Media Mentions

The humbling of New York Gov. Andrew Cuomo on pandemic policy has been spectacular and swift. Within a matter of days, one of America’s most trusted voices in the early days of the Covid-19 pandemic became a political pariah. Outrage over Cuomo’s decisions — first, to require nursing homes to accept Covid-19-positive patients when New York’s hospitals were overflowing, and then, to hide data about deaths of nursing home residents — has engulfed Albany in recent weeks. Court orders, leaks, and investigations revealed that Cuomo dramatically and intentionally understated the pandemic’s toll on nursing home residents in New York...Cuomo on March 25 issued the controversial directive that told nursing homes they couldn’t deny patients coming from hospitals admission based on a Covid-19 diagnosis. Evaluating the ethics of that directive is a little more complicated than evaluating your average executive order. In the midst of a crisis, public health ethicists said, policymakers don’t have the luxury of time to do typical outreach and data analysis, but they do have a responsibility to be as thorough as they can. Carmel Shachar, the executive director of Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, said it was ultimately Cuomo’s responsibility to ensure his staff was analyzing potential consequences.

An amazing thing happened last week when Facebook banned links to news articles in Australia. The Australian Broadcasting Corporation’s long-overlooked news app became the country’s hottest. The ABC app jumped from around 1,000 daily downloads to more than 15,000 in a day last week, according to mobile intelligence firm Apptopia. And by the time anyone looked up, it occupied the top spot on the country’s iOS and Google Play app stores. Facebook enacted its ban to protest an Australian law that would make the company pay news publishers. But instead of crushing ABC, the ban set it free...There are parts of the world that primarily get their news from Facebook, but it’s unlikely they’ll simply give up on news if it disappears from the platform. And though the dearth of news coverage did lead to spikes in engagement for politicians on Facebook in Australia — presumably from people seeking to fill the void — an absence of news links over time would change people’s behavior on Facebook. Scrolling for something to get mad about may well give way to curiosity about friends and family. Many in Australia have indeed been thrilled about their news-free news feeds. When Harvard lecturer Evelyn Douek asked her Australian friendswhat they thought, they could barely contain their enthusiasm. “It’s great actually,” wrote one. “Peaceful,” wrote another. “Who in the world would rely on Facebook for news???” wrote one more. News publishers, for one, still do rely on Facebook for news. And Facebook still relies on them.

Dominion Voting Systems and Smartmatic USA have a good shot at winning their billion-dollar defamation suits against a host of conservative personalities and, in the case of Smartmatic, Fox News, but they still have a lot to prove in court, experts say. Each of the two election technology firms has sued several boosters of former President Donald Trump, saying that they worked to spread conspiracy theories about each company’s products in order to cast doubt on President Joe Biden’s electoral victory...The lawsuits against Giuliani and Powell are likely to be more straightforward than the case against Fox News and its hosts, according to Harvard Law School professor John Goldberg, an expert on defamation. “I think with respect to Giuliani and Powell, there is pretty good evidence that will allow a jury to find actual malice by those defendants,” Goldberg said. “For example, Dominion has pointed out in its complaint that Giuliani, in his public statements out of court, was routinely talking about fraud, but every time he was in court and was under oath, so to speak, he said, ‘No, we are not alleging fraud, Your Honor.’” “They have a shot against Fox News and the Fox personalities, but it’s a little harder,” Goldberg said.

A podcast by Noah Feldman: Six of the nine Supreme Court Justices are members of a club called the Federalist Society. Noah Feldman speaks to Eugene B. Meyer, the president of the Federalist Society, about the organization’s goals, how it is funded, and how it operates. They also discuss Noah’s new audiobook about the organization called “Takeover: How a Conservative Student Club Captured the Supreme Court.”

An article by Ari Peskoe: Interstate transmission development is fragmented by local utility service territories. Parochial interests are impeding large-scale transmission projects, which in turn is slowing wind and solar deployment. The combination of discriminatory state laws and Federal Energy Regulatory Commission transmission planning rules shields utilities from competition within their local service territories and induces them to focus on developing small-scale local projects. These protectionist policies reinforce an anachronistic utility-by-utility approach to transmission planning that is failing to develop theregional transmission necessary to effectively decarbonize the power sector and mitigate the impacts of extreme weather. Consider Minnesota, where sixteen utilities own interstate electric transmission lines. A decade ago, the state legislature set that number in stone by granting these sixteen entities exclusive rights to build additions to their respective portions of the interstate power network. The state recently asked the U.S. Supreme Court not to invalidate that law because allowing a seventeenth entity to own transmission in Minnesota "would inject uncertainty" into the state’s power network and "risk unreliable transmission." These wholly unsupported claims, that belie the experience of transmission operators around the country, are at the heart of the state’s assertion that its exclusionary law has a legitimate basis and is not intended solely to protect local utilities from competitors.

One of two livestock ships at sea since mid-December with thousands of cattle on board is now at the Spanish port of Cartagena, but the fate of its cargo is unclear. The two vessels left from different ports in Spain before Christmas to deliver their cargoes of animals, but were each refused entry by various countriesincluding Turkey and Libya, owing to suspected outbreaks onboard both ships of the bovine disease bluetongue. Spain’s government and the country’s largest association of beef producers, Asoprovac, have both said the cattle came from areas free of bluetongue. On Tuesday, the Spanish news agency EFE reported that although Turkeyhad originally agreed to take the cattle, satisfied they were bluetongue free, the animals were rejected on arrival because of disease fears...Prof Kristen Stilt, director of Harvard’s Animal Law and Policy Program, who is writing a book about the transport of live animals, said it was an inherent risk with live transport that the animals would be rejected at their destination port. Once labelled as rejected, Stilt said it was “very likely that no other country [would] accept them, as we are now seeing with the two vessels at sea with calves from Spain”. Another problem for crew and livestock, she said, was the absence of an international arbiter that could assess claims of disease and make a binding determination. The result, she said, was “usually catastrophic in terms of loss of animal lives”.

An op-ed by Laurence Tribe: The 2020 election revealed rot in this country’s institutions. Donald Trump degraded the presidency; senators like Josh Hawley(R-Mo.) and Ted Cruz (R-Texas) degraded the Congress. And, in a direct shot at the legitimacy of Joe Biden’s election as our 46thpresident, Justice Clarence Thomas made clear that the “Big Lie” about the 2020 election — a major source of institutional decay — has infected the Supreme Court, too. Thomas staked out his Trumpian position in a dissent from the Supreme Court’s dismissal of two election-related lawsuits in Pennsylvania. Republicans in Pennsylvania had asked the Supreme Court to answer a recurring question that plagued the 2020 election: Does the United States Constitution permit the members of a state legislature, acting as a gang of elected lawmakers unconstrained by the state’s own constitution, to seize control of a presidential election by naming their own slate of electors to replace those chosen by the votes of the state’s people? The answer to that crucial question depends in part on parsing Article II of the U.S. Constitution, which establishes that presidential electors are appointed “in such Manner as the Legislature [of the State] may direct.” Some maintain that, by vesting the power to choose electors in state “Legislature[s],” the Constitution has designated a free-range bunch of state representatives to meet wherever they like and do whatever suits their fancy. They claim the Constitution authorized state legislatures to ignore procedural requirements (like the number of votes needed to pass a bill) drawn from the state’s constitution and even substantive state constitutional provisions (like those enshrining the right to fair and equal voting opportunities).

An op-ed by Jowei Chen and Nicholas Stephanopoulos: The gerrymandering wars are about to resume. Over the next year, every state in the country will have to redraw its congressional and legislative districts. In anticipation of redistricting, Republicans are eyeing a new tactic: For decades, states have equalized the numbers of people their districts contain. But the GOP is now pushing to equalize districts’ citizen voting-age populations instead. Under this approach, noncitizens and children would be invisible for remapping purposes. Only adult citizens would count. Republicans think that by omitting non-adult citizens from districts’ populations, they would slash the representation of minorities and Democrats. Their logic goes like this: At present, many districts with non-White or Democratic legislators have relatively low proportions of adult citizens. So these districts would have to grow in size — and shrink in number — to acquire enough adult citizens to hit their new population targets. Conversely, many districts with White or Republican legislators have higher shares of adult citizens. These districts would shed some of their residents into adjacent districts in a world where adult citizens, not people, had to be equalized. These dispersed voters would tilt their new districts in a conservative direction.

The Network is a group of high-level digital security experts from across government, the private sector and security research community invited by The Washington Post to vote in surveys on the most pressing issues in the field. Our regular surveys will highlight insights from some of the most influential people in cybersecurity...Camille Francois is the research and analysis director at Graphika, where she leads a data science and analysis team focused on analyzing social media manipulations...Francois is a cybersecurity fellow at the New America Foundation and an affiliate at the Harvard-Klein Berkman Center for Internet and Society, where she pursues her work on mechanisms to establish peace and security in the face of cyber conflict...Matthew Olsen is the president and chief revenue officer at IronNet Cybersecurity. He previously served as director of the National Counterterrorism Center, general counsel for the National Security Agency and in a number of leadership positions at the Justice Department. Olsen teaches at Harvard Law School...Jonathan Zittrain: Harvard law and computer science professor and co-founder of the Berkman Klein Center for Internet and Society, Zittrain’s research interests include battles for control of digital property and content, cryptography, electronic privacy, the roles of intermediaries within Internet architecture, human computing and the deployment of technology in education.

In early February, politicians from India’s ruling Bharatiya Janata Party started signing up for a social network that almost nobody had heard of...The timing wasn’t coincidental. For days, India’s government had been locked in a fierce tug-of-war with Twitter, which defied a legal order to block accounts critical of India’s Hindu nationalist government, including those belonging to journalists and an investigative news magazine. In response, India’s IT ministry threatened to send Twitter officials to jail. Amid the standoff, government officials promoted Koo as a nationalist alternative, free from American influence...As the global internet splinters, and mainstream platforms like Facebook and Twitter square off against nation states and fitfully crack down on hate speech, nationalist alternatives are springing up to host it, something that experts say is a growing trend. “This content wants to find new homes,” evelyn douek, a lecturer at Harvard Law School who studies global regulation of online speech, told BuzzFeed News. Hate speech, disinformation, harassment, and incitement that mainstream platforms have been grappling with for years are particularly problematic on platforms like Koo, she said, because those sites come under less scrutiny. “These problems come to every platform in the end,” douek said, “but with the proliferation of these alternatives, there’s likely to be far less attention and pressure on them. It also creates the possibility that there will be a global internet that has one kind of discourse, and completely alternative conversations happening on national platforms in parallel.”

An op-ed 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 back 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. Unifying into a single nation would have been practical for the early United States. At the Philadelphia constitutional convention, big-state representatives, including Madison, favored a heavily national model of government to replace the failing decentralized system created by the Articles of Confederation.

It seems there’s no end to them. They are the recent videos and reports of Black and brown people beaten or killed by law enforcement officers, and they have fueled a national outcry over the disproportionate use of excessive, and often lethal, force against people of color, and galvanized demands for police reform...Alexandra Natapoff, Lee S. Kreindler Professor of Law, sees policing as inexorably linked to the country’s criminal justice system and its long ties to racism. “Policing does not stand alone or apart from how we charge people with crimes, or how we convict them, or how we treat them once they’ve been convicted,” she said. “That entire bundle of official practices is a central part of how we govern, and in particular, how we have historically governed Black people and other people of color, and economically and socially disadvantaged populations.” ... Retired U.S. Judge Nancy Gertner also notes the need to reform federal sentencing guidelines, arguing that all too often they have been proven to be biased and to result in packing the nation’s jails and prisons... “The disparity in the treatment of crack and cocaine really was backed up by anecdote and stereotype, not by data,” said Gertner, a lecturer at HLS. “There was no data suggesting that crack was infinitely more dangerous than cocaine. It was the young Black predator narrative.” ... At Harvard Law School, students have been studying how an alternate 911-response team might function in Boston. “We were trying to move from thinking about a 911-response system as an opportunity to intervene in an acute moment, to thinking about what it would look like to have a system that is trying to help reweave some of the threads of community, a system that is more focused on healing than just on stopping harm” said HLS Professor Rachel Viscomi, who directs the Harvard Negotiation and Mediation Clinical Program and oversaw the research.

Chances are it is the most influential amendment to the US constitution that you aren’t familiar with. Given its impact, it is astonishing how little the 14th amendment is discussed in public life. Americans can’t rattle it off like the first and second amendments – but its words have fundamentally shaped the modern definition of US citizenship and the principles of equality and freedom entitled to those within the country’s borders...The amendment is a lodestar for all claiming the constitutional right to be treated fairly. Women, with the help of then attorney Ruth Bader Ginsburg, convinced the court in the 1970s that the 14th’s equal protection clause should apply to gender in the same way it is applied to race, both being immutable characteristics that don’t affect one’s ability. But women’s equality depends on control over their own bodies and the choice of when and whether to have children. In 1965, the right to privacy was established, founded on the 14th amendment’s due process clause, and this new concept was applied to Roe v Wade in 1973, which legalized abortion by determining that the decision to end a pregnancy belongs to the woman, not the state. “It’s an unfolding process,” said Jeannie Suk Gersen, a Harvard law professor, of the 14th amendment extending to the right to abortion. “It may not seem obvious as a path, but that is the process of constitutional law.”

Arthur Lange was 100 feet from his driveway when the California patrol officer behind him flipped on his flashing lights. Rather than stop, Lange turned toward his Sonoma County home, pulled into his garage and closed the door. What happened over the next few seconds prompted years of litigation and a case to be argued Wednesday at the Supreme Court with sweeping implications for police power...Lange's case comes to the court at a moment of tension between police and communities of color after the police killing last year of George Floyd, a 46-year-old Black man. The incident, and others like it, prompted nationwide protests and some riots over the summer, forcing a national discussion about racism and police use of force. One of those incidents was the 2020 shooting death of 26-year-old Breonna Taylor, which occurred after police entered her Louisville, Ky., apartment during a drug investigation. Police had obtained a "no-knock" warrant, allowing them to conduct a search without notification. The city subsequently banned no-knock warrants. Some observers said expanding the circumstances under which a police officer may enter a home without a warrant could exacerbate the fraught relationship. "It wouldn't open the door, it would open the flood gates to police entry into a home," said Alexandra Natapoff, a Harvard Law professor who has written widely on the proliferation of misdemeanor crimes. "It would seem to be exactly the backward response to everything we have learned from George Floyd and Black Lives Matter."

An op-ed by Michael Klarman: Supporters of donald trump assaulted the capitol on January 6, 2021, but American democracy has been under siege for far longer—from both former President Trump and the Republican Party. Trump’s transgressions against democracy are well known: They include having attacked the press as the “enemy of the people,” assailed sitting judges, politicized the Justice Department and the intelligence agencies, undermined transparency in government, encouraged political violence, and delegitimized elections. The Republican Party’s undermining of democracy began much earlier. Since about 2000, the party has tried to suppress Democratic votes through stringent voter-identification laws and purges of voter rolls. In addition, Republican legislatures have grotesquely gerrymandered legislative districts, enabling Republicans to maintain control of state legislatures and, at times, the House of Representatives, while failing to win majorities of the vote. Republicans have also erected obstaclesto college students’ voting, delayed elections that they anticipated they would lose, and eviscerated the powers of Democratic governors. Republican state legislators have also rejected the results of voter initiatives and imposed obstacles to putting such initiatives on the ballot in the first place.

Laurence Tribe, a professor emeritus at Harvard Law School, says Judge Merrick Garland's would be "one of the greatest attorneys general in American history." Tribe spoke with CBSN's Anne-Marie Green and Vladimir Duthiers about why Garland is right for the job and what he can do to fight extremism and racism.

The race to vaccinate as many people as possible while more contagious coronavirus variants march across America is colliding with lagging efforts to steer shots to people of color and underserved communities bearing the brunt of the pandemic. Though the Biden administration has prioritized equitable vaccine distribution, putting that goal into practice is difficult. Local public health officials are under pressure to quickly distribute their limited supplies and reach high-risk groups first in line. So far, limited data continues to show that people in hard-hit minority communities are getting vaccinated at a much slower pace than people in wealthier white ones... After the initial slow vaccine rollout, many states with Washington’s encouragement began offering vaccines to people from age 65, rather than limiting eligibility to people 75-plus and frontline workers as the Centers for Disease Control and Prevention originally recommended. That meant millions more were seeking shots than were available. States and the Biden administration have set up megasites to help pick up the vaccination pace, but those aren’t all easily accessible for people who don’t have cars or internet connections to make appointments. Disparities in the vaccine rollout remain stark...The variants do likely mean more cases — and more deaths. While new infections and hospitalizations have been declining for weeks, case counts remain high. Health experts have warned that the variants could bring a new surge as they gain a foothold across the country. “Every day that somebody doesn’t have the vaccine they are that much more vulnerable,” said Carmel Shachar, who heads Harvard Law School’s bioethics center. “We’ve lost some of the cushion,” she said. “And we didn’t have a great cushion.”

We live in an age of competing economic narratives. President Biden tells the story that a $1.9 trillion stimulus bill will help the economy, while Republicans tell the story that the bill is too big and will cause inflation. As the Nobel-prize winning economist, Robert Shiller, points out his wonderful book, Narrative Economics(Yale, 2019), mega-narratives drive public discourse and our lives. Nowhere is this more true than in management, which for the last hundred years has been driven by competing mega-narratives...In August 2019, big-business CEOs could no longer take the political heat. Shareholder value was renounced by the CEOs of more than 200 of the largest corporations who signed a new formal declaration of the BRT. The new declaration foreshadowed a supposed return to an older mega-narrative stakeholder capitalism—an approach that had already been tried and discredited in the mid-20th century. In the period since the 2019 declaration was issued, research by Harvard Law Professor Lucian Bebchuk and his colleagues have been unable to detect evidence of any significant change in corporate behavior. Few of the signatory CEOs obtained the approval of their boards to sign the announcement. Bebchukconcludes that shareholder value remains the guiding narrative for most big business. In effect, the declaration was done “mostly for show.” Shareholder value is still the dominant mega-narrative of American business.

A fundamental flaw in the freewheeling Texas electricity market left millions powerless and freezing in the dark this week during a historic cold snap. The core problem: Power providers can reap rewards by supplying electricity to Texas customers, but they aren’t required to do it and face no penalties for failing to deliver during a lengthy emergency. That led to the fiasco that left millions of people in the nation’s second-most-populous state without power for days. A severe storm paralyzed almost every energy source, from power plants to wind turbines, because their owners hadn’t made the investments needed to produce electricity in subfreezing temperatures...Within the competitive Texas power market, there is a strong incentive for generators to keep costs down to recoup their investments. The rapid buildout of wind and solar power, which are now among the cheapest sources of electricity, have pushed prices even lower in recent years, making it more difficult for gas and coal plants to compete. For plant owners, that presents a paradox: Should they add to their capital costs by preparing for severe cold snaps that occur only occasionally, or skip the preparation and risk tripping offline, missing out on high prices and exacerbating a potential supply shortage? “With everything there is a trade-off,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “More resilience is potentially more expensive, but electricity is an essential service. These are hard decisions.”

Federal investigators have signaled some of the defendants in the attack on the U.S. Capitol could be charged with seditious conspiracy, a law enacted to target those who attacked the federal government during the Reconstruction era. An indictment filed on Jan. 27 charges three of the riot suspects with conspiring to impede Congress' certification of the Electoral College vote for the 2020 presidential election...Many attorneys say it would be appropriate to charge some of the Capitol rioters with seditious conspiracy or with violating another federal law that criminalizes insurrection and rebellion against the United States. Those laws “seem tailor-made to cover the precise course of conduct engaged in by a number of the defendants who either have been or might still be charged in the attack on the Capitol,” said Laurence Tribe, a constitutional law expert at Harvard Law School...Other court documents show that two suspects charged with conspiracy were seen that day with leaders of the Proud Boys, an extremist group with ties to white nationalism. Tribe said it is difficult for outsiders, even legal experts, to forecast the appropriate charges against riot suspects “without knowing the detailed evidence that a thorough Justice Department investigation is likely to uncover.”

Harvard Law Professor Jeannie Suk Gersen ’02 on the law, trauma, and “the rhetoric of believing.”