Media Mentions

For roughly the first two years of its existence, Munchery, an on-demand food preparation and delivery service, classified its drivers as independent contractors. They were not covered by minimum wage and overtime laws, and were not eligible for unemployment insurance or workers’ compensation. Then, in 2013, it reversed course and made its drivers full-blown employees. In addition to those various protections, they received health benefits if they worked at least 30 hours per week. The about-face suggests an ambiguity in the status of workers at Munchery and other on-demand companies like the car-hailing services Uber and Lyft...But even these hard cases often are not necessarily as hard as they initially appear. Benjamin I. Sachs, a Harvard law professor who is a former union official, notes that the drivers may only need to be paid from the point at which they have agreed to pick up a particular rider.

An op-ed by Tommy Tobin '16. Many of us are going home for the holidays. So too are members of Congress. They have fewer than 10 working days to handle the nation’s business before their long winter recess. One of Congress’s most pressing concerns should be to fulfill its constitutional role and fill the gaping vacancies on the federal bench. While Congress travels home this holiday season, more than 60 seats are left vacant on the federal judiciary. With more than 400,000 cases filed in federal court each year, current judges must cover the gaps left by these open seats. For nearly 30 judgeships, the burdens facing jurists are so great that the Administrative Office of the U.S. Courts has declared a judicial emergency. The stress facing federal judges may have real-world consequences.

It was a galactic head fake from one of Harvard’s eminent legal scholars. Cass Sunstein wowed a crowd at Harvard Law School during a talk on his love for one of the 20th century’s cultural touchstones: “Star Wars.” Sunstein, the Robert Walmsley University Professor, said the film that spawned both prequels and sequels — including “Star Wars: The Force Awakens,” out Dec. 18 — was a seminal source of inspiration in his life and career. “I became a political science major only because of those ‘Star Wars’ movies. You saw those movies, and you had to focus on political science,” said Sunstein, adding that his love of behavioral science grew out of his fascination with the film’s storm troopers. He said that Supreme Court Associate Justice Thurgood Marshall, for whom he clerked after law school, was his substitute for the film’s all-knowing mentor, Ben Obi-Wan Kenobi. Then, Sunstein let his listeners in on his joke.

While families all across the country were shopping for the final ingredients for that special Thanksgiving dinner, someone was hard at work on another type of stuffing: a two-page amendment to legislation that could have shifted hundreds of millions of dollars from one set of powerful financial investors to another. That amendment – which had nothing to do with transportation but was inserted into the $305 billion transportation bill that appears set to be signed by the president shortly – would have changed a portion of securities law know as the Trust Indenture Act, or TIA. To be sure, that amendment did not make the final text of the bill...If this amendment was inserted, it could have sunk those bondholders’ argument – to the benefit of those who own and control Caesars. “The amendment may be good for Caesars’ owners, but it’s not good for the bond market going forward or for out-of-bankruptcy restructurings going forward,” according to Professor Mark Roe, who teaches corporate law and corporate bankruptcy at Harvard School of Law.

Rep. Chellie Pingree (D., Me.) introduced a bill in Congress aimed at reducing the amount of food that is wasted each year in the United States. The Food Recovery Act includes nearly two dozen provisions to reduce food waste across the economy....Emily Broad Leib, director of Harvard Food Law and Policy Clinic, said Pingree's bill tackles an important problem with the nation's food supply. “Food waste is one of the most pressing environmental and economic issues facing our food system, yet so much of the food we waste could go to better use in our households or shared with people in need. This groundbreaking legislation offers assistance to farmers and retailers, supports food recovery organizations, and helps consumers by clarifying the senseless date labels that appear on foods. It thus achieves many of the goals our clinic has advocated over the past few years and we are thrilled to work in support of its passage," Broad Leib said.

When Donald J. Trump called on Monday for “a total and complete shutdown of Muslims entering the United States,” many legal scholars were aghast and said that such a ban would certainly be struck down by courts as blatantly unconstitutional. But on Tuesday Mr. Trump clarified his proposal, saying that he would exclude only foreign Muslims, not Muslim American citizens who travel abroad and then seek to come home. That distinction, legal specialists said, made it far less likely the courts would strike it down...Several legal scholars who specialize in immigration, international and constitutional law said a policy of excluding all foreign Muslims from visiting the United States would still be “ludicrously discriminatory and overwrought,” as Gerald L. Neuman, a Harvard Law School professor, put it. But he said that it was far from clear that the Supreme Court would block it.

Donald Trump has faced a torrent of criticism after releasing a policy proposal that would ban all Muslims from entering the United States.  His fellow Republicans haven't held back: Marco Rubio called it "offensive," and Jeb Bush called it "unhinged." A number of others — politicians, pundits, experts and regular folks — have called it unconstitutional. ..Laurence H. Tribe, a professor of constitutional law at Harvard University, says he's certain that Trump's proposal would violate the Constitution. Yes, he says, some court decisions have found that the some parts of the protective mantle of the Constitution don't extend to foreigners. But according to Tribe's interpretation, some of the most well-known protections — such as theFirst Amendment's guarantee of religious freedom and the Fifth Amendment's guarantee of due process — are not limited by nationality or geography. "The [Fifth Amendment] applies to U.S. conduct with regard to any 'person,' wherever located and of whatever citizenship," Tribe writes in an email. "And [the First Amendment] is a flat prohibition on actions that the U.S. government may take, including those actions that respect 'an establishment of religion' or prohibit 'the free exercise thereof.' "

A group of 30 Christian leaders, including Cardinal Donald W. Wuerl of Washington, has asked for a meeting with Secretary of State John Kerry in advance of the State Department's declaration of genocides taking place around the world. ..In arguing for a meeting, the letter said it was "critically important that the State Department consider the best available evidence before making any official pronouncement that rejects allegations that Christian are, along with Yazidis, targets of ongoing genocidal acts." Other Catholic signatories to the letter include Chaldean Bishops Gregory J. Mansour and Sarhad Y. Jammo of the Chaldean eparchies of St. Maron of Brooklyn, New York, and St. Peter the Apostle of San Diego, respectively; Carl Anderson, supreme knight of the Knights of Columbus; former U.S. Ambassador to the Vatican Mary Ann Glendon, who now teaches at Harvard Law School; and Thomas F. Farr, director of the Religious Freedom Project at Georgetown University.

After making a series of demands they say will improve Harvard Law School’s treatment of minority students, more than 100 students gathered on the campus’s Kumble Plaza on Monday to protest what they said was Law School Dean Martha L. Minow’s failure to adequately address their concerns...“One thing we’ve been getting a lot is that we haven’t given the administration enough time,” said Rena T. Karefa-Johnson, a third-year Law student who spoke after Sells. “Students have been asking for these things for decades... We’re not going to stop.” According to the president of the Harvard Black Law Students Association, Leland S. Shelton, student activists had begun to formulate a response ahead of monday Morning in case Minow failed to respond to their demands by the deadline they set. “I don’t think any students realistically expected her to in 48 hours give a really deep detailed response to those demands,” Shelton said. The aim of the demands, according to Shelton, was “forcing her to say something.”

An op-ed by Noah Feldman. On Monday, just a few days after the shootings in San Bernardino, California, the U.S. Supreme Court announced it won't hear a challenge to a Chicago suburb’s ban on semiautomatic weapons. On Wednesday, in the wake of a semester’s turmoil over race on campuses from Missouri to New Haven, the court is hearing a challenge to affirmative action. Coincidence? Well, sort of. The court’s actions -- refusing to hear the gun challenge while considering affirmative action -- are case studies of judicial timing that raise a broader question: How is the court influenced by day-to-day headlines and current events? The answer turns out to be more complicated, and more interesting, than you might think.

Since Republican front-runner Donald Trump called Monday for a “complete shutdown of Muslims entering the United States,” he has been met with widespread criticism from politicians, policymakers and experts. Rivals slammed the discriminatory proposal as “reprehensible,” “unhinged,” and even “fascist” — while legal scholars noted it is almost certainly unconstitutional. While a blanket plan for religious discrimination violates several general provisions of the U.S. Constitution, Harvard Law Professor Laurence Tribe stresses that Trump’s attempts to justify his plan’s legality Monday actually further revealed its shortcomings. The legal scholar had the following exchange with MSNBC chief legal correspondent Ari Melber.

It is widely regarded as one of the most shameful episodes in America's history. But the internment of Japanese citizens during WWII would be Donald Trump's best hope of passing his ban on Muslims entering the US. Constitutional experts said that internment was the closest precedent that Trump could turn to were he to try and implement his policy - even though it would be 'constitutionally dead on arrival'...Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard University, said that the attempt to use the 'shameful and now universally reviled' internment of Japanese-Americans showed 'just how desperate Trump's supporters are to find some precedent for his wild idea'. He said: 'The court of history has long since condemned both that decision and Justice Black's pretense that the removal of Japanese Americans from their homes on the West Coast was truly a 'pressing public necessity' rather than an egregious example of the 'racial antagonism' that Black purported to condemn. The US government, through the Solicitor General, has since formally apologized for its role in getting the Supreme Court to uphold the racist curfew and expulsion orders.'

Spoiler alert: no. Republican presidential frontrunner Donald Trump’s call to bar Muslim immigrants from the United States, a nation founded by immigrants, does not just offend American sensibilities — it would violate U.S. and international law, according to experts. Laurence H. Tribe, a professor of constitutional law at Harvard Law School and co-founder of the American Constitution Society, said Tuesday that Trump’s proposed ban would be illegal, exceptionally difficult to implement and damaging to national security. “Donald Trump’s plan to ban all Muslims from entering the U.S. — even as recently pulled back to make exceptions for U.S. citizens abroad, whether in the military or otherwise, who happen to be Muslims — would be illegal and therefore unconstitutional, as well as being a nightmare to administer,” Tribe said in an email to Yahoo News.

Almost every public figure appraising Republican presidential front-runner Donald Trump’s proposed moratorium on Muslim immigration and travel to the U.S. has reacted with horror, but the ban would not necessarily be unconstitutional, experts say...Harvard Law School professor Gerald Neuman, co-director of the school’s human rights program, says the idea is “discriminatory in a fashion that’s totally inconsistent with constitutional principles." But, he says, “I can see the courts saying the plenary power requires such relaxed judicial review that they would uphold it – it’s possible.”

Harvard Law student Alexander Clayborne, a leader of the "Royall Must Fall" protest, calls for symbols of slave-owner/Harvard benefactor Isaac Royall to be expunged from campus.

Harvard Law School students rallied Monday afternoon to demand the school change its official seal, which features parts of Isaac Royall’s family crest — a slave owner who helped found the institution. Students had given Dean Martha Minow until 9 a.m. Monday to meet their demands to change the seal as well as create a permanent memorial to the Royall family’s slaves. Minow has not responded. She is traveling. Dean of Students Marcia Sells addressed the students at Monday’s rally. “A quick response to those issues, I think, would give them not the value for which they deserve,” Sells said. “But I do want to say that I do indeed hear you. I do think that there are things that we as a community can change and improve, and I’m looking forward to that work.”...“One of the main issues we see is that people whose voices from marginalized communities are most needed in doing that kind of work, they come in the law school, they incur all this debt and they’re pressured into going into the private sector due to the high tuition cost,” said Mickey Belaineh, a third-year law student from Texas.

An op-ed by Noah Feldman. The idea that American Indian tribes are sovereign has a checkered history, in which it’s been both a sword for taking away Indians’ land and a shield for protecting some vestige of self-determination. Tribal sovereignty is before the U.S. Supreme Court on Monday in a case that asks whether tribal courts have authority over non-Indians in civil cases. You’d think that, more than 500 years after first contact, the question would be settled. But it isn't, or not exactly -- and therein lies a tale of big money, big principles and thorny legal details.

An op-ed by Cass Sunstein. Do you think that this is a profound statement? “Intention and attention are mystery’s manifestation.” What about this one? “Hidden meanings transform unseen beauty.” Both statements are, of course, bullshit, understood in a particular sense: not a lie, but a kind of verbal smokescreen, designed to suggest depth and insight but actually vague, vacuous or meaningless. As we’ll see, an understanding of pretentious-sounding gibberish and its frequent power tells us something important about contemporary politics. But we need a little social science first.

An op-ed by Hal Scott. The United States House of Representatives recently passed the Fed Oversight Reform and Modernization (FORM) Act, which would effectively eliminate the Federal Reserve's authority to act as a lender of last resort to much of the financial system. Without a strong lender of last resort in a financial crisis, as we had in 2008, our financial system could collapse, and our economy and country with it, all in a matter of weeks as people panic unable to get their money. The FORM Act, as Fed Chair Janet Yellen wrote in a letter to congressional leaders before the vote, would effectively prohibit the Fed from lending to non-banks in a crisis.

Among the low points in an American legal education is the law student’s first encounter with The Bluebook, a 582-page style manual formally known as “A Uniform System of Citation.” It is a comically elaborate thicket of random and counterintuitive rules about how to cite judicial decisions, law review articles and the like. It is both grotesque and indispensable. The Harvard Law Review has long claimed credit for creating The Bluebook. But a new article from two librarians at Yale Law School says its rival’s account is “wildly erroneous.”...Current editors declined to discuss current revenues and how they are shared. Asked for their general reactions to the new article, the top editors of the four law reviews behind The Bluebook responded with a joint statement. “Whatever the ancient history might be, today we’re doing all we can to be the best possible stewards of a resource used by so many throughout the legal world,” the statement said.

The team of activists responsible for The Hunting Ground—a deeply irresponsible propaganda piece recently shortlisted by the Academy—are clearly desperate to quash legitimate criticism of their film; they recently implied that the 19 Harvard University Law professors who have denounced the film’s inaccuracies might be contributing to a “hostile climate” for Harvard Law students...Janet Halley, Royall Professor of Law at Harvard, called the filmmaker's comments "bizarre," in an email to Reason. "The press release and the website enable the public to gauge for itself the veracity of the film," wrote Halley. "This might have made a more unfriendly environment for the exaggerations, omissions, and falsehoods spread by the Hunting Ground. But here at the Law School we cherish debate and think that evidence matters—sunlight is the best disinfectant."