Media Mentions

An article by Evelyn Douek: The long international nightmare is not over. By now, you will have read that on Wednesday the Facebook Oversight Board (FOB) upheld Facebook’s Jan. 7 restriction on former President Donald Trump’s account, largely on the basis of the ongoing violence at the time of the posts that led to the ban. But the FOB did not settle the matter for once and for all: It punted the question of what to do with the account now back to Facebook. It dinged Facebook’s “indefinite” ban as a “vague, standardless penalty”—“indefinite,” according to the FOB, is very much not synonymous with “permanent.” Now, Facebook has six months to conduct a review of what to do with Trump’s account. The decision is meaty and educational. It contains a number of recommendations which, if Facebook follows, will significantly improve the clarity and mitigate the arbitrariness of Facebook’s decision-making. It is also an attempt to split the baby—not letting Trump back on, but also not demanding a permanent ban of his account—and to avoid the inevitable controversy that would have attended any final decision.

A story by Annette Gordon-Reed: When I was growing up in Conroe, Texas, about 40 miles north of Houston, my classmates and I took Texas history twice, in the fourth and seventh grades. We learned about Texas’s history in the United States, its previous existence as a republic, and its time as a province of Mexico. Among other things, we were exhorted to “remember the Alamo” and “remember Goliad,” famous events in Texas’s fight for independence from Mexico. Some other aspects of the state’s history were less covered. I didn’t need school lessons to tell me that Black people had been enslaved in Texas, but in the early days of my education, the subject was not often mentioned. Some of our lessons did, however, involve the “period of Spanish exploration.” And I remember hearing in those lessons stray references to a man of African descent—a “Negro” named Estebanico—who traveled throughout what would become Texas. Estebanico was described, according to Andrés Reséndez’s book A Land So Strange: The Epic Journey of Cabeza de Vaca, as a “black Arab from Azamor,” on the coast of Morocco. A Muslim, he had been forced to convert to Christianity and sold away from his home to Spain; he eventually found his way to Texas in the company of the famous explorer Álvar Núñez Cabeza de Vaca. He arrived in the area of the future Galveston, where Union General Gordon Granger would proclaim the end of the Civil War and the end of slavery in Texas more than 300 years later, on the day now known as Juneteenth. Estebanico’s journey across Texas as an interpreter for Cabeza de Vaca made him one of the first people of African descent to enter the historical record in the Americas.

Asian American and Pacific Islander elected officials make up just 0.9% of elected leaders in the U.S., despite AAPIs accounting for 6.1% of the population, according to a Reflective Democracy Campaign report released Tuesday. Why it matters: The report comes amid growing calls for greater AAPI visibility, following two mass shootings in which East Asian women and Sikh Americans were killed. The country has also witnessed a yearlong spike in anti-Asian incidents. Asians are the fastest-growing racial group in the U.S. and are projected to become the largest immigrant group by 2055. Without adequate representation, governments are unable to serve vulnerable AAPIs with the cultural competency and language access they require...The bottom line: "The people making and carrying out the political choices that affect AAPI communities don’t reflect them," said Premal Dharia, executive director of Harvard Law School's Institute to End Mass Incarceration, per the Reflective Democracy Campaign. "It is imperative that this change."

In February 2019, the U.S. Department of Agriculture (USDA) made a significant—and apparently secret—change to how it oversees laboratory animal welfare, Science has learned. Instead of fully inspecting all of the nearly 1100 facilities that house monkeys, rabbits, and other creatures used in biomedical research, it mandated partial “focused” inspections for labs accredited by a private organization of veterinarians and scientists called AAALAC International. Such partial inspections violate the Animal Welfare Act, argues Katherine Meyer, director of Harvard University’s Animal Law and Policy Clinic, which discovered the change after law student Brett Richey combed through more than 1000 pages of internal USDA documents. The federal law states that USDA must enforce “minimum requirements for handling, housing, [and] feeding” of research animals, as well as adequate veterinary care, Meyer notes. “How do you ensure that labs are in compliance with those standards if USDA is doing incomplete inspections?” ... Meyer argues that AAALAC itself is problematic. She and others in the animal advocacy community have long contended that the organization is not an appropriate substitute for USDA because it only inspects institutions every 3 years, is made up of many of the same people that run animal research facilities, and—unlike USDA—schedules inspections in advance rather than showing up unannounced.

The Republican Party appears to be signaling they want to essentially excommunicate from leadership Congresswoman Liz Cheney of Wyoming. Tennessee Republicans want to ban lessons on systemic racism in schools. President Joe Biden aims to vaccinate 70 percent of adults by July 4th. Tomorrow, Facebook’s oversight board is set to announce whether Donald Trump can return to the company’s platforms. Guests: London Lamar, Michael Lewis, Evelyn Douek, Adam Conner.

If the sweeping voting rights bill that the House passed in March overcomes substantial hurdles in the Senate to become law, it would reshape American elections and represent a triumph for Democrats eager to combat the wave of election restrictions moving through Republican-controlled state legislatures. But passage of the bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade. “I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos, a law professor at Harvard...Even if every one of the objections to the bill discussed in this article were to prevail in court, most of the law would survive. “Part of why the attack on H.R. 1 is unlikely to be successful in the end is that the law is not a single coherent structure the way Obamacare was,” Professor Stephanopoulos said. “It’s a hundred different proposals, all packaged together.” “The Roberts court would dislike on policy grounds almost the entire law,” he added. “But I think even this court would end up upholding most — big, big swaths — of the law. It would still leave the most important election bill in American history intact even after the court took its pound of flesh.”

A podcast by Noah Feldman: During the pandemic, we’ve been looking at our screens more than ever before. As the country starts reopening, what do we do about our kids’ extreme attachment to their devices? How should we think about it and do we need to do anything about it? Parenting expert Dr. Wendy Mogel joins us to discuss these deep questions about pandemic parenting. Dr. Mogel is the author of “The Blessing of a Skinned Knee” and host of the podcast Nurture vs. Nurture.

Professor and author Annette Gordon-Reed continues her week-long discussion on Morning Joe of the themes in her new book 'On Juneteenth'.

On Jan. 6, as an angry mob stormed the U.S. Capitol, President Donald Trump posted on Facebook that his supporters should “remember this day forever.” “These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long,” he said in a post. In response, Facebook did something it had resisted for years: banned Trump’s account indefinitely for inciting violence...The Oversight Board is evaluating the determination — which Facebook says was made during extenuating circumstances — at the company’s request. Facebook says the rulings of the independent, 20-member body are binding. The company does have a hand in picking board members, which include a Nobel laureate and a former Danish prime minister, and paying them through a separate trust. “This is just the start of an experiment, but it can’t be where it ends.” said Evelyn Douek, a lecturer on free speech issues at Harvard Law School. “In some sense, we are all playing Facebook’s game by taking the Board seriously as a legitimate institution. On the other hand, no one has a better alternative right now.”

Former President Donald Trump will find out this week whether he gets to return to Facebook in a decision likely to stir up strong feelings no matter which way it goes. The social network’s quasi-independent Oversight Board says it will announce its ruling Wednesday on a case concerning the former president. Trump’s account was suspended for inciting violence that led to the deadly Jan. 6 Capitol riots... “If they reinstate him, Facebook will claim this proves the Board’s independence. If they don’t, Facebook will say its judgment to exclude Trump was vindicated. Heads they win, tails we lose. Journalists should know better than to take this window dressing seriously,” said Laurence Tribe, professor at Harvard Law School and member of the Real Facebook Oversight Board, a group critical of Facebook and its panel. Facebook created the oversight panel to rule on thorny content on its platforms in response to widespread criticism about its inability to respond swiftly and effectively to misinformation, hate speech and nefarious influence campaigns. Its decisions so far have weighed on the side of free expression vs. restricting content.

An op-ed by Jesse Fried: Nasdaq recently asked the Securities and Exchange Commission (SEC) to approve new diversity rules. To avoid forced delisting, a firm must “diversify or explain”: either have a certain number of “diverse” directors or say why it does not. In its proposal, Nasdaq tips its hat to the social justice movement. But investors should be nervous. Rigorous scholarship, much of it by leading female economists, suggests that increasing board diversity—which Nasdaq’s rules will likely pressure firms to do—can actually lead to lower share prices. The rules aim at ensuring Nasdaq-listed firms with six or more directors have at least one self-identifying as female and another self-identifying as an underrepresented minority or LGBTQ+. Nasdaq CEO Adena Friedman says “there are many studies that indicate that having a more diverse board… improves the financial performance of a company.” But while Nasdaq’s 271-page proposal cites studies finding a positive link between board diversity and good corporate governance, it fails to cite a single well-respected academic study showing that board diversity of any kind leads to higher stock prices, the outcome investors actually care about.

Facebook’s Oversight Board, otherwise known as Facebook’s supreme court, could soon come back with a decision on whether or not to reverse Trump’s ban from the platform. The Oversight Board was created in 2019 to review appeals around free speech. Plus, the Fortnite fight with Apple. And, the push to remember the Tulsa Race Massacre 100 years later. Guests: Harvard University constitutional law professor Noah Feldman and Axios' Ina Fried and Russell Contreras.

As income inequality steadily deteriorates, and President Biden explores one-time fixes like increasing corporate taxes, more durable solutions are needed to deal the root cause of growing inequality: the goal of big business. That, in turn, would require understanding how most business remains committed to extracting value from the economy, rather than the more profitable, more productive, more worthwhile path of value creation...Criticism of big business became so intense that in August 2019 major corporations issued a declaration through the Business Round Table that maximizing shareholder value was no longer the goal of business and vowed to help all stakeholders. However, in the period since the BRT declaration was issued, Harvard Law Professor Lucian Bebchuk and his colleagues have not detected significant change in corporate behavior. Few of the signatory CEOs obtained the approval of their boards to sign the announcement. Massive share buybacks that benefit shareholders, particularly executives, continue to flourish, even where there has been a collapse in profits. Bebchuk concludes that the BRT statement was “mostly for show.”

Amid growing national awareness of the problems of racially biased policing, the Supreme Judicial Court will have a chance to weigh in on a tactic that is increasingly drawing scrutiny: the designation of someone as a gang member. The police say they use their knowledge of gangs to crack down on gang-related crime. But critics of police practices say the methods law enforcement uses to designate someone as a gang member are racially biased, and the designation then leads to aggressive over-policing, often of young men of color. Katharine Naples-Mitchell, of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said gang membership “becomes a distorting lens through which all other facts are interpreted.” The SJC on Monday will hear arguments in a case stemming from a traffic stop in New Bedford, which has potentially broad implications for how police can use gang affiliation in making decisions about how to treat someone...The advocates say the criteria the police use to assign “gang membership” are unreliable and can include things like clothing color, social associations, and whether a family member has been murdered. Naples-Mitchell said the criteria also vary from city to city, illustrating how subjective they are.

What's up with Texas? Austin, the blue capital of the red state, is named for a Southern slaveholder, the acclaimed “Father of Texas,” who brought 300 families and their human chattel with him to extend the South’s peculiar institution into the area we now call the American Southwest. The banners honored in the Texas-based Six Flags Theme Parks’ name include two — the Republic of Texas and the Confederate States of America — from entities that sought not only to preserve slavery, but to enshrine it in perpetuity. And the “heroes” of the Alamo died not to free themselves from despotic Mexican rule, as is often portrayed in our mythology, but, as Mexico was moving toward abolition, to make their newly occupied land forever unfree for the enslaved workers who allowed them to prosper as the plantocracy of East Texas. In On Juneteenth, Harvard historian Annette Gordon-Reed grapples with the myths and contradictions of her beloved home state — a place that once subjugated, segregated, and lynched Black people (including in her home county) and remains ruled by politicians determined to suppress the hard-won votes of minorities and maintain their own power even as demographics inevitably shift.

Members of the World Trade Organization are scheduled to meet Friday to discuss a proposal by India and South Africa to temporarily suspend patents on COVID-19 vaccines. Backers of the plan say it would increase the supply of vaccines around the world by allowing more countries to produce them. There’s now enough supply in the U.S that any adult who wants a shot should be able to get one soon...I. Glenn Cohen at Harvard Law School said the U.S. government had some leverage when it was making deals with drug companies as part of Operation Warp Speed. “One could have imagined a version of this where, as part of a condition of receiving the funding, there was more done to ensure access for less developed countries and sharing of technology and sharing of intellectual property,” Cohen said. More than 100 countries have backed the proposal to temporarily waive COVID-19 vaccine patents. The U.S isn’t one of them, but the White House has said it’s considering the idea.

West Virginia and other states are taking a critical climate question to the U.S. Supreme Court, asking the justices to embrace a narrow interpretation of federal authority to regulate planet-warming emissions...The Supreme Court has previously expressed interest in the EPA’s regulatory authority over greenhouse gases, taking the unprecedented step of freezing the Obama-era Clean Power Plan before it was litigated in lower courts. But the states’ new petition faces a “vanishingly small chance” of being granted, Vermont Law School professor Patrick Parenteau said, as the Biden administration has already said it doesn’t plan to revive the Trump or Obama rules. “Better to wait to see what EPA comes up with,” he said. Harvard Law professor Richard Lazarus agreed, but noted that the case could present a test for the conservative Supreme Court. “The petition provides an opportunity to measure to what extent the new six-Justice conservative majority on the Supreme Court is aggressively looking for opportunities to cut back on EPA’s authority even in the absence of the normal indicia necessary for Supreme Court review,” he said in an email.

No vaccination, no class: That’s the message being sent to some Tampa Bay college students. A growing number of colleges and universities, more than 100 nationwide, say a COVID-19 vaccine will be mandatory this fall, according to a list maintained by The Chronicle for Higher Education...But is this legal? More than 115 years ago, the Supreme Court held that states can compel vaccinations. “The 1905 decision in Jacobson versus Massachusetts recognizes that states have significant powers under the Constitution,” said Professor I. Glenn Cohen, a Harvard Law professor and leading expert on medical ethics. “A state can definitely introduce a vaccination mandate should they so decide to do.” We know colleges require proof of vaccines for measles, mumps, and meningitis but the coronavirus is a bit different. The COVID-19 vaccines only have Emergency Use Authorization rather than the standard, full U.S. Food and Drug Administration approval. Some legal experts believe the shots, approved only for emergency use, can’t be mandated. Professor Cohen disagrees. “The statute is intended to tell people that they have a choice whether to get vaccinated or not but really has no meaning as to whether a private employer or a private university can require you to be vaccinated,” Cohen said. “It’s your choice, but if you choose not to be vaccinated, this is one of the consequences.”

An op-ed by Noah Feldman: Democrats in Congress are using the Congressional Review Act to reverse a Trump-era regulation on methane leaks at the Environmental Protection Agency. Republicans previously used the unusual law to revise an Obama-era EPA regulation on methane, as well as other federal agency rules — in fact, the GOP used the law 14 times at the beginning of Trump’s term in office. This marks the first time Democrats have followed suit. Tighter methane rules are sensible. But the CRA is a terrible law. Typically, legal requirements make it hard to reverse agency regulations without a clear analysis and explanation because it’s understood that the rules are based on expertise and detailed cost-benefit analyses. The CRA invites politicians to sideline agencies’ research and reasons and make snap political decisions by a bare majority in Congress. It encourages a seesawing of regulatory policy — which is not a helpful to anyone. The Republican use of the CRA in Trump’s presidency was an outrage. Democrats should not get into the same habit.

Nasdaq has, in its own words, embraced “the social justice movement.” The actual job of a stock exchange, however, is to ensure that trading is orderly and its listed companies follow standard governance rules. But doing that doesn’t earn the applause of the political left...Nasdaq claims board diversity protects investors because it might reduce the likelihood of “fraudulent and manipulative acts and practices” and increase shareholder value. But social scientists agree only that there is no agreement: Academic research hasn’t established a positive correlation between female board directors and firm performance. Even ambivalent studies that find a weak correlation aren’t evidence that having one or more women as directors improves shareholder value, which is what Nasdaq must prove. Nasdaq is also suspiciously silent about many other studies that undermine its argument. As Harvard professor Jesse Fried has pointed out, some of the best evidence suggests that pushing for increased diversity at the expense of other priorities hurts shareholder value.

Facebook temporarily hid posts calling for the resignation of Indian Prime Minister Narendra Modi, marking the platform's latest foray in a series of controversial decisions affecting free speech in a country experiencing a full-blown COVID-19 crisis. On Wednesday, the world’s largest social network said that posts with the hashtag or text #ResignModi “are temporarily hidden here” because “some content in those posts goes against our Community Standards.” Because the posts were hidden, it’s unclear what content violated the rules of a company whose executives have often expressed a commitment to open expression... “In the context of a highly politicized environment and an ongoing emergency, it’s very concerning that Facebook isn’t being more transparent about this and is not commenting,” said evelyn douek, a lecturer at Harvard Law School. “This appears to be core political speech at a very critical time.”