head of the new commission. According to Glendon, “Human rights are women’s rights. … But it is not the case that whatever a particular nation state decides to call a woman’s ‘right’ is necessarily a universal human right.”

Attorneys general from about two dozen Democratic states are challenging the Trump administration’s rollback of one of President Obama’s signature climate regulations. But what the blue state lawyers are really worried about is how the rule may limit future administrations from tackling heat-trapping pollution. ... The case, filed in the U.S. Court of Appeals for the D.C. Circuit, could wind its way to the Supreme Court should Trump win a second term and stop a Democratic rival from repealing his rule before it reaches the high court. "No doubt, it’s going to be a grinding legal battle," said Jody Freeman, founding director of Harvard Law School's the environmental law program.

...This month is the 400th anniversary of that ship’s arrival. To commemorate this historic moment and its legacy, The New York Times Magazine has dedicated an entire issue and special broadsheet section, out this Sunday, to exploring the history of slavery and mapping the ways in which it has touched nearly every aspect of contemporary life in the United States. The 1619 Project began as an idea pitched by Nikole Hannah-Jones, one of the magazine’s staff writers, during a meeting in January.  ... Those involved knew it was a big task, one that would require the expertise of those who have dedicated their entire lives and careers to studying the nuances of what it means to be a black person in America. Ms. Hannah-Jones invited 18 scholars and historians — including Kellie Jones, a Columbia University art historian and 2016 MacArthur Fellow; Annette Gordon-Reed, a professor of law and history at Harvard; and William Darity, a professor of public policy at the Samuel DuBois Cook Center on Social Equity at Duke University — to meet with editors and journalists at The Times early this year.

An op-ed by Cass Sunstein: Can a new regulation be something to celebrate? If it stands to save lives, absolutely. Here’s one that does: the Food and Drug Administration’s new proposalrequiring warnings, including graphic images, on cigarette packages and in cigarette advertisements. The regulation, now out for a 60-day comment period, also appears to fix the problems that hobbled previous attempts to mandate graphic cigarette warnings. It’s been 10 years since Congress first directed the FDA to require graphic warnings, and that job was supposed to be done by mid-2011. The FDA duly aimed to meet the deadline, proposing labels that were indeed graphic. (As administrator of the Office of Information and Regulatory Affairs at the time, I helped oversee that process.) But the tobacco companies convinced a federal court that, by compelling speech, the FDA’s regulation violated their First Amendment rights.  

An op-ed by Noah Feldman: If you’re trying to figure out China’s next move in Hong Kong or how India will proceed in Kashmir, here’s a clue: follow the logic of an empire. China and India each inherited control from the British Empire, and are following a script that could have been written a century or more ago. Both governments probably have more legitimacy among their subjects than the British Empire had, but that’s beside the point when it comes to their reasons for acting today. Start with China, which got Hong Kong back from the U.K. in 1997. China promised “one country, two systems,” an arrangement that was supposed to allow a common-law-style judiciary to continue operating in the former British colony. Yet, it’s not as though Hong Kongers enjoyed democratic self-government under the British. The handover of Hong Kong was the exchange of one imperial sovereignty for another. The government of the People’s Republic of China was just much closer at hand, and had a stronger traditional claim to the territory.

Attorneys general from about two dozen Democratic states are challenging the Trump administration's rollback of one of President Barack Obama's signature climate regulations. But what the blue state lawyers are really worried about is how the rule may limit future administrations from tackling heat-trapping pollution. ... The case, filed in the U.S. Court of Appeals for the District of Columbia Circuit, could wind its way to the Supreme Court should Trump win a second term and stop a Democratic rival from repealing his rule before it reaches the high court. "No doubt, it's going to be a grinding legal battle," said Jody Freeman, founding director of Harvard Law School's the environmental law program.

The founder of bombastic sports website Barstool Sports is the latest boss to potentially face an unfair labor practice complaint for an anti-union tweetstorm threatening workers who talk to union attorneys. ...Federal law allows managers and other agents of a company to criticize unions, but restricts them from threatening to punish employees who organize. “As an employer, you can hate unions, denigrate unions, oppose unions,” said University of Wyoming law professor Michael Duff, a former NLRB attorney. “But you may not, in reaction to real or imagined concerted employee activity, make statements containing threats of reprisal” like Portnoy’s. “Under any reading of the federal labor law, telling workers that they’re going to be fired if they seek advice or help about a unionization campaign is flatly illegal,” said Harvard law professor Ben Sachs. “In my estimation, even the Trump NLRB would consider that illegal.”

In his 2,300-word manifesto, the gunman who killed 22 people in El Paso earlier this month laid out his views on many topics including the environment, corporations, economics, automation and, most forcefully, the “invaders” who arrive in the United States from other countries. Speaking of Democrats, he wrote, “They intend to use open borders, free healthcare for illegals, citizenship and more to enact a political coup by importing and then legalizing millions of new voters. Compare those thoughts to what Fox News host Tucker Carlson said on air on May 17. In a standard anti-immigration riff, Carlson laid out what he saw as the partisan dimensions of the topic ...[I]t’s hard to avoid Fox News’s influence on immigration or any other contemporary controversy, especially for those inclined to seek out conservative news on the Internet. The influence is malign, too. Yochai Benkler, a scholar affiliated with Harvard’s Berkman Klein Center, has studied the network’s ability to seed its ideas across the web. He told The Post last year: "Our data repeatedly show Fox as the transmission vector of widespread conspiracy theories. The original Seth Rich conspiracy did not take off when initially propagated in July 2016 by fringe and pro-Russia sites, but only a year later, as Fox News revived it when James Comey was fired. The Clinton pedophilia libel that resulted in Pizzagate was started by a Fox online report, repeated across the Fox TV schedule, and provided the prime source of validation across the right-wing media ecosystem.

Mayor Bill de Blasio on Monday joined a host of prominent figures in sharply questioning how Jeffrey Epstein died in an apparent suicide in federal jail, insisting that he was not dabbling in conspiracy theories even as he echoed them.... Other prominent figures, including former Mayor Rudolph W. Giuliani, President Trump’s personal lawyer, Joe Scarborough of MSNBC’s “Morning Joe,” Representative Al Green, a Democrat of Texas, and Laurence Tribe, a Harvard law professor, all said on Monday that they did not need to wait for an official investigation to assert that something did not add up.... Professor Tribe, who teaches constitutional law at Harvard and who has a social media following of more than half a million people, said on Twitter on Saturday that “you don’t have to be a conspiracy theorist to see an evil cover-up to protect lots of powerful men here.”

U.S. Attorney General William Barr says the Department of Justice has found "serious irregularities" at the Manhattan jail where financier Jeffrey Epstein apparently killed himself over the weekend. Media reports suggest Epstein was left unsupervised at the time of his death despite a prior suicide attempt in July. Barr also said today that Epstein's death won't stop the investigations into his alleged sex trafficking of young women. Guest Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, WBUR legal analyst.