Media Mentions

A podcast by Noah Feldman: Dr. Marc Lipsitch explains why it’s unlikely the United States will hit the threshold for herd immunity, and what that might mean for the future of the pandemic. He also weighs in on the possibility of lab-grown COVID variants and the surging variants abroad.

In the historic Black neighborhood where I grew up in Dallas, a parade would roll off the lot of New Mount Zion Baptist Church on June 19, or the Saturday closest to it, and wend its way through a community where many of the streets were named for institutions and people central to Black history: Oberlin and Ebony. Bellafonte and Dandridge. Bunche and Campanella...Growing up, though, I heard many people—relatives from Out West, recent transplants from Up North, Black elites eager to distance themselves from supposedly backward cousins—mock our parades and picnics as sad testimonials to being late and last...The answer, as the historian Annette Gordon-Reed explains in her new book On Juneteenth (Liveright/W. W. Norton + Company), is that Juneteenth was never about commemorating a delayed proclamation but about celebrating a people’s enduring spirit, before and after General Granger’s decree... In On Juneteenth, Gordon-Reed, an East Texas native, confesses to feeling slightly annoyed to discover that people outside Texas celebrate the holiday. For her, the “twinge of possessiveness” grew from a belief in Texas exceptionalism drummed into natives at birth. “Non-Texans could never really understand what the events that took place in Texas actually meant,” she writes. Her “proprietary attitude” passed soon enough. After all, Black Texans such as Fort Worth activist Opal Lee have campaigned to make Juneteenth a federal holiday, and East Texas congresswoman Sheila Jackson Lee reintroduced the Juneteenth National Independence Day Act in February.

An op-ed by Laurence Tribe: Privately owned social media platforms like Facebook have exploded with wealth and influence. These companies have thrived on an opaque business model that weaponizes a fantasy version of the First Amendment to justify offering users temptingly convenient forms of personalized information-sharing. Of course, we know now these services often end up manipulating the appetites of ordinary people, mining their habits and exploiting the resulting profiles by targeting what amounts to propaganda at those most likely to soak it up, spread it and end up being harmed by it. The recent brouhaha over Facebook’s exile of President Trump and its use of a self-appointed panel of overseers to duck responsibilityfor the harmful lies Trump and his followers propagated on its platform — and the deadly insurrection they used it to pull off — seems likely to be only the first of a series of showdowns with the likes of Trump, who is bound to keep trying to get back onto Facebook. The controversy over Facebook’s actions (or lack thereof) may well be just the latest in what look to be a series of close encounters with the death of democracy.

Facebook can keep blocking former President Donald Trump from using its platform but must revisit the decision within six months, the social network's court-like Oversight Board said Wednesday. The landmark decision affirmed the company's decision to issue the suspension after the January 6 US Capitol riots. The board said it concluded that Trump's posts on January 6, which praised the rioters, "severely violated" Facebook's policies and "created an environment where a serious risk of violence was possible." ... The decision to bar Trump from Facebook, if made permanent, could have vast implications, wrote Evelyn Douek, a researcher of online speech and platform moderation at Harvard Law School. "There is no greater question in content moderation right now than whether Trump's deplatforming represents the start of a new era in how companies police their platforms, or whether it will be merely an aberration," Douek wrote in January. "What one platform does can ripple across the internet, as other platforms draft in the wake of first movers and fall like dominoes in banning the same accounts or content. For all these reasons, the board's decision on Trump's case could affect far more than one Facebook page."

The federal government will begin enforcing protections for LGBT Americans in health care again, reversing a ban put in place by the Trump administration, the Health and Human Services Department said Monday. The decision to do so was made in light of the Supreme Court’s findingin Bostock v. Clayton County, which held that LGBT people are protected from discrimination under Title VII of the Civil of the Civil Rights Act of 1964... Obamacare’s anti-discrimination protections are based on Title IX, which bans discrimination in education and programs that receive federal funding, but courts typically look to Title VII when interpreting Title IX. “It’s very logical and clear that the interpretation the Supreme Court used in Bostock is going to apply to every single federal civil rights statute that bars sex discrimination,” Alexander Chen, founding director of Harvard Law School’s LGBTQ+ Advocacy Clinic, previously told Bloomberg Law.

Five fellows for the 2020-21 Black List and Google Assistant Storytelling Fellowship were announced Monday. The program will provide financial and creative support to five writers in the development and execution of a new original feature film script or TV pilot under the condition that the project tells a contemporary story from the perspective of historically underrepresented communities...Alan Jenkins, a law professor, writer, and advocate who has devoted his career to the intersection of storytelling and social justice. Descended from African-American migrants from the South and immigrants from the Caribbean, the Black experience is central to much of his storytelling. Jenkins seeks to engage broad audiences with shared values and new ideas and believes diverse and inclusive storytelling is especially important at this critical time in our nation’s history. He has worked as a Supreme Court law clerk, civil rights lawyer, human rights grantmaker, and non-profit communications strategist.

Almost every memoir could fairly be subtitled “The Education of.…” Some explicitly embrace the formulation; “The Education of Henry Adams” is the second most influential memoir in American letters, after Benjamin Franklin’s autobiography. “On Juneteenth,” Annette Gordon-Reed’s insightful, often touching reflection on the Black experience in Texas, starting with her own, lands between these two: less arch than Adams, more historical than Franklin. Gordon-Reed’s historical emphasis, like Adams’s, is partly a professional matter. Adams was a distinguished historian at the beginning of the 20th century. Gordon-Reed has earned acclaim as one of the most important American historians of our time. Her 2008 “The Hemingses of Monticello” won a Pulitzer Prize and a National Book Award. Gordon-Reed’s education included an awakening to the complexity of human existence. Many people look to history for lessons applicable to the present; they seek a “usable past,” in the words of Van Wyck Brooks. The simpler the lessons — that is, the more reducible to adage or slogan — the more usable they are. But simplicity comes at a cost to historical accuracy. Historians recognize this; for them the appeal is in the complexity. Time and again in this slim volume, Gordon-Reed notes her discovery that the past is more complicated than she had imagined.

Pfizer and BioNTech began the process of applying for full FDA approval of their Covid-19 vaccine Friday, an expected move that could force the issue of whether vaccine mandates—proposed for schools, colleges and even some workplaces—will be a legal way to combat the virus...A full license adds a new dimension to the debate over whether organizations, schools and universities are allowed to require vaccination, with many opponents arguing that people cannot be required to get a vaccine licensed under an emergency use authorization. Legally speaking, there hasn’t really been a test as to whether a temporarily authorized vaccine can be mandated, Carmel Shachar, executive director of Harvard’s Petrie-Flom Center, told Forbes, though a fully licensed vaccine would certainly “be less controversial to mandate.” While any mandate would have to take account of legally protected medical and religious exemptions, Shachar said any further accommodations—such as an opposition to vaccination—would be decided by the organization implementing it and relevant local laws. Shachar added that it “would not be that much of a stretch” to add a Covid-19 vaccine to the “long list” of vaccines children need to get in order to attend school or daycare.

Bay Area employers are more likely to ask workers to get vaccinated against COVID-19 than employers in other parts of the U.S., according to a new survey. Despite privacy concerns, the law could side with employers. Looking at a U.S. Census small business survey done in mid-April, only 3% of businesses nationwide were requiring workers to show proof of vaccination, but in the Bay Area that more than doubled to 7.5%...Carmel Shachar is the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. “The way that we structure the employee/employer relationship in this country, employers have a lot of leeway to ask their employees to get vaccinated,” she told KCBS Radio. “They usually don’t because it’s not worth their while. Most employers who are employing their employees at-will would be able to say ‘I want you to get this vaccine,’ even if it’s under emergency use authorization, with the exception of if somebody needed a medical accommodation or needed a religious belief accommodation.”

A man convicted for the 1991 bombing death of a Boston police officer will return to Massachusetts after a federal judge reduced his life sentence. A federal judge granted Alfred Trenkler's request for compassionate release — with some conditions — and allowed him to move from a federal prison in Arizona to the federal prison in Devens...The judge reduced Trenkler's sentence to 41 years with five years of supervision, in part because he found that the sentencing judge did not have the authority to impose a life sentence. His ruling also cites the federal First Step Act, passed in 2018, which gives judges the power to reduce sentences... "I do regard this as a victory," said Trenkler's lead attorney, retired federal judge Nancy Gertner. "Any time a life sentence is set aside, even for a number of years, that means the man has hope." ... Gertner said Trenkler will be eligible for parole in eight years.

Pfizer and partner BioNTech have asked the Food and Drug Administration for full approval for their COVID-19 vaccine, a regulatory benchmark beyond the current emergency use authorization granted during the pandemic. Moderna and Johnson + Johnson are expected to submit similar requests before too long. Many are eager for COVID-19 vaccines to advance to full-approval status as they believe this will reassure those who are vaccine hesitant while also helping employers and universities to enforce vaccine mandates...Courts around the United States are reviewing challenges to these vaccine mandates on the grounds that they're authorized, not fully approved. A full approval, however, could effectively end those legal challenges, many of which, legal scholars have said, were dubious to begin with. "I don't think it makes a difference legally, as to mandates, whether the vaccine is EUA or BLA," I. Glenn Cohen, a professor and deputy dean at Harvard Law school, told ABC News, referring to a Biologics License Application. "I do think for many employers and universities it will make them much more comfortable with mandating vaccination, subject to disability and perhaps religious exemption."

An op-ed by Nicholas Stephanopoulos: Georgia has been on the country’s mind lately. And not for a good reason. In March, the state passed one of the most sweeping sets of voting restrictions in recent memory. Among other things, SB 202 bars absentee ballot applications from being sent to all voters. It imposes an ID requirement for absentee voting. It slashes the number of ballot drop-off boxes in Georgia’s biggest counties. It forbids mobile voting centers. It stops ballots cast in the wrong precinct from being counted. It criminalizes offering food or water to voters waiting in line. It gives the legislature control over the State Elections Board. It authorizes that Board to suspend county election officials. And so on. For many voting rights advocates, the solution to laws like Georgia’s is clear: Congress should pass the For the People Act, the omnibus electoral reform bill recently approved by the House. And it’s true, the Act would override several of Georgia’s new limits. For example, the Act would mandate that absentee ballot applications be sent to all eligible voters. The Act would also prohibit ID requirements for absentee voting. And the Act would compel about five times more drop-off boxes than are allowed under Georgia’s law.

An op-ed by Ruth L. Okediji: On Wednesday May 5, the US moved to back a Covid-19 vaccine patent waiver that was being debated at the World Trade Organization (WTO). The proposal, first put forward by South Africa and India in October 2020, seeks to temporarily lift certain intellectual property rights that belong to pharmaceutical companies so that other nations can develop generic versions of the drugs. As awareness of vaccine inequality has grown, patents and other types of intellectual property have become central to how the world emerges from the pandemic. Ironically, the patent system was supposed to improve public welfare. Here's how the rationale goes: in return for disclosing her invention -- i.e. by seeking a patent -- an inventor would be able to, among other things, exclusively make, use, and sell that patented product for 20 years. This would -- as the US Constitution puts it -- "promote the progress of science and the useful arts" by incentivizing the creation and dissemination of lifesaving products. In practice however, the global patent system has enabled the creation of drugs that pharmaceutical companies can sell at high prices, to the patients who can afford them and largely for diseases prevalent in wealthy countries. Pharmaceutical companies argue that these high prices are necessary to recoup substantial research and development (R+D) expenditures, but patent rules also prevent poor countries from producing medicines locally to meet domestic needs.

Facebook founder Mark Zuckerberg may have hoped that his company’s independent oversight board would spare him an agonizing decision on the fate of Donald Trump’s Facebook account. If so, Wednesday’s ruling came as a grim disappointment...Meanwhile, Trump’s opponents fear that putting him back on Facebook risks the incitement of new violence. “I think it would be a terrible abdication of editorial responsibility,” said an emeritus Harvard Law School professor, Laurence Tribe. The dispute is forcing a hard rethink about free speech, about the secret algorithms used by social media companies to decide what millions of us see and read, and about a 25-year-old law that shields technology companies from liability for their users’ irresponsible rants. Tribe dismissed claims the crackdown on Trump amounts to illegal censorship. “It’s not exactly a hard constitutional question,” he said. Social media companies like Facebook and Twitter “are private companies. The First Amendment does not impose any restrictions on what they can do.” But staunch Trump supporter and Republican Florida Governor Ron DeSantis wants to change this. He is expected to sign legislation that could impose stiff fines in Florida on social media companies for blocking the accounts of politicians. But such a law would itself violate the First Amendment, Tribe said.

Elie Honig is joined by Harvard Law School student Eli Nachmany ‘22. The pair discuss the likelihood of Supreme Court expansion, the Court’s “shadow docket,” and the (increasingly political) process for selecting Supreme Court justices.

May is blooming with brand-new reads with a little something for everyone... ‘Noise: A Flaw in Human Judgment’ by Daniel Kahneman, Olivier Sibony and Cass R. Sunstein (available May 18): Ever wonder why people sometimes make such bad judgments? Nobel laureate, Princeton psychology professor and bestselling author Daniel Kahneman, along with Cass R. Sunstein, a legal scholar and Harvard law professor, and Olivier Sibony, an HEC Paris business professor, tackle that question and explore how variables of “noise,” akin to bias, affect errors in decision-making. The authors also offer ways to reduce noise and bias — important advice in today’s complicated world.

A podcast by Noah Feldman: Noah Feldman comments on the Facebook Oversight Board's decision about Trump's account.

An op-ed by Evelyn Douek: No one has set any clear standard about how badly a politician can break Facebook’s rules before getting kicked off the platform, and yesterday the company’s wannabe court missed a chance to fill the void. In a decision anticipated with the fervor that might attend a high-profile Supreme Court ruling, the Facebook oversight board told the platform that, while it might have been right to ban then-President Donald Trump on January 7 for his role in stoking the Capitol riot and because of the risk of continuing violence, the ongoing “indefinite” nature of the ban is not justified. The board gave Facebook six months to go back to the drawing board and work out what to do with Trump’s account now. But this is the exact question Facebook had asked the board to settle. The board respectfully declined. In fact, the board’s decision resolved essentially nothing—except that Facebook wasn’t exactly wrong on January 7—and leaves open the possibility that this whole charade will happen again before the year is out.

Facebook tried to pass the buck on former president Donald Trump, but the buck got passed right back. For several years, Facebook chief executive Mark Zuckerberg has pushed the idea that he and his company shouldn’t be in the position of creating the rules of the road to govern the personal expression of billions of people. He went so far as to dedicate $130 million to fund an independent panel of outside experts to which the company could outsource the thorniest decisions about what types of content — and voices — should be allowed to stay up on Facebook...But on Wednesday, the 20-member panel punted the decision back to Facebook, recommending the company decide within six months whether to permanently ban or restore Trump’s account. He is currently suspended “indefinitely,” a one-off penalty outside Facebook’s usual rules. The board, set up to act as a “Supreme Court-like” body to police Facebook’s content decisions, scolded the company for trying to pass it off, too...Others said it was the board refusing to do its job. “Their role is to constrain Facebook’s, and Mark Zuckerberg’s, discretion,” wrote Evelyn Douek, a Harvard Law School lecturer, in a Lawfare article Wednesday. “The [Facebook Oversight Board] has declined to do that almost entirely, and did not even provide meaningful parameters of the policies it calls on Facebook to develop.”

President Biden is seeking about $2 trillion in higher taxes on companies over 15 years to pay for his infrastructure plan. But corporations are just entities composed of people, so if corporate taxes go up, who ultimately pays? The Biden administration says the greater tax burden would fall largely on high-income shareholders of profitable companies that wouldn’t reduce investments even if taxes rose. That view makes the corporate tax a useful tool for redistributing income and taxing people the U.S. individual-income tax can’t always reach...Economists have long puzzled over the question of who pays the corporate tax. “This is one of the great mysteries in public finance, and so empirical estimates are people feeling around to try to figure it out,” said Mihir Desai, a finance professor at Harvard Business School...Mr. Desai said lawmakers concerned about income distribution should focus more on assisting poorer households and less on raising corporate taxes that could slow investment. “The puzzle to me about the entire debate is just how quickly the corporate tax got mired in this issue of fairness when we know the [effect] is so unclear,” he said.

In a decision announced Wednesday, Facebook’s new Oversight Board sustained the social media giant’s initial decision to deplatform President Donald Trump in the wake of the January 6 Capitol insurrection. But the panel also criticized the company for imposing “the indeterminate and standardless penalty of indefinite suspension,” and demanded it review that decision within six months. Harvard Law School Professor Noah Feldman first proposed the idea of the Oversight Board to Facebook, helped design it, and continues to advise the company on issues related to free expression. Harvard Law Today spoke to Feldman about the panel’s ruling, the board, and the criticism both have received.