Media Mentions

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.

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).