Media Mentions

An article by Richard Parker: On the day when it’s clear to you that you were defeated, you’ll demand to know who’s to blame.  “Who betrayed me?” you’ll cry.  In the end you will know.  [It was you.] What you won’t ask is this: Whom did you betray? Let me help. You betrayed the political populist uprising of 2016.  You might care about that since you and Bernie Sanders sparked it. For years, a critical mass of voters on the right and the left had wanted – waited – to rebel against the both establishments which had long disrespected them. Instead of competing, both were locked in common embrace of a deeply biased point of view.  They locked out the concerns of millions they called “losers” – cultural and economic – who hadn’t “made change their friend.” They were drawn from the same tribe of meritocratic winners committed to cultural, economic and military globalism.  A classic case of elite failure to respond to a people – the pre-condition for any populist uprising. Now, it appears that President Biden may be returning to the old blindered values.

An op-ed by Laurence Tribe: Can an American president be held accountable to those he kills or injures in an effort to hold onto power? That question is far from hypothetical. As president, Donald Trump orchestrated the “Big Lie” that his electoral defeat was fraudulent, and then exploited the beliefs of many of his supporters in that lie to foment a deadly insurrection at the Capitol on Jan. 6. It’s increasingly possible that the district attorney of Fulton County, Ga., will criminally prosecute Trump for strong-armingGeorgia’s secretary of state to steal the election for him, and that the Department of Justice may pursue his potential violations of Civil War-era federal statutes criminalizing seditious conspiracies, insurrection and rebellion. But the politics of prosecuting a former president are enormously complex. Many will urge turning the page to avoid the appearance of a banana republic, where ousted leaders are routinely jailed by their successors. Even successful criminal prosecution, however, would fail to compensate the myriad victims of Jan. 6. That’s where civil lawsuits, and their promise of compensatory and punitive damages, come into focus. But as plaintiffs begin to line up, many worry that this promise may ring hollow in light of the considerable obstacles to litigation, particularly against former presidents.

Many West Virginians lack access to the health care services they need, as hospitals around the state struggle financially. Three community hospitals closed in the last two years. A fourth ended inpatient services. Others declared bankruptcy and began reorganizations in order to stay afloat. These closures have been devastating to patients...But so far this legislative session, when it comes to hospitals and health care, West Virginia lawmakers have focused on a very narrow — and disputed — form: the deregulation of the health care market through proposed changes to Certificate of Need laws (CON)...As of December 2019, 35 states had some form of CON process in place. But the way those processes work in each state varies drastically. That can make evaluating the overall effectiveness of these programs tricky, said Carmel Shachar, director of the health law policy center at Harvard Law School. “Not every certificate of need process is exactly the same, so that may be why the data is mixed,” Shachar said...Shachar said that we can think about health care like a tree. In states with effective certificate of need laws, the process might act as a landscaper. “If we let plants grow everywhere, sometimes they grow in ways that are unhealthy,” Shachar said. “So certificate of need programs could be used to distinguish between care that is needed, versus care which might have a good return for investors, but don’t necessarily serve the best interests of the community.”

"Defund the police" became a rallying cry during Black Lives Matter protestsacross the U.S. and around the world in the summer of 2020, following the deaths of George Floyd, Breonna Taylor and others at the hands of police. But in the months since, how has the debate developed, and what does it mean for American communities? ... At its most basic, "defund the police" means reallocating money from policing to other agencies funded by local municipalities. Advocates are split on the question of how far it should go: whether to reduce funding and reform some aspects of policing, or completely abolish police forces as we know them...Many reform advocates argue police departments are overburdened, and that other agencies would be better equipped to deal with civil matters like mental health and homelessness. "I think at the core of the defunding movement is the idea that we want to take money out of city and local budgets that has traditionally been devoted to paying for police services, and to redirect it [to] better housing for low-income people, better schools, better mental health treatments," Harvard Law professor John Goldberg told CBSN Originals.

The Biden administration likely will face a tough climb in the courts and on the ground if it tries to push for national ambient air limits on greenhouse gases, experts and lawyers say. Acting Environmental Protection Agency Administrator Jane Nishida wrote last week that the agency “did not fully and fairly assess the issues raised” by a 2009 petition to set National Ambient Air Quality Standards, or NAAQS, for carbon dioxide. The standards are the cornerstone of air pollution law under the Clean Air Act...Regardless of the outcome, Biden’s decision to reconsider the standards is indicative of how the new administration is balancing risk-taking with more “tailored” approaches reflecting knowledge gained from a decade of regulation turnover, said Hana Vizcarra, a staff attorney with the Harvard Law School’s Environmental and Energy Law Program. “This whole-of-government approach, I think, gives them a little more flexibility to decide where they can push and try something new,” she said.

The number of prisoners in Massachusetts with active coronavirus cases has dropped to 13 from a high of 540 in December, according to data released this week. The number includes five inmates housed in state prisons run by the Department of Correction and eight held in county jails, according to a tracker run by American Civil Liberties Union of Massachusetts. Cases have been dropping since Massachusetts started to vaccinate people behind bars in January, becoming one of the first states in the nation to provide shots to prisoners...Katy Naples-Mitchell, a staff attorney with the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, worried that the drop in active COVID-19 cases could make people prematurely think the crisis is over. Some of the drop could be due to a slowdown in testing rather than an actual decrease in the number of people who are infected, she said, particularly in county jails. Naples-Mitchell also questioned state efforts to reduce prison populations. The number of pretrial prisoners in jails, for example, was actually higher in early March than at the same time last year. “It is true that counts are lower and more people are vaccinated. It is also true we don’t know about new strains," she said. "We are potentially looking at another wave of the crisis.”

A new legal attack on the Biden administration’s climate agenda is an aggressive opening shot from Republican attorneys general set to become the president’s persistent courtroom foes, but the case faces steep procedural hurdles. Outside lawyers say the 12 states challenging President Joe Biden’s executive order addressing the cost of greenhouse gases may have filed their lawsuit too early, making it more effective as a messaging tool than a legal one...The social cost of greenhouse gases is an analytical tool used by many agencies to calculate the impacts of their actions by putting a price on emissions of carbon dioxide, methane, and other gases. The Trump administration slashed the values, assigning a lower cost to emissions...Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, called the states’ arguments “hyperbolic.” “The social cost of carbon does not regulate anything, it is a tool that can help inform agencies when executing their statutorily given regulatory authority,” she said, adding that even the Trump administration used the tool, albeit with lower values, in its analyses.

An op-ed by Noah Feldman: Former Republican president Donald Trump is trying to block the Republican National Committee from using his image in their fundraising efforts. He has no legal case: Trump is a public figure and can’t stop anyone from using his image in the course of political speech. But if you think of it in terms of U.S. campaign finance customs rather than in terms of free speech, Trump has a point. And that is very rare indeed. First Amendment principles are clear: public figures really are different when it comes to image control. It’s one thing for an ordinary person to be able to control the use of her image. That makes both legal and economic sense, because as a private person you should be able to choose who gets to display and make a profit from what you look like. But when you have run for president and won and dominated the political conversation for the last five years, you should not be able to control the use of your image in a political context. Such censorship would detract too much from the valuable exchange of political ideas. Imagine if the Democratic National Committee, not the RNC, were using Trump’s image to convince voters to donate money to discourage Trump from returning to politics. We would all have the instinct that this should count as protected political speech. It would be bizarre if Trump could use his own image to promote his own candidacy but the other side couldn’t use his image to take the opposite position.

A podcast by Noah Feldman: Alice Hill, former Special Assistant to President Obama and Senior Director for Resilience Policy on the National Security Council, explains what Texas’ electrical grid collapse means for our country’s infrastructure at large. She also makes recommendations on how we can start preparing infrastructure now for extreme weather events.

A book by Harvard Law Professor Alexandra Natapoff on America's "massive" misdemeanor system has inspired “Racially Charged: America’s Misdemeanor Problem,” a new documentary on how the system punishes the poor and people of color.

In 1883, a Jerusalem antiquities dealer named Moses Wilhelm Shapira announced the discovery of a remarkable artifact: 15 manuscript fragments, supposedly discovered in a cave near the Dead Sea. Blackened with a pitchlike substance, their paleo-Hebrew script nearly illegible, they contained what Shapira claimed was the “original” Book of Deuteronomy, perhaps even Moses’ own copy...In a just-published scholarly article and companion book, Idan Dershowitz, a 38-year-old Israeli-American scholar at the University of Potsdam in Germany, marshalls a range of archival, linguistic and literary evidence to argue that the manuscript was an authentic ancient artifact. But Dershowitz makes an even more dramatic claim. The text, which he has reconstructed from 19th-century transcriptions and drawings, is not a reworking of Deuteronomy, he argues, but a precursor to it, dating to the period of the First Temple, before the Babylonian Exile...When Dershowitz outlined his theory to Noah Feldman, a professor at Harvard Law School and chairman of Harvard’s Society of Fellows, where he was about to begin a fellowship, the older scholar warned him off. “I said, ‘You’re crazy, I don’t want to hear it, you’re going to destroy your career, go away,’” Feldman recalled. “He would keep emailing me details, and I would reply TGTBT — too good to be true.” (Feldman was eventually persuaded enough to help fund Dershowitz’s research, through the law school’s Julis-Rabinowitz Program on Jewish and Israeli Law.)

Word that the White House plans to pick Lina Khan, a Columbia Law professor whose research has spurred a rethinking of competition law, for a seat on the Federal Trade Commission has Washington and business types speculating that the Biden administration is preparing to get tough on antitrust...Concerns about political donations already top investors’ E.S.G. proposals, according to new research from Roberto Tallarita, an associate director of Harvard Law’s corporate governance program. Among the findings from his survey of shareholder public interest proposals from 2010 to 2019: Political spending initiatives made up 16 percent of all shareholder efforts, and on average drew support from 28 percent of companies’ investors, the highest level for such proposals. Companies sought S.E.C. permission to exclude only 19 percent of political spending proposals, compared with 37 percent of climate change initiatives and 57 percent of animal welfare ones. That suggests that demands for transparency on political spending are becoming mainstream and are generally accepted by management teams and the S.E.C. as a legitimate issue. “If the S.E.C. mandates disclosure of political spending, as it might, it will be in large part, as Gensler made clear in his confirmation hearing, thanks to the constant pressure from investors,” Mr. Tallarita said.

When President Biden announced the nomination of Merrick Garland as the next attorney general, Biden criticized incendiary rhetoric against the press as contributing to the Jan. 6 assault on the U.S. Capitol. A new president—and new leadership at the Department of Justice—will mean turning a corner on a strenuous four years, in which the Justice Department was repeatedly drawn into then-President Trump’s attacks on journalists and First Amendment rights...Though the concern over politicized regulatory actions will wane with Trump’s departure, we urge the Biden administration to support concrete steps to prevent antitrust or other common regulatory tools (for instance, the securities laws, tax audits by the IRS, or oversight of the telecommunications industry) from being misused in this way. In their recent book “After Trump,” which was published by the Lawfare Institute, former White House counsel Bob Bauer and Harvard law professor Jack Goldsmith propose amending the Inspector General Act to empower inspectors general to investigate official acts that constitute a “reprisal against or an attempt to harass or intimidate” news media organizations or journalists. Given the Justice Department’s resistance to permitting discovery into facts that might support selective enforcement defenses, the Bauer-Goldsmith proposal would be a welcome check against executive branch overreaching in any administration.

Waste companies have long been comfortable dealing with regulations about tracking and reducing greenhouse gas emissions, but heightened attention may make that more complex in the years ahead. The pressure to address contributions to climate change is starting to come from new sources. Growing numbers of customers and investors are insisting that all industries — waste included — record greenhouse gas emissions and shrink their carbon footprints. In a relatively short period, considering how a company may be exacerbating the effects of climate change morphed from a peripheral concern for investors to a mainstream inquiry. “I continue to be impressed by how quickly this conversation has changed, and how rapidly it's evolved in the last few years,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental & Energy Law Program. In January, for example, the chief of the investment group BlackRock, which has holdings in several major waste companies, wrote a letter to CEOs urging them to bring their net emissions to zero by 2050. In many cases that objective would be more aggressive than the climate targets set by the industry’s largest companies. The request comes with force, as the firm has begun to hold companies accountable for their climate-related choices.

Constitutional law Professor Laurence Tribe joins Lawrence O’Donnell to discuss the civil lawsuit filed by Rep. Eric Swalwell (D-CA) against Donald Trump for the former president’s involvement in the Capitol invasion. Prof. Tribe says the lawsuit is “quite invulnerable to any legal challenge” and an “important way for accountability to take place.”

A drop in your daily step count. A missed period. A loss of hearing. If it’s collected by a smartwatch or wearable, that health data isn’t protected the same way your medical records are. And as wearables like smartwatches and headphones sweep up an increasing amount of health data — flagging potential medical issues that could be used for ad targeting or to discriminate against someone — some lawmakers and researchers are calling for a reconsideration of the current approach. In a sign of the increasing urgency of the problem during the current virtual care boom, U.S. senators last month reintroduced a bill that would make it illegal for companies like Apple, Amazon, or Google to sell or share the data collected by wearables...Legal experts consider the move a step in the right direction, but caution that further action is needed to address the vast amounts of information being absorbed by health tech startups and technology giants alike. “We are on a collision course with how to regulate health data as all the different types of wearables and health tech explode,” said Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard. “HIPAA doesn’t extend to the world of health tech, and it should,” she added...Harvard law professor Glenn Cohen likens the situation to an iceberg, where the tip represents the data covered by HIPAA and the rest represents all the information that is not shielded by the law. Today, there is nothing stopping an employer or insurer from using that unprotected data to price its products or deny someone a job. “I like to remind people that the ‘P’ in HIPAA isn’t privacy,” Cohen said. “The law made sense when we were talking about health care information, not health information” more broadly.

To read the diary of Gustave de Beaumont, the traveling companion of Alexis de Tocqueville, is to understand just how primitive the American wilderness once seemed to visiting Frenchmen...If Tocqueville were to visit cyberspace, it would be as if he had arrived in pre-1776 America and found a people who were essentially powerless. We know alternatives are possible, because we used to have them. Before private commercial platforms definitively took over, online public-interest projects briefly flourished. Some of the fruits of that moment live on. In 2002, the Harvard Law professor Lawrence Lessig helped create the Creative Commons license, allowing programmers to make their inventions available to anyone online; Wikipedia—which for all the mockery once directed its way has emerged as a widely used and mostly unbiased source of information—still operates under one...All of that began to change with the mass-market arrival of smartphones and a shift in the tactics of the major platforms. What the Harvard Law professor Jonathan Zittrain calls the “generative” model of the internet—an open system in which anyone could introduce unexpected innovations—gave way to a model that was controlled, top-down, and homogeneous. The experience of using the internet shifted from active to passive; after Facebook introduced its News Feed, for example, users no longer simply searched the site but were provided a constant stream of information, tailored to what the algorithm thought they wanted to read.

After spending nearly $5.5 billion in 10 months on its Farmers to Families Food Box program, the USDA said on Monday it was open to suggestions on a replacement. “While the food box effort served some communities well, it faced challenges in others,” said the Agricultural Marketing Service, which oversees the food giveaway. Agriculture Secretary Tom Vilsack said last week the food box program might emerge in a new format because of its success in delivering perishable foods to people isolated from grocery stores but a decision was yet to be made. The food box program is funded through the end of April in its current form...A month ago, a report by the Harvard Law School’s Food Law and Policy Clinic and the National Sustainable Agriculture Coalition said the food box program “has accomplished much and can serve as a model for future USDA fresh food purchasing and distribution efforts.” It had eight recommendations for improvement, including stronger emphasis on purchases from small and medium-sized producers.

When I spoke to the Princeton University legal scholar and political philosopher Robert P. George in August, he offered a vivid zoological metaphor to describe what happens when outrage mobs attack academics. When hunted by lions, herds of zebras “fly off in a million directions, and the targeted member is easily taken down and destroyed and eaten.” A herd of elephants, by contrast, will “circle around the vulnerable elephant.” ... George was then recruiting the founding members of an organization designed to fix the collective-action problem that causes academics to scatter like zebras. What had begun as a group of 20 Princeton professors organized to defend academic freedom at one college was rapidly scaling up its ambitions and capacity: It would become a nationwide organization...Today, that organization, the Academic Freedom Alliance, formally issued a manifesto declaring that “an attack on academic freedom anywhere is an attack on academic freedom everywhere,” and committing its nearly 200 members to providing aid and support in defense of “freedom of thought and expression in their work as researchers and writers or in their lives as citizens,” “freedom to design courses and conduct classes using reasonable pedagogical judgment,” and “freedom from ideological tests, affirmations, and oaths.” ... Some of the founding members from outside of Princeton include Randall L. Kennedy, Orlando Patterson, Jeannie Suk Gersen, Janet Halley, and Cornel West at Harvard; Brian Leiter and Dorian S. Abbot at the University of Chicago; Sheri Berman at Barnard; and Kathryn L. Lynch at Wellesley.

Google’s Chrome browser said this week that it won't deploy other web-tracking tools after phasing out third-party cookies in 2022. But that won’t transform your online experience, or stop you from seeing ads for whiskey if you’ve just looked up how to mix a Manhattan. “You’re 100% still being targeted,” Elizabeth Renieris, an affiliate of Harvard University’s Berkman Klein Center for Internet and Society, told Yahoo Finance. Even though Google won't replace cookies with other tools that track you individually, it is looking at alternatives that will place users into larger groups with similar interests, which advertisers can buy ads against. And while that might not be what hardline privacy advocates want to hear, the truth is advertisements sustain most of the websites you visit every day. Without them, we’d be looking at a very different internet where websites charge you directly for the content they offer.

An article by Omar S. Haque, M.D., Ph.D., Michael A. Stein, J.D., Ph.D., and Amelia Marvit: Throughout the medical school admissions process, training, and licensure activities, students and physicians with histories of mental illness face structural barriers that result in discrimination and discourage disclosure and care seeking. From the Department of Global Health and Social Medicine, Harvard Medical School, Boston (O.S.H), and the Harvard Law School Project on Disability, Cambridge (M.A.S.) — both in Massachusetts; and the University of Southern California, Los Angeles (A.M.).