Media Mentions

There's widespread agreement that it's important to help older adults and people with disabilities remain independent as long as possible. But are we prepared to do what's necessary, as a nation, to make this possible? That's the challenge President Biden has put forward with his bold proposal to spend $400 billion over eight years on home and community-based services — a major part of his $2 trillion infrastructure plan...It comes as the coronavirus pandemic has wreaked havoc in nursing homes, assisted living facilities and group homes, killing more than 174,000 people, by some estimates, and triggering awareness of the need for more long-term care options. "There's a much greater understanding now that it is not a good thing to be stuck in long-term care institutions" and that community-based care is an "essential alternative, which the vast majority of people would prefer," says Ari Ne'eman, a doctoral student in health policy at Harvard University, andsenior research associate at Harvard Law School's Project on Disability.

An action plan to curb food loss and waste in the U.S. — pitched to Congress and the Biden administration this week by four organizations and supported by a host of cities, businesses and nonprofits — recommends funding infrastructure that keeps organic waste out of disposal sites by providing state- and city-level investments for measuring, rescuing and recycling it. Led by the Harvard Law School Food Law and Policy Clinic (FLPC), Natural Resources Defense Council (NRDC), ReFED and World Wildlife Fund, the plan also stipulates that federal facilities take steps to prevent organic waste and purchase finished compost products. The organizers urge lawmakers to spur growth of compost markets among private sector buyers as well. The plan calls for allocating $650 million annually through at least 2030 to states and cities for organic waste recycling infrastructure and other food waste reduction strategies. It also calls for $50 million for those cities and states to pursue public-private partnerships; $50 million in grants for research and innovation in the space; $3 million annually through 2030 for consumer food waste reduction research and behavior change campaigns; and $2 million to add personnel to the Federal Interagency Food Loss and Waste Collaboration.

An op-ed by Noah Feldman: Over a veto by the state’s Republican governor, Arkansas has passed a bill, known as the SAFE Act, prohibiting range of gender transition medical treatments for people under 18, with some minor exceptions. It covers hormone therapies known as puberty blockers that can prescribed to transgender children to inhibit the sex hormones that drive the onset of puberty. The law is morally repugnant, overriding the decisions of medical professionals, parents, and transgender teens and kids. Nevertheless, forthcoming legal challenges, which the ACLU has said it will bring, face an uphill battle. States ordinarily have the authority to prohibit medical treatments. There is a federal statute, Section 1557 of the Affordable Care Act, that prohibits sex-based discrimination in a healthcare program that gets federal funds. But that provision may not be enough to stop a state from outlawing treatments of which it disapproves — especially if those same treatments would not be prescribed for cisgender children. Thus, in a weird and counterintuitive twist, state law barring transgender girls from participating girls’ sports are likely to be struck down by the courts as unlawful; but laws prohibiting giving hormone therapy to transgender kids may be upheld.

The Biden administration and Democrats in Congress are gearing up for another run at mandatory reductions of the oil and natural gas industry's methane emissions, amid signals from the sector that it might accept some additional controls as part of its contribution to addressing climate change. Given that methane has about 84 times the global warming potential of carbon dioxide over a 20-year period, agreement is widespread that further reductions are necessary...In this particular case, the Trump rollback came in the form of two separate rules amending the 2016 rule, explained Hana Vizcarra, staff attorney at the Harvard Law School Environmental and Energy Law Program, in an email to IHS Markit. "In one, the Review Rule, the EPA reinterpreted the Clean Air Act in a way that limited its authority to regulate and, they argued, required them to cut storage and transmission out of the rule entirely. The other, the Reconsideration Rule, dealt with technical aspects of the requirements," she wrote. To greatly simplify the situation, Vizcarra said that the current proposed CRA resolution would only rescind the Review Rule, and "because this was an amendment to the 2016 rule, its disapproval would mean the regulations would revert back to the 2016 status quo." But the Reconsideration Rule elements would stand as modifications to that 2016 rule.

In the last four months, five states have legalized recreational marijuana, meaning now 30% of the country allows its adult residents to possess and use cannabis. At least two more states are poised to be added to that list following the passage of cannabis legalization bills this year. Marijuana policy experts and advocates say this national trend is indicative of a shift in Americans' perspectives on marijuana. Arguments from elected officials and voters that centered around perceived dangers of marijuana substance abuse or a rise in criminal activities have quelled as evidence has grown to show there are economic, social and health benefits from a state regulated cannabis industry, according to Mason Marks, a law professor at Gonzaga University and a fellow-in-residence at Harvard Law School's Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. "It’s turning out to be very antiquated," Marks said of past opposition to legalizing marijuana. Marks and other experts say there will be stronger legalization efforts in the near future. However, they noted there would still be an uphill battle before the country sees any true national repeal of its marijuana laws.

An op-ed by Alexander Chen: “Where are your gym clothes?” “I lost them.” “Again?” my mom said, exasperated. I knew it would be frustrating for her, replacing my gym clothes for the third time that year as a single mom. I hadn’t really lost my gym clothes, though. I knew exactly where they were—wedged behind the tall bush at the back of the school property, where I’d lobbed them right before PE class. The last two sets had been “lost” in similar fashion—tucked under a stairwell, secreted behind a tree—each time so I wouldn’t have to go to PE that day. The reason I dreaded going to PE was that, although I didn’t realize it at the time, I was a transgender boy. All I knew was I hated the changes that were happening to my body during puberty. I hated that we had to change in the locker rooms. I hated having to wear the gym clothes because they were more revealing than the bulky clothes I wore to school every day. And I hated the gender-segregated teams and activities, where I was forced to play “girls” sports rather than “boys” sports. The thing was, aside from the gender dysphoria, I really liked PE. I liked running and hiking. I was an excellent third baseman. I enjoyed developing teamwork and camaraderie with my friends. But the gender-related anxiety would build and build, culminating in these moments of blind panic where I would chuck my gym clothes into a bush right before class.

Justice Stephen G. Breyer said Tuesday that proposals to expand the Supreme Court to dilute the power of its conservative majority risk making justices appear more political and could hurt the court’s influence with the public. Breyer, one of the court’s three liberals, defended the court’s independence by pointing to its decision to resist President Donald Trump’s attempts to draw the court into lawsuits that sought to overturn Trump’s defeat in November. In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.” He added: “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.” Some Democrats and liberal activists say that adding seats to the court is the only way to blunt the court’s conservative majority.

An op-ed by Jonathan Zittrain and Will Marks: Long before cryptocurrency speculators got involved, art prices were capricious—as the British artist Banksy no doubt understands. Recently, the work “Game Changer,” which he delivered unsolicited to an English hospital last year, earned it $23.2 million at auction—about $20 million more than experts had predicted...Last month a company called Injective Protocol took the spirit of “Morons” to a new extreme: After purchasing one of 500 prints of that work for just under $100,000, the company scanned the print and then destroyed it. A copy of the resulting digital file was then placed on IPFS—a distributed data-storage network whose initials stand for interplanetary file system—for anyone to see. A “non-fungible token,” or NFT, that points to the work was exchanged for almost 230 units of a cryptocurrency called Ether, about $400,000. All things considered, the purchaser of that token might have been in on the joke rather than the butt of it: Some NFTs are selling for tens of millions of dollars. These high prices suggest that regulators may not be moving quickly enough to protect unsuspecting investors. Impulsively buying GameStop shares on Robinhood is risky enough—the equivalent of placing a long-shot Kentucky Derby bet because the horse had a cool name. Worse still is losing your money because you didn’t understand what a horse race was and thought your wager was actually buying a horse.

The government can't force a person to be vaccinated, but it's likely within its power to require proof of a COVID-19 vaccine to engage in certain activities, including attending events. "Vaccine passports," a means of proving a person's vaccination status, have been floated as a way of increasing capacity at certain events as America crawls toward normalcy...Congress could potentially have the power to mandate vaccines under the commerce clause, experts told Newsweek and states could institute mandates under the 10th Amendment. However, a mandate can't force someone to be vaccinated against their will, it can only impose restrictions on a non-vaccinated person. Those who aren't vaccinated could be prevented from engaging in interstate travel, Laurence Tribe, a Carl M. Loeb University professor at Harvard Law School, told Newsweek, and entering places where social distancing and mask-wearing wouldn't be sufficient in preventing virus transmission. "Private businesses could require proof of vaccination by those seeking entry unless prohibited from doing so by state or local law," Tribe said.

On Monday, the Supreme Court said it was kosher to copy someone else’s computer code in some cases. That handed Google a win in a decade-long court battle with Oracle over the guts of the Android smartphone system...In the Google v. Oracle America case, Google said it was standard practice to copy what are called application programming interfaces, or APIs, a set of instructions to make sure that technologies from different companies can work together. Oracle said that Google stole its software and demanded billions of dollars. Each company said it was trying to save the tech industry from ruin...Kendra Albert, a clinical instructor at the Harvard Law School Cyberlaw Clinic, told me that the decision could lead to more legal protections for artists, people who create fan fiction and a group that Albert represents that archives old software such as past editions of Microsoft Excel.

An op-ed by Noah Feldman: The Supreme Court has ruled that Google did not violate Oracle’s copyright when it copied 11,500 lines of JAVA code for its Android operating system. The 6-2 decision followed a long-term trend by reversing a ruling by the U.S. Court of Appeals for the Federal Circuit, a specialized body that tends to protect intellectual property more aggressively than does the Supreme Court. Although written narrowly and aimed at the specific facts of the case, the Supreme Court opinion nonetheless sends a message that copyright law shouldn’t stand in the way of innovations that serve the needs of consumers. Justice Stephen Breyer, who wrote the court’s opinion, is the court’s oldest justice, but that doesn’t mean he’s the least comfortable talking about computer code. To the contrary, Breyer built his career in part on his ability to assimilate technical information and make it comprehensible to lawyers. The fact that the technocratic Breyer wrote the opinion — and was joined by the court’s liberals as well as conservative justices John Roberts, Neil Gorsuch and Brett Kavanaugh — suggests the decision doesn’t reflect ideology so much as pragmatism.

A podcast by Noah Feldman: A case currently before The Supreme Court presents the single largest legal battle the NCAA has ever faced. The case, which comes after years of player activism, argues that the current limits on athlete compensation constitute a violation of antitrust law. It’s a case that could challenge the entire college sports system. Dr. Eddie Comeaux, professor at UC Riverside who studies the student athlete experience discusses the history, current structure and power imbalances within the NCAA. Dr. Comeaux also offers radical re-imaginings for a more equitable, student-centered college athletics system.

An op-ed by Jonathan Gould, Kenneth Shepsle and Matthew Stephenson: Democrats are frustrated with the Senate filibuster blocking their legislative agenda. But the main problem with the filibuster isn’t that it’s bad for Democrats — it’s that it’s bad for democracy. Not only does the filibuster paralyze the Senate, but the 41-senator minority that can block popular legislation often represents an even smaller minority of Americans. That’s not how representative government is supposed to work. Yet eliminating the filibuster, as many are now urging, also poses a danger to democracy. Given the Senate’s extreme malapportionment — with two senators per state regardless of population — Senate majorities often represent fewer than half of the country’s citizens. For example, the 2017 tax cut passed with the support of 51 senators who represented only 43 percent of the population. Getting rid of the filibuster would alleviate minority obstruction today, but it would also increase the risk of minority rule in the future. There is a way out of this dilemma: Democratize the filibuster.

After a 10-year legal battle, the Supreme Court ruled on Monday that Googledid not violate Oracle’s copyrights related to the Java programming language. But the momentous case that attracted briefs from many major tech companies and computer scientists may end up as a mere footnote in the history of software. That’s because the court’s opinion in favor of Google leaves intact how software developers have largely worked for decades, copying parts of existing applications that trigger functions and features and adding them to new ones...Companies including Microsoft, IBM’s Red Hat, and Mozilla filed briefs in favor of Google’s position, warning that upholding Oracle’s demands would make it much harder for new software development. “It’s a good decision for interoperability of software,” says Harvard University law professor Rebecca Tushnet, who wrote a friend of the court brief urging just such a ruling. Allowing the sharing of APIs without too much copyright protection should result in “increasing the creation and dissemination of new works.”

Today, the most important piece of testimony Chief Arradondo delivered was that Derek Chauvin should have taken his knee off of George Floyd’s neck after the first few seconds. The Senate parliamentarian, Elizabeth MacDonough, has ruled that Senate Democrats can pass two more bills this year with a simple majority vote, paving the way for President Joe Biden’s infrastructure plan to pass with 51 votes, bypassing the 60- vote procedural threshold for most legislation in the Senate now. Democratic Congressman Tim Ryan of Ohio is interviewed. In an op-ed for the right wing newspaper "The Washington Examiner", Congressman Matt Gaetz said quote, "I am absolutely not resigning". Donald Trump lied about campaign fundraising from the beginning to the end of his political career. Guests: Kirk Burkhalter, Marq Claxton, Tim Ryan, Laurence Tribe, Tim O’Brien.

An op-ed by Sebastian Negrón-Reichard ‘24: March marked the 104th anniversary of granting U.S. citizenship to residents of Puerto Rico. This citizenship, however, is not truly equal. Unless the Biden-Harris administration is ready to support statehood as the solution to this problem, the administration has an opportunity to fulfill an important campaign promise and make things right for Puerto Rico. Recently, the U.S. Supreme Court granted certiorari to review the case of United States v. Vaello-Madero. This means the court will review the First Circuit’s determination that the exclusion of residents of Puerto Rico from Supplemental Security Income (SSI) violates the due-process clause of the Fifth Amendment. The case originated when New York resident José Luis Vaello-Madero moved to Puerto Rico and was stripped of his SSI benefits. The program, which provides cash assistance to low-income people over 65 or with disabilities, no longer was available to him because he now lived in Puerto Rico. Instead, he was entitled to a separate, Puerto Rico-specific, program with far fewer benefits. Before the First Circuit held Puerto Rico residents were eligible to SSI, Puerto Rico, Guam and the U.S. Virgin Islands were excluded from SSI payments, while the residents of the 50 states, the District of Columbia, and the Commonwealth of the Northern Mariana Islands were eligible.

An op-ed by Emma Svoboda ‘23: China’s brutal repression campaign against the Uighurs in Xinjiang, labeled a genocide by the United States, has also implicated the region’s nearly 1.6 million ethnic Kazakhs. Kazakhstan, which shares a long border with Xinjiang, was an epicenter of activism in the early months and years of the crackdown—many of the first victims who testified on the world stage were ethnic Kazakhs who had witnessed the camps and fled to Kazakhstan. This left Kazakhstan’s government, led by authoritarian strongmen but weak in comparison to China’s Xi Jinping, walking a fine line: heeding its compatriots’ calls to support Kazakhs and fellow Turkic Muslims in China without risking China’s immense economic investments in Kazakhstan. But this economic dependence, now at its strongest point in history thanks to Kazakhstan’s central role in the Belt and Road Initiative, has crippled Kazakhstan’s ability to stand up to China, even when advocating against mistreatment of its own compatriots. While at several points in 2017 and 2018 it appeared that the Kazakh government was willing to take a stand against China’s policies in support of ethnic Kazakhs, the past two years have made clear that that trend is definitively over. Far from the safe haven activists hoped it could become, Kazakhstan is now a hostile place for Xinjiang victims.

An op-ed by Jeremy Lewin ‘22: Judge Laurence Silberman recently urged the Supreme Court to overturn New York Times v. Sullivan (1964), the landmark decision that severely curtails the ability of public officials and (under later precedents) public figures to secure damages for lies about them. Judge Silberman is a conservative, but progressives should join him in calling for a reconsideration of Sullivan. Reforming speech law may be our best chance to confront America’s escalating crisis of truth as algorithmically charged echo chambers exploit cognitive biases, and the sheer volume of digital content makes fact-checking impossible. As President Obama warned in 2020, we are fast approaching an “epistemological crisis” in which democracy will cease to function and progress on challenges like climate change will prove impossible. This slide is fueled by the virtual costlessness of lying. Hyperpartisanship and moral decay have reduced the reputational cost of public deceit. Sullivan makes things worse by stripping away nearly all risk of legal liability for lying about public figures or issues. By requiring plaintiffs to prove “actual malice,” it bars accountability except on a showing of a conscious intent to lie, or very close to it. Scrapping Sullivan would increase the risk of huge damage awards for playing fast and loose with the truth, thereby heightening the incentive to be honest. Progressives should eagerly embrace such movement toward a more truthful society.

An op-ed by Dorit R. Reiss, I. Glenn Cohen, and Carmel Shachar: Covid-19 vaccines offer a way out of the global crisis that has upended — and cut short — lives for more than a year. Three vaccines have now received emergency use authorization (EUA) from the FDA. One question that employers and universities must rapidly consider and act upon is whether to mandate that returning employees and students be vaccinated. Some employers are starting to require Covid-19 vaccines, and Rutgers University became the first university to mandate them for students and employees. One argument against mandates is that individuals cannot be required to get a vaccine that is being distributed under an EUA, as opposed to a full license, an argument made in a recent First Opinion. That would potentially delay Covid-19 vaccine mandates until the FDA approved the first vaccine under a biologics license application (BLA) — and so far the timing of that is unknown. Important nuances lead us to a very different conclusion: There are few to no legal barriers to employers or schools requiring vaccines being distributed under EUAs.

The stock market has had quite a year. Plenty of cash is sloshing around, the pandemic recession notwithstanding, thanks to loose monetary policy, rampant inequality, crypto-speculation, and helicopter drops of cash...Indexing has also gone small, very small. Although many financial institutions offer index funds to their clients, the Big Three control 80 or 90 percent of the market. The Harvard Law professor John Coates has argued that in the near future, just 12 management professionals—meaning a dozen people, not a dozen management committees or firms, mind you—will likely have “practical power over the majority of U.S. public companies.” ... As John Coates, the Harvard professor, notes: “For the most valuable public company in the world, three individuals can in principle swing the vote of 17 percent of its shares. Generally, a significant fraction of shareholders do not vote, even if in contested battles. As a result, the 17 percent actually represents more like 25 percent or more of the likely votes in contested votes. That share of the vote will generally be pivotal.” In fact, the Big Three cast roughly 25 percent of the votes in S+P 500 companies.

Attorneys all seem to agree: When a prosecutor dismisses charges against a defendant, that's an ultimate win. The defendant can heave a sigh of relief, and walk free without the burden of a trial and the potential costs associated with it. But to criminal defendants who allege police misconduct and plan to file civil lawsuits, a dismissal could mean doom. A case involving a Brooklyn man who sued the New York Police Department on misconduct allegations in 2014 presents a compelling case in point: the man, Larry Thompson, was arrested and charged with misdemeanors...If the high court embraces the majority rule, prosecutors will have too much power in crushing the ability of individuals who have been arrested and prosecuted without any real basis to bring lawsuits to seek damages, Rudin said. Nancy Gertner, a retired federal judge and professor at Harvard Law School, agreed. "That would mean that prosecutors essentially are the gatekeepers. All they have to do is dismiss the charges," said Gertner, who served in the District of Massachusetts between 1991 and 2011. Gertner said civil rights law has been "gutted" by judicial interpretations, particularly on qualified immunity. For that reason, it's significant that the high court is stepping in to provide guidance. "The underlying issue is terribly important," she said.