Media Mentions

In what was hailed as a major victory for labor unions, the National Labor Relations Board (NLRB) in 2015 redefined what constitutes a “joint employer,” ruling that any company that has “indirect” control over a business can be held responsible if that business violates labor law. In practice this has meant that a corporation such as McDonald’s can be held liable if its franchises are illegally withholding pay to employees or otherwise breaking the law. Now, a new bill could reverse that decision and make it much harder to hold large corporations accountable...“It’s really disingenuous and not truthful to say that what this bill does is undo [the NLRB’s] decision,” Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, tells In These Times.

An essay by Jeannie Suk Gersen. In 2010, as Cyrus Vance, Jr., took office as Manhattan’s new District Attorney, he promised that “crimes committed by the affluent, the powerful, or by public officials will be investigated and prosecuted as vigorously as street crimes.” Today, his office’s failures to prosecute the affluent and the powerful threaten to define Vance’s tenure as D.A., even as he heads for unopposed reëlection to his third term, on November 7th.

An op-ed by Cass Sunstein. On Oct. 9, Richard Thaler of the University of Chicago won the Nobel Prize for his extraordinary, world-transforming work in behavioral economics. In its press release, the Royal Swedish Academy of Sciences emphasized that Thaler demonstrated how nudging – or influencing people while fully maintaining freedom of choice – “may help people exercise better self-control when saving for a pension, as well in other contexts.” In terms of Thaler’s work on what human beings are actually like, that’s the tip of the iceberg – but it’s a good place to start...Some skeptics have raised concerns that nudging can be akin to manipulation. My research shows most people disagree – and welcome nudges that help them live better lives.

An op-ed by Lawrence Lessig and Richard Painter. Supreme Court Justice Stephen Breyer had just described a system in which “if party A wins a majority of votes, party A controls the legislature. That seems fair,” he said. Chief Justice John Roberts then jumped in: “If you need a convenient label for that approach,” Roberts offered, “you can call it ‘proportional representation,’ which has never been accepted as a political principle in the history of this country.” Most Americans would agree with Breyer that in a democracy, it is only “fair” that the party that gets more votes gets more seats. But Roberts was making a narrower point: His claim could not have been — because it would have been absurd — that in our tradition of representative democracy, the winner shouldn’t win.

An op-ed by Cass Sunstein. When a company emits a ton of carbon dioxide, what damage has it caused, exactly? The answer is called the “social cost of carbon,” which may be the most important number that you’ve never heard of. If the number is large, regulation of greenhouse gas emissions will be amply justified. If it is small, not so much. In proposing to scrap the Obama administration’s Clean Power Plan, the Environmental Protection Agency recently announced that the social cost of carbon is close to zero. Well, a bit higher than that, but not a lot.

An op-ed by Noah Feldman. There’s a fight brewing on Capitol Hill over whether to put to rest the “blue slip” custom that allows senators to block judicial nominees who would have jurisdiction over their states. The intraparty fight, between Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley, poses a serious question that should be decided independent of party: Are the blue slips a good idea? Do they promote moderation in the federal courts, or are they an undemocratic relic of senatorial privilege that should go the way of the dodo?

As National Football League team owners consider President Trump’s call to fire players who refuse to stand for the national anthem, they have stumbled into one of the most consequential debates in today’s workplace: How far can workers go in banding together to address problems related to their employment? In principle, the answer in the N.F.L. and elsewhere may be: Quite far. To the extent that most people think about the reach of federal labor law, they probably imagine a union context — like organizing workers, or bargaining as a group across the table from management...“Workers without a traditional organization that is meant to protect them at work are kind of scrambling around for new ways of protecting themselves,” said Benjamin Sachs, a labor law professor at Harvard University.

More than 175 Harvard Law School students and alumni penned an open letter to Law School Dean John F. Manning Wednesday asking the school to improve a program meant to provide financial stability to alumni who pursue careers in public service...Kenneth Lafler, the school’s Assistant Dean for Student Financial Services, wrote in a statement that the school has been in contact with some of the students who signed the letter over the past year to discuss their thoughts about LIPP. He said that many students benefit from the flexibility of Harvard’s program...Alexa Shabecoff, the school’s Assistant Dean for Public Service, wrote in a statement that LIPP’s growing enrollment numbers proves its popularity. “LIPP's steadily growing enrollment, and the diverse and interesting career paths of those who participate in it, show that the program is supporting its participants,” Shabecoff wrote.

Hundreds of friends, family members, and colleagues of Law School professor Charles J. Ogletree Jr. celebrated his lifetime of legal work at an event announcing a professorship endowed in his honor earlier this month. Law School professor David B. Wilkins said the idea of endowing a Law School professorship in Ogletree’s honor came about during a discussion between some of Ogletree’s good friends, including Harvard Corporation members Kenneth I. Chenault and Ted V. Wells...Tomiko Brown-Nagin, a Law School professor and the current faculty director of the Charles Hamilton Houston Institute, also emphasized Ogletree's work regarding sexual harassment..."He also helped raise consciousness about the sexual harassment of working women—an enduring issue for women across a range of industries—through his representation of Professor Anita Hill,” Brown Nagin wrote in an email.

What if the algorithm is racist? As computers shift from being helpmates that tackle the drudgery of dense calculations and data handling to smart machines informing decisions, their potential for bias is increasingly an area of concern...Christopher Griffin, research director of the Law School’s Access to Justice Lab, described pretrial detention systems that calculate a person’s risk of flight or committing another crime — particularly a violent crime — in making bail recommendations...Jonathan Zittrain, the George Bemis Professor of International Law and faculty chair of the Berkman Klein Center for Internet & Society, which sponsored the event, said the danger of these systems is that the output of even a well-designed algorithm becomes biased when biased data is used as an input.

An op-ed by Noah Feldman. President Donald Trump can’t carry out his threat to take away the National Football League’s tax-exempt status aimed at making the league force players to stand for the national anthem. That would be a clear violation of the First Amendment. It’s true that the NFL had voluntarily given up its tax break two years ago, which means that Trump’s threat wouldn’t have practical effect even if he could make it stick. But as the Supreme Court recently held, even an effort to violate free speech based on a factual mistake is illegal.

An op-ed by Paul Butler. “A pack of rabid animals.” That’s how John McNesby, president of the Philadelphia Fraternal Order of Police, described local Black Lives Matter activists who picketed outside the home of a Philly cop who shot black suspects in the back on two separate occasions. After the officer was suspended, the local FOP had a fund-raiser for him, with proceeds from the $40-per-ticket event going toward the officer’s living expenses.

Retailers selling mobile phones will continue to have to warn customers in the City of Berkeley about possible exposure to radiation from the devices, after a federal appeals court on Wednesday declined to revisit a ruling upholding the city’s rule...“The decision of the district court was correct — twice. The decision of the court of appeals was correct — now twice,” Harvard Law professor Lawrence Lessig, who argued for the city in the case, said in an email. “We are hopeful that this will bring an end to this case, and the City of Berkeley will again be free to govern its citizens as its citizens demand.”

Jerry Jones may want to bench Dallas Cowboy players who don't stand for the national anthem, but NFL owners could find themselves facing a First Amendment lawsuit if they punish football players or coaches for their protests after taking government money into the private business of professional football...The money exchanged between governments and pro football teams could mean that discipline enforced by the team could be "fairly attributed to a government entity, meaning the employer could not discipline someone for taking a political position," Harvard Law School professor Mark Tushnet said.

The Harvard Law Review selected more female editors than male editors to join the prestigious journal’s ranks this summer, welcoming a majority-female class for the first time in the publication’s history...ImeIme A. Umana ’14 [`18], the president of the Law Review, wrote in an email that the publication made efforts this year to reach as many first-year Law students as possible during their recruiting process, hosting panels and casual coffee chats with current editors. “These efforts, we hoped, demystified the competition and encouraged students not to count themselves out of joining the journal,” Umana wrote...Leila Bijan [`19], one of the newly selected editors and a vice president of the Women’s Law Association, said she counted the names on the list she was sent the day she was accepted and was very impressed by the number of women. “It actually caught my eye that there were a lot of women on there, and I went through and I counted that there were more women than men,” Bijan said...Seth R. Berliner [`18], the vice president of the Law Review and coordinator of recruiting, wrote in an email that increased representation of women on the publication is a good sign for diversity in the legal profession more broadly. “The editors of the Harvard Law Review go on to be leaders of the legal community,” Berliner said.

A team at the Law School chipped in on the work of the Nobel Peace Prize-winning International Campaign to Abolish Nuclear Weapons, providing legal advice as the group negotiated an unprecedented disarmament treaty. The Law School’s International Human Rights Clinic joined ICAN in its work to pass a United Nations treaty in July asking countries to abolish their nuclear weapon programs and supplies...The IHRC group included four Law School students—Molly Doggett, Alice L.M. Osman, Carina M. Bentata Gryting, and Lan Mei—as well as Anna Crowe, an instructor at the clinic and Bonnie Docherty, a lecturer at the Law School. “The treaty is a major step and a major step towards nuclear disarmament. It is not the end itself so we’d love to have nuclear states on board, but we’re not surprised and not concerned that they’re not on board,” Crowe said.

President Donald Trump has until October 15 — this Sunday — to make a decision that could sabotage the nuclear deal with Iran. Under the Iran Nuclear Agreement Review Act (INARA), passed by Congress in May of 2015, the president must certify that Iran is in compliance with the deal’s terms every 90 days...“None of those [sanctions waivers] involved any legislation by Congress,” explains Elena Chachko, a doctoral student at Harvard Law School and contributor to the national security blog Lawfare. “If [Trump] wanted to, he could basically stop implementing the agreement.”

An op-ed by Adrian Vermeule. The problem is the relentless aggression of liberalism, driven by an internal mechanism that causes ever more radical demands for political conformism, particularly targeting the Church. The solution is an equally radical form of strategic flexibility on the part of the Church, which must stand detached from all subsidiary political commitments, willing to enter into flexible alliances of convenience with any of the parties, institutions, and groups that jostle under the canopy of the liberal imperium.

On Sunday, Dallas Cowboys owner Jerry Jones indicated that he would bench players who didn't stand for the national anthem before games...But does Jones, or any other owner, have the right to bench a player for protesting during the anthem? Could such a benching be a violation of the NFL's collective bargaining agreement or, beyond that, could it even be illegal?...Benjamin I. Sachs, Kestnbaum Professor of Labor and Industry, Harvard University: "I think being benched is adverse employment action. I also think that the protests are in fact directly related to their status as NFL employees. If they are protesting racial discrimination, that's something that impacts their status as NFL players. So I think benching would be violating federal law."

In 2016, then Republican presidential nominee Donald Trump pledged to "put coal miners back to work." That promise included replacing the Obama administration's Clean Power Plan, which sought to slash power sector emissions, and was the centerpiece of the U.S. commitment to the Paris Climate Agreement...Ari Peskoe, senior fellow in electricity law with the Harvard Law School, noted the EPA did not issue a new finding contradicting the Clean Power Plan’s analysis on energy options for utilities. “[There is] nothing in here about renewable energy was too expensive. They are not going back to the record to find new analysis,” Peskoe said.

...The age-old problem of balancing free expression with harmful, and false, content seems like an impossible problem. But online, at least, there’s a lot that sites can do to fix it, says Susan Benesch, a faculty associate of Harvard University’s Berkman Klein Center for Internet and Society who studies dangerous speech on and offline. Indeed, our decades of experience in web design have already taught many sites how to discourage incivility and promote reasoned debate. “There is often the assumption in public discourse and in government policymaking and so forth that there are only two things you can do to respond to harmful speech online,” says Benesch.