Media Mentions

In this episode of Third Degree, Elie Honig is joined by Harvard Law student and former Trump administration speechwriter Eli Nachmany ‘22 to discuss the Manhattan District Attorney’s growing investigation into former President Trump’s financial records, and how history will remember former Attorney General Bill Barr.

When news broke late last year that a massive, years-long Russian cyberespionage had penetrated large parts of the U.S. federal government and its information technology systems, policymakers were quick to describe the breach as “an act of war” and that the United States must strike back. But the breach that leveraged weaknesses in software developed by the company SolarWinds was not an act of war. It was an act of espionage. The United States has experienced cycles of outrage over Russian espionage before and mislabeling espionage as an act of war risks leading the United States toward the wrong response. To understand why the SolarWinds breach was an act of espionage, and not an act of war, it is worth considering the technical details of the breach...Today, a number of different policy proposals have been floated in response to the SolarWinds breach. One former supply chain security official at the Department of Homeland Security has argued in favor of greater oversight of software suppliers. Others have proposed greater incentives for software firms to build secure products. The computer security expert Bruce Schneier recently noted that the economic incentives for companies to fix their own cybersecurity problems before they impact customers are misaligned. Companies can transfer the risk of a data breach or cybersecurity incident to their customers or to taxpayers with little or no financial impact.

Food bank operators and lawmakers are pushing President Joe Biden’s administration for systematic changes to the federal food box program to help feed hungry Americans during the coronavirus pandemic. Nonprofit leaders also foresee a future need for continued government assistance, even when the nation finally recovers from Covid-19. “The nationwide network of food banks really are dependent upon government food right now,” said Pamela Irvine, president and CEO of Feeding Southwest Virginia. Her nonprofit has received about 1 million pounds of food through the Farmers to Families Food Box program—an Agriculture Department initiative that buys and distributes boxes of produce, meat, and dairy to food banks in an effort to help families put food on the table and give agriculture producers an economic boost...Overall, the initiative helped mitigate distributor job loss, involved small-to-mid-sized farms initially, reduced food waste to an extent, and made improvements in its first four rounds, according to a February report by Harvard Law School’s Food Law and Policy Clinic and the National Sustainable Agriculture Coalition. The program should make adjustments to step up support for minority- and women-owned farms, compensate small and specialty farms adequately, and restore non-combination boxes—those consisting solely of either produce, meat, or dairy—among other provisions, the groups recommended. “With changes, this Program also could serve as the model for a long-term food system solution,” said professor Emily Broad Leib, the faculty director for the Food Law and Policy Clinic.

An op-ed by Cass Sunstein: Why do people credit falsehoods? Why don’t they dismiss them? Here is a large part of the answer: Most of the time, we tend to believe other people. When they tell us things, we assume that they are telling the truth.To be sure, we consider some people untrustworthy, perhaps because they have so proved themselves; perhaps because they belong to a group that we think we should distrust. But on average, we trust people even when we should not. We pay too little attention to clear evidence that what is being said is false. We fail to discount for the circumstances. For instance, what if I said: In recent months, scientists have found that climate change is unlikely to be a serious problem. On balance, most people will be unaffected by it. People in the United States and Europe are unlikely to be affected at all. To be sure, there will be some harmful effects elsewhere, including Rwanda and South Africa, but even there, those effects will be small. Remarkably, most of the world’s population will be better off, because the world will be warmer. Actually that is false; I made it up. But if you’re like most people, that false statement might well linger in your memory, making you think, at least for a little while and in some part of your mind, that climate change isn’t a serious problem. (Sorry.)

An op-ed by Noah Feldman: Yesterday’s  Supreme Court arguments in a major voting rights case portend what appears to be the future of election law: The continuing withdrawal of the court from the role of policing elections for racial fairness. Call this the Roberts Doctrine. The chief justice has been pushing the agenda of judicial disengagement from voting rights issues since 2012, when he wrote a landmark decision in the case Shelby County v. Holder, striking down section 5 of the Voting Rights Act of 1965. The new case, out of Arizona, addresses Section 2 of the same act. The court may well be poised to weaken that part of the law to make it harder to challenge a state’s voting practices as racially discriminatory. If it does, this will continue the judicial pullback from a role the courts have played since 1964, when the Supreme Court established the principle of one person, one vote. The Roberts Doctrine reflects the chief justice’s particular jurisprudence, one profoundly influenced by the thinking of the late Justice Felix Frankfurter, who retired from the court in 1962 and died in 1965. Frankfurter was the father of the modern doctrine of judicial restraint. When Roberts follows Frankfurter in declining to strike down legislation, as he partly did in the Affordable Care Act case, liberals like it. When he follows Frankfurter in restraint around election law challenges, as he did in rejecting former president Donald Trump’s judicial challenges to the 2020 election results in Pennsylvania, liberals applaud that, too.

Advocates inundated the docket this week in a U.S. Supreme Court case concerning green cards for certain temporary protected status holders, with groups including Harvard University and the Service Employees International Union backing permanent residency for all TPS recipients...Representatives from the Harvard Immigration and Refugee Clinical Program emphasized that the transient nature of the category placed a psychological burden on holders who were unable to transition to a different visa program, requiring some to pay hefty registration fees repeatedly and barring them from sponsoring family members still trapped in unstable countries.

Private equity firms are proving there’s still plenty of profit in the U.S. coal industry despite a decade of falling demand for the fossil fuel. They are spending billions of dollars buying coal-fired plants on the cheap - and getting paid even when they are not providing power. Since the end of 2014, at least five U.S. private equity firms have bought coal plants in markets where regulators pay them to be on standby to provide emergency power when demand surges with extreme hot or cold weather, according to a Reuters review of U.S. regulatory disclosures and credit-rating agency reports...FERC did not respond to requests for comment, and the White House declined to comment. “I’m confident, in the next couple of years, FERC will order changes,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. Policy changes could make it harder for highly-leveraged private equity owners of coal plants, like Lightstone, to refinance their debts, according to Richard Donner, a credit analyst at Moody’s Investors Service. About $1.7 billion in the company’s debt comes due in 2024. Even so, Lightstone’s creditors are the ones with the greatest risk, according to Peskoe. “Somehow the private equity guys always make out OK,” Peskoe said. “It’s everyone else who doesn’t.”

An op-ed by Noah Feldman: In a stunning, generation-defining decision, Israel’s Supreme Court has unanimously ruled that people who became Jews through Conservative and Reform conversions must be considered as Jews for purposes of the country’s Law of Return, allowing them a fast-track to citizenship. Israel’s legislature, the Knesset, has the authority to reverse the decision and restrict the Law of Return to Orthodox converts. That may well happen — but if it does, it would represent a serious blow to relations between American Jews, most of whom are not Orthodox, and the state of Israel. The Law of Return is foundational to Israel’s self-concept as a Jewish democratic state. It establishes the principle that Jews may become citizens of Israel simply by showing up in the country and declaring their intention to become citizens. As written, the law defines a Jew as “one who was born to a Jewish mother or converted, while not being a member of another religion.” The case before the Supreme Court involved the vexed question of the meaning of the word “converted”: Which conversions count as qualifying a person for citizenship under the law? The answer has massive implications for the nature of Israeli identity.

A podcast by Noah Feldman: Dr. Carl Hart, neuroscientist and author of the provocative new book “Drug Use for Grown Ups: Chasing Liberty in the Land of Fear” questions the way we understand, regulate, and police drugs in America. Dr. Hart argues that most drugs are safer than we realize, and the negative effects of drugs are overstated and misunderstood. His research raises larger questions about policing, race, poverty, and mental health.

An op-ed by Isaac S. Kohane and Jonathan Zittrain: Medical schools teach students a four-part “virtuous cycle” in which one step positively reinforces the next: Assess the patient. Implement a therapeutic plan. Assess the patient’s response. Revise the therapeutic plan as needed. In an emergency department, this cycle can be completed in minutes. In the cancer clinic, it can take months. Mastering the virtuous cycle is understood to be a central measure of medical competence. Yet when the patient is not one person but an entire society, this cycle is fractured and ad hoc in ways that would make any patient demand a new doctor. We’ve all been witness to — and victims of — this failure in the pandemic. The superb accomplishments of therapeutic medicine cannot address the population-based issues that Covid-19 has raised. But we can use the virtuous cycle as a way to switch gears to employ approaches drawn from disciplines like public health. For the first step, assessment, doctors were unable to define the most basic clinical course of severe Covid-19, despite billions of dollars invested to achieve interoperable electronic health records over the past 30 years. It took clinicians and researchers months to identify the interplay of inflammation, coagulopathy, and cardiac dysfunction, and then only through a jury-rigged combination of conference calls and small studies shared through disparate nuggets of preprints.

Do not shed a single tear for the plaintiffs' lawyers who won final approval on Friday for the biggest privacy class action settlement in U.S. history. The deal calls for Facebook to pay $650 million for allegedly violating the Illinois Biometric Information Privacy Act by employing facial recognition technology to allow users to “tag” photos of their friends. U.S. District Judge James Donato of San Francisco awarded class counsel from law firms Robbins Geller Rudman + Dowd; Edelson; and Labaton Sucharow $97.5 million in fees, or 15% of the class recovery. That’s a lavish payday by any reckoning...One of the experts who backed class counsel’s fee request, Harvard Law School professor William Rubenstein, said in his declaration that what made this case exceptional was both the outcome class counsel obtained – the biggest-ever settlement in a privacy class action and by far the biggest recovery per class member in a privacy case – and the “remarkably low” number of hours it took plaintiffs’ lawyers to get those results. Rubenstein’s declaration was informed by two sets of data: a set of more than 1,000 class action settlements approved between 2007 and 2011; and a separate compilation of information about lodestar billings from 19 class action settlements approved in the Northern District of California in 2019.

The Trump administration quietly took around $10 billion from a fund meant to help hospitals and health care providers affected by Covid-19 and used the money to bankroll Operation Warp Speed contracts, four former Trump administration officials told STAT. The Department of Health and Human Services appears to have used a financial maneuver that allowed officials to spend the money without telling Congress, and the agency got permission from its top lawyer to do so. Now, the Biden administration is refusing to say whether the outlay means there will be less money available for hospitals, physicians, nursing homes, and other providers...But several attorneys said HHS officials likely had wiggle room in the language of the Covid-19 relief bills to spend funds on Operation Warp Speed contracts. Lawmakers gave HHS broad authority to decide how to distribute money in the Provider Relief Fund, though so far the publicly announced grants have gone to more traditionally defined health care providers. Ted Waters, a managing partner at Feldesman Tucker Leifer Fidell, said courts generally defer to expert federal agency interpretation on use of funds unless there’s a clear conflict. A supportive HHS Office of the General Counsel opinion could help protect individuals from liability, said Harvard Law School professor and federal budget expert Howell Jackson.

Players from the National Football League were among the first to voice their support. Then came Stacey Abrams, the Democratic star who helped turn Georgia blue in the 2020 election. The actor Danny Glover traveled to Bessemer, Ala., for a news conference last week, where he invoked the Rev. Dr. Martin Luther King Jr.’s pro-union leanings in urging workers at Amazon’s warehouse there to organize. Tina Fey has weighed in, and so has Senator Bernie Sanders. Then on Sunday, President Biden issued a resounding declaration of solidarity with the workers now voting on whether to form a union at Amazon’s Bessemer warehouse, without mentioning the company by name... “This is an organizing campaign in the right-to-work South during the pandemic at one of the largest companies in the world,” said Benjamin Sachs, a professor of labor and industry at Harvard Law School. “The significance of a union victory there really couldn’t be overstated.” ... Mr. Sachs, of Harvard Law School, said that despite Mr. Biden’s admonishments of companies’ interfering in elections, the current labor law does allow Amazon to hold certain mandatory meetings with workers to discuss why they shouldn’t unionize and enables the company to post anti-union messages around the workplace. “It is very helpful that the president is calling out these tactics, but what we need is a new labor law to stop companies from interfering,” he said.

In just a few short years, Amazon’s warehouse workers have gone from suffering in silence to jobsite walkouts in Minnesota and more recently a full-blown union vote in Alabama. Now it seems another segment of Amazon’s workforce is taking its first steps towards advocating for better conditions. In an informal driver-led survey shared with Gizmodo, hundreds of U.S. and Canada-based delivery drivers—who transport packages for but are technically not employed by Amazon—describe constant surveillance, to-the-second time crunches, and accelerated work with stagnant pay. And the vast majority say they’d like to unionize...Harvard professor and labor rights expert Benjamin Sachs advocates for a complete overhaul of FDR-era labor law in order to accommodate such non-employee-employees. (See his “Clean Slate” agenda, designed with former National Labor Relations Board member Sharon Block.) In the shorter term, he said, the National Labor Relations Board could authorize states to allow sectoral bargaining, an expansive bargaining system more common in Europe, which allows workers to bargain with multiple employers so long as they’re performing work in the same sector. “You can franchise and subcontract anything,” Sachs told Gizmodo over the phone. “More and more companies are getting away with these games that have enormous human costs, that allow companies to maintain control and profits while shedding all responsibility to the workforce.”

Join the Harvard Law School Library on March 11 for a live screening and panel discussion of “Racially Charged: America’s Misdemeanor Problem,” a new documentary about the racial history and modern discrimination of the American misdemeanor system. The film was inspired by HLS Professor Alexandra Natapoff’s book, “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.” The screening is also part of the Policing in America lecture series at HLS.

In the first of a multipart Harvard Gazette series on issues of race and inequality across the U.S., Harvard Law and University experts explore the experience of people of color with the criminal justice legal system in America.

An essay by Noah Feldman: There wasn't much President Joe Biden could have done about this month's Texas energy disaster. Ditto the slow-moving vaccine rollout. The reason is the same: federalism, a system dating to the 1780s and only seriously overhauled once. Although federalism still has some benefits, its obsolescence is increasingly obvious when the U.S. faces crises that, like climate change and COVID-19, don't respect state boundaries. Energy and health care are only two of the crucial infrastructure systems that remain state-regulated or state-run. And many of those systems are in need of updating everywhere − not piecemeal, as federalism tends to support. Federalism was, in important ways, an American invention, the brainchild of James Madison. It was a product of political necessity for 13 states that had been separately administered as British colonies and that had already tried and failed to function as a loose confederation between 1776 and 1787.

In November last year, the largest business and professional associations in the Philippines — collectively called the Philippine Business Group (PBG which includes the Management Association of the Philippines, sponsor of this column) signed a “Covenant for Shared Prosperity” by which it pledged to address the universal issues of economic and social inequality and non-inclusivity by ensuring “… ethical wealth creation and the sharing of prosperity with all their stakeholders.” ... There have been serious objectors to the idea of Stakeholder Capitalism, notably from academe. According to Harvard Law School Professor Lucien Bebchuk, the Business Roundtable’s statement that companies have responsibilities to society equal to their responsibilities to shareholders is “largely cosmetic,” adding that “… when CEOs and other corporate leaders face choices, they do not give independent weight to the interests of stakeholders.”

A lot is at stake when Andy Jassy takes over for Jeff Bezos as CEO of Amazon later this year. Harvard Law School reports that over half of CEO transitions fail, and a leadership misstep at the company would cause serious consequences for hundreds of thousands of employees, markets, and other businesses—not to mention millions of customers. I’ve examined the challenges that threaten a smooth succession and transition of power at Amazon and what I’ve learned explains how leadership transition failure can be avoided at any company.

What if we could instantly double COVID-19 vaccine availability in America? This is the tantalizing prospect raised by data collected while testing the double-dose regimen for the Moderna and Pfizer vaccines. As two Canadian researchers highlighted in a letter to the New England Journal of Medicine this month, both vaccines have been found to achieve 92 percent efficacy 14 days after a recipient has been given just one dose. The second dose, administered three to four weeks after the first, offers comparatively small gains by this measure: It boosts the Pfizer vaccine's efficacy to 95 percent, and the Moderna vaccine's to 94 percent, differences of just three and two points, respectively...I reached out to I. Glenn Cohen, a professor of health law and bioethics at Harvard University, and Holly Fernandez Lynch, an assistant professor of medical ethics at the University of Pennsylvania. Together they edited FDA in the Twenty-First Century: The Challenges of Regulating Drugs and New Technologies, which explores the FDA's function, successes, and failures...If the companies do apply for a change, Cohen said he would expect the FDA to move quickly enough to give an answer within the critical period of vaccine shortages this spring. "As agencies go, FDA is appropriately careful in their review of these matters," he said, "but given the amount of data experience they have with Pfizer and Moderna thus far, if provided appropriate data, I think they could probably make a determination of whether such a change was warranted fairly quickly."

An essay by Jeannie Suk Gersen: In January, I was outlining an article I hoped to write about a recent judgment by a South Korean court ordering Japan to pay compensation for atrocities committed during the Second World War against “comfort women,” women and girls who were transported to war-front “comfort stations” to provide sexual services to soldiers in the Imperial Japanese Army. The women were taken by force or entrapped by deception in many countries in and beyond Asia, but a large number came from Korea, which, at the time, was a colony of Japan. Estimates of the number of victims have ranged widely, from tens of thousands to hundreds of thousands. On January 23rd, Japan announced that the Korean court’s judgment, which ordered a compensation of ninety-one thousand and eight hundred dollars to be paid to each of the twelve Korean comfort women who were plaintiffs in the case (seven of whom had died since it was filed, in 2013), was “extremely regrettable and absolutely unacceptable.” Japan said that it was not subject to Korea’s jurisdiction and considered the matter to have been previously settled. I was ruminating on how legal decisions relating to Second World War crimes against humanity might help resolve or aggravate historical traumas that seem impossible to leave in the past—in part, because they have been mired in waves of conflict and denial about the truth of what happened.