Media Mentions

A podcast by Noah Feldman: Did January’s pro-Navalny protests have a lasting impact in Russia? Russian investigative reporter Diana Kachalova, editor-in-chief of the St. Petersburg bureau of Novaya Gazeta, an independent Russian newspaper, joins us to discuss covering the aftermath of Alexei Navalny’s case and the status of investigative journalism in Putin’s Russia.

An op-ed by Jeremy Lewin ‘22: In October, Facebook unveiled its long-awaited “oversight board” – a special, semi-independent body, staffed mainly by experts on free speech and constitutional law, with the authority to make decisions about controversial content posted on Facebook’s platform. Sometimes described as Facebook’s “supreme court”, the oversight boardhas been met, in the legal and academic worlds, mostly with wonder, excitement and praise. Giving predominantly legal scholars input on the content moderation of the world’s largest social media platform seems like a positive step for social media governance. But behind the gloss, Facebook’s experiment is intended to foster anything but genuine accountability. It is a clever obfuscation offering Facebook cover to engage in socially irresponsible profit-seeking that would be publicly reviled were it more transparent. The trick is simple. Facebook faces a problem of two-sided economic incentives: dangerous and socially objectionable content is genuinely valuable to its bottom line, but so is the public perception that it’s proactively committed to maintaining a socially responsible and safe community. It designed the oversight board to escape this double-bind. Oversight by a legalistic body with the appearance of neutrality earns Facebook public goodwill and deflects blame for lax content moderation. But in designing the structure of the body itself, Facebook has virtually ensured certain financially beneficial outcomes: maximum content, even the dangerous and harmful, left online.

An article by Sean Quirk ‘21: The Biden administration continues to focus its diplomatic energy on the Indo-Pacific, hosting a virtual summit for the Quadrilateral Security Dialogue (the Quad) and deploying senior officials to Asia to repair regional alliances. Meanwhile, regional disputes over national and international law are driving tensions in the East China Sea and South China Sea. The United States is seeking to work with its allies and partners to confront an increasingly assertive maritime posture from the People’s Republic of China (PRC). On March 12, the four heads of state from the nations of the Quad convened virtually. It was the first-ever official meeting with leaders of all four Quad countries: Australia, India, Japan and the United States. Following the summit, a joint statement highlighted the nations’ shared concerns over “COVID-19, the threat of climate change, and security challenges facing the region.” The statement also explicitly stated the Quad’s “strong support” for unity among the Association of Southeast Asian Nations (ASEAN). U.S. National Security Adviser Jake Sullivan told reporters that the Quad “committed to delivering up to one billion doses” of coronavirus vaccines to ASEAN, the broader Indo-Pacific and beyond by the end of 2022.

In the papers. Some of the academic research that caught our eye this week, summarized in one sentence: … The greater the share of a…

Senate Democrats cited a provision in the new stimulus bill to again call on Biden to cancel $50,000 in student loan debt through an executive order — despite the president previously stating that he would not do so. “Student loan debt is crushing millions of Americans,” Senators Elizabeth Warren (D-MA) told reporters on Monday. “President Biden has an opportunity to fix that with the stroke of a pen. This bill helps pave the way to cancel $50,000 in student loan debt.” The basic argument for the president to being able to forgive student debt, as detailed by the Legal Services Center of Harvard Law School, is that the Education Secretary has the power “to cancel existing student loan debt under a distinct statutory authority — the authority to modify existing loans found in 20 U.S.C. § 1082(a)(4).”

A year after making the difficult and somewhat disputed decision to de-densify Harvard’s campus, and a year after recovering from COVID-19 himself, Harvard President Larry Bacow sat down with the Gazette over Zoom to reflect on how the University and the community have met the challenges posed by COVID-19. Bacow also looked ahead to Harvard’s ongoing development in Allston and to a range of programs, collaborations, and initiatives aimed at tackling some of the world’s most pressing problems. ... For example, faculty at the Ed School are looking at issues of inequality in access to education. At the Law School, faculty are focused on the question of access to justice and inequality that serves to perpetuate racial injustice. ... With the combined forces of FAS, the Kennedy School, and the Law School, we probably have the strongest group of scholars anywhere working on public policy for addressing climate change.

Rep. Debra Anne Haaland of New Mexico was confirmed Monday as the country’s first Native American Cabinet-level official, becoming secretary of the interior. ... Other appointments include Robert Anderson, who will be one of Haaland’s top lawyers, and Jaime Pinkham, a Nez Perce tribal member, to a top post at the U.S. Army Corps of Engineers. Those appointments do not need to be confirmed by the Senate. Anderson has been appointed principal deputy solicitor at the Department of the Interior. He is enrolled in the Bois Forte Band of the Minnesota Chippewa Tribe and has taught at the University of Washington School of Law and directed its Native American Law Center for the past 20 years. He also has been a visiting professor at the Harvard Law School for more than a decade.

An op-ed by Noah Feldman: Friends, Romans, countrymen, law professors: Please stop telling Justice Stephen Breyer to retire. Yes, Breyer is a (healthy) 81. Yes, the Democratic Senate majority is wafer-thin, and it would likely be impossible for President Joe Biden to replace Breyer with another liberal if the Democrats lose even one of their 50 votes in the Senate. But here’s the thing: Breyer knows these facts already. But here’s the thing: Breyer knows these facts already. He is the one of the great pragmatist justices ever to have sat on the Supreme Court, following in the footsteps of Justice Louis Brandeis. Breyer also knows Capitol Hill, having worked there three separate times: once on the Watergate investigation and twice for the Senate Judiciary Committee. He can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he “must” resign.

The Biden administration isn’t awaiting a final price tag on a final greenhouse gas assessment metric before it starts working on new regulations — even though the final number could support even tougher regulation. ... Lengthy legal challenges that have plagued the EPA across administrations put “real pressure” on the agency to move fast, said Hana Vizcarra, a staff attorney with the Harvard Law School’s Environmental & Energy Law Program. That’s especially true, she said, when another four years in office isn’t guaranteed. “They want to see these things reach conclusion, they want to see courts actually consider the issues and make decisions, because that’s the only way anything will be lasting,” Vizcarra said.

Conspiracy theorist David Icke’s lies about COVID-19 caused Facebook, Twitter, YouTube, and Spotify to ban him. But on Amazon, Icke, who believes in the existence of lizard people, is recommended reading. ... Unlike other platforms, Amazon has not taken steps to remove COVID-19 misinformation entirely, or at least from its recommendation systems. Amazon’s approach means it’s profiting from sales of the conspiracy theory books, said evelyn douek, a lecturer at Harvard Law School who studies global regulation of online speech. “There's a strong argument that if you're making money off it, you should take more responsibility,” said douek.

An article by Tyler Giannini and Sondra Anton ’22: The United Nations Human Rights Council’s deliberations over yet another resolution on Sri Lanka this month has cast renewed attention on repeated failures to achieve any semblance of accountability for past atrocities, and on the deteriorating human rights situation over the past year following the return to power of accused war criminal Gotabaya Rajapaksa as president. The lack of accountability and concerns about future violations have rightfully received the bulk of the attention. But there is another question worth bringing to the fore – namely, how did an alleged war criminal return to power – and relatedly, should the human rights system have done more to prevent such individuals from taking official power again?

An essay by Jeannie Suk Gersen: Two weeks ago, The New Yorker published my article “Seeking the True Story of the Comfort Women.” I reported on recent claims by J. Mark Ramseyer, a Harvard Law School professor and Japanese legal-studies scholar, who said that the story of Korean “comfort women” forced into sexual servitude for the Japanese Army during the Second World War was, in his words, “pure fiction.” In an article published online by the International Review of Law and Economics, a peer-reviewed journal, Ramseyer asserted that the women were prostitutes who had freely entered contracts for compensated sex work. But, by following investigations into the article by historians of Japan and Korea, and speaking to Ramseyer himself, I found that he had made a multitude of basic errors and that he had no evidence of such contracts. “I thought it would be cool if we could get the contracts” for Korean comfort women, Ramseyer told me. “But I haven’t been able to find it. Certainly you’re not going to find it.” The history of the comfort women has presented a persistent obstacle for decades in the relations between Korea and Japan, which have been characterized by cycles in which Japan alternately acknowledges and denies responsibility, and Korea demands apology and rejects resolutions as insufficient.

Between 1525 and 1866, more than 12 million Africans were shipped to the New World as slaves. After some 200 years, slavery was abolished, and yet another century of Jim Crow, coupled with discriminatory housing and lending policies, contributed to its legacy. Dealing with the relics of that stain on American history is part of the national dilemma. But exactly how to do it is our question; something lawmakers in Washington are also now debating. A top aide to President Joe Biden recently said that the White House will ‘start acting now’ on reparations for African Americans. Some say it’s long over-due. Reparations, they say, are important to start to address the moral injury slavery inflicted. Others say direct payments to African Americans will divide the black community, exaggerate racial tensions and prove impossible to administer. Arguing that reparations are the way to go is Cornell William Brooks, former president and CEO of the NAACP.Arguing that direct payments to African Americans are not the most effective means of addressing the legacy of slavery, and that they could have unintended consequences is Randall LeRoy Kennedy is an American law professor and author at Harvard University.

The Biden administration is expected to give even greater weight to the negative effects of greenhouse gas emissions as it works on developing new “social costs” of carbon, methane and nitrous oxide that will impact government regulations. President Biden took the first step toward establishing a new formula when he revived an interagency group to work on calculating the costs of greenhouse gas emissions shortly after taking office. The costs are used by federal agencies to determine the benefit of regulations that prevent the gases from being emitted into the atmosphere, or, conversely, how great the costs are for not limiting emissions...Some experts noted that another challenge with social costs is ensuring they last longer than one administration. Achieving that goal, they said, is best achieved by having a strong scientific basis for the final numbers. “Courts do not look kindly on agencies that just swing dramatically back and forth on how they approach rulemaking,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. “What they’re looking for is a process that is backed up by objective facts and science.”

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.