Media Mentions

An op-ed by Noah Feldman. Senator Dianne Feinstein owes a public apology to judicial nominee Amy Coney Barrett -- and an explanation to all Americans who condemn religious bias. During Barrett’s confirmation hearings last week before the Senate Judiciary Committee, Feinstein, the California Democrat, insinuated an anti-Catholic stereotype that goes back at least 150 years in the U.S. -- that Catholics are unable to separate church and state because they place their religious allegiances before their oath to the Constitution. If a Catholic senator had asked a Jewish nominee whether she would put Israel before the U.S., or if a white senator had asked a black nominee if she could be an objective judge given her background, liberals would be screaming bloody murder. Feinstein’s line of questioning, which was taken up by other committee Democrats, is no less an expression of prejudice.

Lawyers representing Donald Trump’s current and former aides are giving their clients one simple piece of advice: don’t lie to protect the president. As special counsel Robert Mueller and congressional investigators prepare to question high-ranking aides — including Hope Hicks, Reince Priebus and Sean Spicer — in the coming weeks, Trump’s long history of demanding his employees’ complete loyalty are being put to the test...Alex Whiting, a former federal prosecutor and Harvard Law professor, said that Mueller may have more luck getting cooperation from recently ousted Trump officials – like Priebus and Spicer, though he noted the two men also may end up being overly cautious too. “These guys they have their careers and reputations to be concerned about,” he said.

An op-ed by Seth Berman. News of the Equifax breach has been buried by the wall to wall media coverage of Hurricane Irma and, perhaps, by the fact that we have all become inured to reports of yet another major hacking of financial data. This is a mistake. The Equifax breach appears to be far worse than previous breaches, with potential consequences of a totally different order of magnitude than the prior mass corporate hacks. Initial headlines focused on the number of impacted consumers, which is indeed breathtaking – approximately 143 million people according to Equifax.

After reaching a $101 million class action settlement to resolve lawsuits brought over a chemical spill that contaminated a West Virginia river, the plaintiffs lawyers asked a federal judge to grant them 30 percent of the fund as contingency fees. The judge praised their work but found that fee request to be just too high...The concern for those on the bench is how to award plaintiffs lawyers for their work without granting them excessive fees and leaving class members in the lurch. "Judges do take the role seriously," said William Rubenstein, a professor at Harvard Law School whose highly regarded "Newberg on Class Actions" has cited the Eisenberg/Miller and Fitzpatrick studies in his 11-volume treatise, alongside data he has used from a former publication called Class Action Attorney Fee Digest. "And they understand they're a bulwark against excessive fees from the class members' money."

This past Wednesday, the Senate judiciary committee held its confirmation hearing for law professor Amy Barrett of Notre Dame, who had been nominated to serve on the 7th Circuit Court of Appeals. A devout Catholic, Barrett had not been shy about her personal views in her writings, including her opposition to both abortion and the death penalty. The former stance particularly concerned California Senator Dianne Feinstein, who asked Barrett whether her faith would interfere with her ability to apply the law...As Harvard law professor Noah Feldman put it to me, “It’s legitimate for Senators to seek assurance that a judge will rule according to the law. It’s outrageous—and unconstitutional—to suggest or even imply that a nominee’s religious faith would presumptively disqualify her from office.”

As Texas prepares to rebuild after Hurricane Harvey devastated much of the state, and Florida starts picking up the pieces from the destruction wreaked by Hurricane Irma, emergency workers may face exploitation for the sake of greater profits and speedier project completion...Sharon Block, executive director of Harvard University’s Labor and Worklife Program and former principal deputy assistant secretary for policy at the U.S. Department of Labor, said she is concerned about the administration’s potential response to the recent disasters...“They don’t have real leadership in the agency,” Block said. “So having watched Sandy and the Gulf oil spill, these sort of unexpected disaster responses, even for an agency like OSHA, it’s really complicated and it’s really resource intensive.”

An interview with Janet Halley. On Thursday Secretary of Education Betsy DeVos announced the department would begin the process of changing regulations dealing with campus sexual assaults. DeVos said the Obama-era policies have “failed too many students” and stressed focusing on the rights of victims and the accused. Critics argue DeVos’s plan is an attack on sexual assault survivors, while others applaud possible changes to a system they say denies due process and free speech. We discuss the announcement and its possible effects.

People who live in the possible paths of Hurricane Irma, which could make landfall on American shores as soon as this weekend, face the difficult decision of whether to stay in place or flee. In addition to weighing the costs of leaving town, many also have to consider whether evacuating could put their job at risk...The answer to that question, in many cases, is that they can indeed be fired. Sharon Block, the executive director of the Labor and Worklife program at Harvard Law School and a former Department of Labor employee, says a major storm, even one that yields a state of emergency, doesn’t suspend labor laws. This means that laws that protect workers’ pay still stand, but because in Florida, workers are employed at-will, it also means that (barring a collective-bargaining agreement or contract stating otherwise) workers can still be fired for their absence. “You can be fired for a good reason [or] a bad reason—as long as it's not an unlawful reason, which is usually discrimination,” Block says.

An op-ed by Noah Feldman. Amid the laudable moral support for the Dreamers after President Donald Trump’s revocation of the Deferred Action for Childhood Arrivals program, liberals should keep in mind an important constitutional principle: Immigration is supposed to be the province of Congress, not the executive. The belief that the president has ultimate immigration power can lead to terrible results -- like Trump’s travel ban against six majority-Muslim countries, also powered by the mistaken idea that immigration policy should be set by executive order. The Framers of the Constitution thought about immigration, and wanted Congress in charge. Article I, Section 8, which enumerates Congress’s authorities, confers the power “to establish an uniform rule of naturalization.”

If you thought that media coverage during the 2016 presidential election seemed, more often than not, to boost Donald Trump and criticize Hillary Clinton, you didn’t imagine it, a new report says. According to the report from Harvard’s Berkman Klein Center for Internet & Society, which applied data analysis techniques to 2 million election stories to understand better what people were reading and sharing, Trump not only got the most attention from media outlets across the political spectrum, but his preferred core issues — immigration, jobs and trade — received significant coverage and were widely shared online...From the data, “We know exactly what is the first time in which the Clinton Foundation is raised, in which particular week, linking to what story, based on what structure. We can then say who linked to that story, who amplified it?” said Yochai Benkler, the Berkman Professor for Entrepreneurial Legal Studies at Harvard Law School and the study’s principal investigator.

Harvard Law School unveiled a plaque during a ceremony this week to acknowledge the work of unnamed slaves whose labor made the law school’s founding possible, the university said in a statement. The plaque, located on a rock in the center of Harvard Law School’s plaza, is the latest in a series of steps by Harvard University and Harvard Law School to acknowledge the role of slavery in the school’s history...Harvard Law professor Charles Fried said the plaque, which was unveiled Tuesday, is an appropriate way for the school to recognize the negative parts of its history while also maintaining pride in its accomplishments. “You have to acknowledge the wrongs and the evils which are hundreds of years old and not ignore them, but on the other hand, not act as if they have taken place last week or even 20 years ago,” he told the Globe in a phone interview Friday morning.

An essay by Jeannie Suk Gersen. Over the summer, anticipation over what the Education Department might do about campus sexual assault heightened as the Education Secretary, Betsy DeVos, held high-profile meetings with groups advocating for the interests of universities, sexual-assault victims, and accused students—including one men’s-rights group accused of harassing women online. DeVos’s civil-rights head, Candace Jackson, alarmingly, told the Times that “90 percent” of campus accusations are over drunk or breakup sex. As the new school year began in earnest, widespread fears of a “rollback” of Title IX enforcement accompanied DeVos’s long-awaited policy speech, which was delivered on Thursday, at George Mason University.

In the US, when it comes to your employer watching you at work, the law is clear: it can, and it probably is. The company you work for has wide latitude to peek into your Slack chats, monitor which sites you visit, read your emails, and record your every keystroke. It’s all legal. But in Europe, a new court ruling may start to limit employers that engage in this type of surveillance...This is just the application of pre-digital legal doctrine to the digital age, said Vivek Krishnamurthy, assistant director of Harvard Law School’s Cyberlaw Clinic, who specializes in international internet governance. “There’s a long line of court cases that deal with employers intercepting employee communications” in order to know whether they needed to discipline that employee, said Krishnamurthy. “Courts almost always come out favoring the employer.”

...As four Harvard law professors— Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet and Nancy Gertner —argued in a recent article, a fair process requires “neutral decisionmakers who are independent of the school’s [federal regulatory] compliance interest, and independent decisionmakers providing a check on arbitrary and unlawful decisions.” The four had been among more than two dozen Harvard law professors to express concerns about the Obama administration’s—and Harvard’s—handling of Title IX.

It’s time for NFL owners to rethink the powers of the commissioner, for the sake of their own business reputations, which are being sullied...“It’s the worst of the major leagues by a wide margin,” said Peter Carfagna, former general counsel at IMG and a distinguished lecturer in sports law at Case Western Reserve and Harvard University, and who owns the Cleveland Indians’ Class A affiliate.

In a profession marked by pomp and pretence, Richard Posner, who is retiring from the judiciary, is a renegade. For Dick, as he is known to his staff, the tradition of clerks addressing their bosses as “judge” exemplifies the judiciary’s stodginess and resistance to innovation...Laurence Tribe of Harvard Law School says Mr Posner has had a “uniquely broad influence” on the legal academy and on America’s courts.

The evolution of work is becoming a battle between flexibility and stability. The sharing economy offers people unprecedented opportunities to work when, where, and as much as they want. But it also threatens a future in which stable, well-paying jobs cede to temporary gigs with few protections. Lawmakers wonder: How do we stoke new-economy industries without burning up old-economy security?...Yes, flexibility is desirable. But it is no substitute for security, said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. Most gig workers, of course, are classified as independent contractors and consequently not covered by laws related to minimum wage, workers' comp, overtime, and other employee benefits and protections. "Many workers in the online platform economy are low-wage workers. Drivers. Cleaners. Home-care workers," Block said. "They have little ability to shoulder the risks to their livelihoods and families that come with the loss of the basic social safety net."

The Department of Education will review a series of Title IX guidelines that spurred Harvard and universities across the country to overhaul their response to sexual assault on campus, drawing concern from some anti-sexual assault activists at Harvard. During a speech at George Mason University Thursday, Secretary of Education Betsy DeVos said the department will reconsider the Obama-era policies after a public review process...Harvard Law professor Janet Halley—who is part of a group of Law School faculty who have repeatedly criticized Obama-era Title IX guidance—said she is pleased DeVos is seeking public input. Halley and three other Law School professors sent a memo to the Department of Education in August, urging the department to scale back its definition of sexual harassment. “She’s going to go for public comment, which the previous administration never did on this issue. That’s more democratic and I think that’s a good thing,” Halley said, although she later added, “I am by no means declaring an alliance with the Trump administration.”

...Law dean John Manning said at a dedication ceremony Tuesday that the law school should be open about its origins and ties to the slave trade. “Our school was founded with wealth generated through the profoundly immoral institution of slavery,”...The text of the plaque was drafted by history and law professor Annette Gordon-Reed, who has written extensively on Thomas Jefferson’s slaves...Gordon-Reed noted during the dedication ceremony on Tuesday that the memorial does not include the names of the slaves whose toil helped fund the law school’s founding, because many of their names are unknown. “The words are designed to invoke all of their spirits and bring them into our minds and our memories with the hope that it will spur us to try to bring to the world what was not give to them: the law’s protection and regard, and justice.” But some slave names were recorded in documents, which were read aloud at the dedication by law professor Janet Halley.

A plan to rescind protections for nearly a million undocumented immigrants who grew up in the United States has caused confusion and concern on college campuses, including in Massachusetts...The workload has been pretty frantic in the last couple of weeks," said Jason Corral of the Immigration and Refugee Clinic at Harvard University. Corral was hired by Harvard in response to the President's rhetoric on immigration during the campaign. In recent weeks, they have been preparing for Tuesday's announcement, anticipating that several students would be impacted. "People that are not US citizens are concerned," Corral said, "In addition to this being a slap in the face to DACA students, I think it's symbolic of the tone the administration has taken in general."

An op-ed by Noah Feldman. President Donald Trump’s Department of Justice claims it has the authority to use information submitted by Dreamers who applied for the Deferred Action for Childhood Arrivals program to deport them now. It’s obviously wrong for the government to lure people in by the promise of freedom, then use what they have said against them. It may also be unconstitutional, a violation of due process that shocks the conscience and a violation of the Dreamers’ free-speech rights when they registered for DACA in the first place.