Media Mentions

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.

In this era of misinformation, and claims of "fake news," the truth is essential — and in question. Noted historian Jill Lepore joins us to talk about the second season of her podcast "The Last Archive," which tracks the rise of doubt through the last 100 years of American history. Lepore is also a Harvard professor, author, and staff writer at The New Yorker.

Facebook's Oversight Board is expected to make its decision public today on whether or not former President Donald Trump will be allowed to return to the platform after a January ban following the deadly assault on the Capitol, accusing him of inciting the violence. Laurence Tribe, professor emeritus of constitutional law at Harvard Law School, joins CBSN AM to discuss.

An essay by Jeannie Suk Gersen: The story of Mahanoy Area School District v. B.L. began when Brandi Levy, a high-school freshman in eastern Pennsylvania, was passed over for the varsity cheerleading team. Levy took to Snapchat to express frustration...According to a coach, some students who saw the posts were “visibly upset” and found them “inappropriate.” Levy was suspended from cheerleading for a year for violating the team’s rules, which require that students “have respect” for the school, coaches, and teammates, avoid “foul language and inappropriate gestures,” and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches...on the internet.” The coaches as well as the school district also maintained that she violated a school rule that athletes must conduct themselves during the season “in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” Levy, represented by the American Civil Liberties Union, filed a lawsuit, alleging that her suspension from the team violated the First Amendment. Last week, the Supreme Court heard oral arguments in the case, which the Justices understood not only to raise the question of whether public schools may discipline students for speech outside of the school-supervised setting but also to implicate public schools’ power to punish students for discrimination, harassment, and bullying.

Facebook’s Oversight Board on Wednesday upheld the social network’s temporary suspension of Donald Trump but declined to decide when, or whether, that ban should be lifted. The decision dashed the former president’s hopes for a swift reinstatement by a body charged with reviewing the platform’s content moderation practices. But it also sent a message that the scope of the board’s power is limited and that the ultimate responsibility for these questions still lies with Mark Zuckerberg and company...Evelyn Douek, a lecturer at Harvard Law School who has chronicled the board’s evolution, told me she’s seen evidence in its early decisions that “the board is chafing against the very limited remit that Facebook has given it so far.” She would like it to go farther in pushing for transparency. For instance, she said, it could call on Facebook to reveal the Trump ban’s impact on an internal metric that it calls “violence and incitement trends.” The board did take a small step in that direction on Wednesday. Among its policy recommendations, it called for Facebook to undertake a “comprehensive review of its potential contribution to the narrative of electoral fraud and the exacerbated tensions that culminated in the violence in the United States on January 6.”

An article by Evelyn Douek: The long international nightmare is not over. By now, you will have read that on Wednesday the Facebook Oversight Board (FOB) upheld Facebook’s Jan. 7 restriction on former President Donald Trump’s account, largely on the basis of the ongoing violence at the time of the posts that led to the ban. But the FOB did not settle the matter for once and for all: It punted the question of what to do with the account now back to Facebook. It dinged Facebook’s “indefinite” ban as a “vague, standardless penalty”—“indefinite,” according to the FOB, is very much not synonymous with “permanent.” Now, Facebook has six months to conduct a review of what to do with Trump’s account. The decision is meaty and educational. It contains a number of recommendations which, if Facebook follows, will significantly improve the clarity and mitigate the arbitrariness of Facebook’s decision-making. It is also an attempt to split the baby—not letting Trump back on, but also not demanding a permanent ban of his account—and to avoid the inevitable controversy that would have attended any final decision.

A story by Annette Gordon-Reed: When I was growing up in Conroe, Texas, about 40 miles north of Houston, my classmates and I took Texas history twice, in the fourth and seventh grades. We learned about Texas’s history in the United States, its previous existence as a republic, and its time as a province of Mexico. Among other things, we were exhorted to “remember the Alamo” and “remember Goliad,” famous events in Texas’s fight for independence from Mexico. Some other aspects of the state’s history were less covered. I didn’t need school lessons to tell me that Black people had been enslaved in Texas, but in the early days of my education, the subject was not often mentioned. Some of our lessons did, however, involve the “period of Spanish exploration.” And I remember hearing in those lessons stray references to a man of African descent—a “Negro” named Estebanico—who traveled throughout what would become Texas. Estebanico was described, according to Andrés Reséndez’s book A Land So Strange: The Epic Journey of Cabeza de Vaca, as a “black Arab from Azamor,” on the coast of Morocco. A Muslim, he had been forced to convert to Christianity and sold away from his home to Spain; he eventually found his way to Texas in the company of the famous explorer Álvar Núñez Cabeza de Vaca. He arrived in the area of the future Galveston, where Union General Gordon Granger would proclaim the end of the Civil War and the end of slavery in Texas more than 300 years later, on the day now known as Juneteenth. Estebanico’s journey across Texas as an interpreter for Cabeza de Vaca made him one of the first people of African descent to enter the historical record in the Americas.

Asian American and Pacific Islander elected officials make up just 0.9% of elected leaders in the U.S., despite AAPIs accounting for 6.1% of the population, according to a Reflective Democracy Campaign report released Tuesday. Why it matters: The report comes amid growing calls for greater AAPI visibility, following two mass shootings in which East Asian women and Sikh Americans were killed. The country has also witnessed a yearlong spike in anti-Asian incidents. Asians are the fastest-growing racial group in the U.S. and are projected to become the largest immigrant group by 2055. Without adequate representation, governments are unable to serve vulnerable AAPIs with the cultural competency and language access they require...The bottom line: "The people making and carrying out the political choices that affect AAPI communities don’t reflect them," said Premal Dharia, executive director of Harvard Law School's Institute to End Mass Incarceration, per the Reflective Democracy Campaign. "It is imperative that this change."