Media Mentions

Marcia Sells — a former dancer who became an assistant district attorney in Brooklyn and the dean of students at Harvard Law School — has been hired as the first chief diversity officer of the Metropolitan Opera, the largest performing arts institution in the United States. Her appointment, which the Met announced on Monday, is something of a corrective to the company’s nearly 140-year history and a response to the Black Lives Matter demonstrations that followed the killing of George Floyd in 2020. It’s also a conscious step toward inclusivity by a major player in an industry in which some Black singers, including Leontyne Price and Jessye Norman, have found stardom, but diversity has lagged in orchestras, staff and leadership... Diversity has been at the fore of her work as an administrator — at places including Columbia, the N.B.A. and eventually Harvard Law, where she has been the dean of students since 2015. Her mandate at the Met won’t be too far from that of Harvard, another institute often perceived as elite to the point of exclusivity. “It’s not just that you want to get it right,” Ms. Sells said. “There are a lot of eyes on you, but it’s a huge opportunity to show the way, as well as learn from other organizations that don’t have as big a name, are not as well known, and help shine a light on that work and on them.”

President Joe Biden has framed his pandemic “rescue plan” as critical to addressing the enormous public health and economic damage caused by the coronavirus pandemic, but disability advocates hope that one provision in the legislation will finally solve a problem they have fought since far before the crisis. Buried within the mammoth plan, set to be introduced in Congress this week, is the elimination of a little-known provision in labor law that allows some employers to pay employees with disabilities less than the minimum wage—sometimes pennies on the dollar... “The minimum wage should apply to all of us,” said Ari Ne’eman, a senior research associate with the Harvard Law School Project on Disability, “including people with disabilities.” The elimination of the subminimum wage, coupled with raising the federal minimum wage to $15 and ending the tipped minimum wage, is pitched in the rescue plan as key to allowing Americans to “put food on the table and keep a roof over their heads” amidst a once-in-a-century calamity.

A well-known management maxim warns, if you can’t measure it, you can’t improve it. By that reckoning, those trying to better the state’s criminal justice system are often flying blind. How long, for example, does the average probationer in Massachusetts stay on probation? Or how many people last year had their probation revoked? ... While each probationer has their own physical case file, the Massachusetts Probation Department has no computer-based case management system that would let state officials or researchers track information on an aggregate basis...A major study on racial disparities in the Massachusetts criminal justice system, conducted by the Criminal Justice Policy Program at Harvard Law School on behalf of the Supreme Judicial Court and released in September 2020, similarly identified major data limitations. It found that police departments provided printed arrest reports, which could not easily be aggregated. Every district attorney had a different system for tracking cases. Cases that moved from District Court to Superior Court were not linked. Race and ethnicity was recorded differently at different agencies, and the information was often missing. Pretrial events and non-jail sentencing data were not consistently recorded electronically.

In the months leading up to the November election, the social media platform Parler attracted millions of new users by promising something competitors, increasingly, did not: unfettered free speech...The giants of social media — Facebook, Twitter, YouTube, Instagram — had more stringent rules. And while they still amplified huge amounts of far-right content, they had started using warning labels and deletions to clamp down on misinformation about Covid-19 and false claims of electoral fraud, including in posts by President Trump...Why, for example, hasn’t Facebook suspended the accounts of other leaders who have used the platform to spread lies and bolster their power, like the president of the Philippines, Rodrigo Duterte? A spokesman said suspending Trump was “a response to a specific situation based on risk” — but so is every decision, and the risks can be just as high overseas. “It’s really media and public pressure that is the difference between Trump coming down and Duterte staying up,” says Evelyn Douek, a lecturer at Harvard Law School. “But the winds of public opinion are a terrible basis for free-speech decisions! Maybe it seems like it’s working right now. But in the longer run, how do you think unpopular dissidents and minorities will fare?” ... “I’m afraid that the technology has upended the possibility of a well-functioning, responsible speech environment,” the Harvard law professor Jack Goldsmith says. “It used to be we had masses of speech in a reasonable range, and some extreme speech we could tolerate. Now we have a lot more extreme speech coming from lots of outlets and mouthpieces, and it’s more injurious and harder to regulate.”

Some defendants appearing in court in Dane County, Wisconsin, are given a risk-assessment score to reduce bias in decisions about bail and pretrial release. Other defendants in the same court — and even before the same judge — are not. The disparate treatment isn't because of discrimination or a lack of resources. It's because the defendants are members of two different groups in a scientific study. Randomized controlled trials like this one designed to evaluate the risk-assessment tool are the "gold standard" for research in most social sciences and in medicine, where they are currently being used to test COVID-19 vaccines, according to researchers. But similar studies in the field of access to justice have been few and far between, they say...In the Dane County study, Harvard Law School's Access to Justice Lab is evaluating the efficacy of a public safety assessment tool, which gives defendants a score to inform judges' pretrial bail decisions. Defendants are randomly selected to either be given the score before their initial court appearance or not, according to Jim Greiner, the lab's faculty director. Researchers then track defendants for two years to measure days spent incarcerated, failures to appear and new criminal activity, among other outcomes, to measure the impact those scores have on defendants, Greiner says...Activists, however, argue that we don't need to study reforms like doing away with pretrial detention or better funding public defenders to know that the absence of those interventions is harmful. "Abundant research already exists showing that pretrial incarceration causes harm to detained people and their loved ones," says Katy Naples-Mitchell, a staff attorney at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. "Denying a control group of people pretrial release, something we know will help them, and subjecting them to something we know hurts them in the interests of research is ethically insupportable."

An op-ed by Noah Feldman: Dominion Voting Systems is suing Rudy Giuliani, President Donald Trump’s former lawyer, for libel, citing Giuliani’s false claims that the company was part of a conspiracy to steal the presidential election. The case isn’t a slam dunk, mostly because of First Amendment protections that make it hard to prove libel where public figures are concerned. But the suit is strong enough that Giuliani should hire a good lawyer — which is to say, a better one than Rudy Giuliani. The strongest claims in Dominion’s 107-page libel complaint arise from comments Giuliani repeated on Twitter, on Lou Dobbs Tonight, and on his own radio show and podcast. In those comments, Giuliani said that Dominion was owned by another company called Smartmatic (in fact, they are unrelated competitors) and that Smartmatic was founded by Venezuelans close to former dictator Hugo Chavez in order to steal elections. On the podcast, Giuliani went a bit further, saying that Dominion had stolen the election “technologically.” There’s no question that the statements were false and that they were defamatory to Dominion. When the person being libeled is a private citizen, that’s enough to prove libel. And if Dominion were a private citizen, it would almost certainly win its suit.

Senate Majority Leader Chuck Schumer has agreed to delay former President Trump's impeachment trial by two weeks. The House still plans to submit the article of impeachment on Monday, prompting the proceedings to begin. Harvard Law professor Lawrence Lessig joined CBSN to explain what the former president's legal team may be doing to prepare for the trial and what Democrats need to do to prove the president intended to start an insurrection.

As part of the response to the Jan. 6 attack on the U.S. Capitol, the Biden administration will treat white supremacist violence as a national security threat. White House press secretary Jen Psaki made this clear in a news briefing on Friday: “The Biden administration will confront this threat with the necessary resources and resolve,” she said...Despite analysis showing the rising threat of domestic terrorism, the previous administration declined to undertake a major initiative to study or address it...Conservative resistance to cracking down on such groups — ostensibly based on the fear that they would become targets (a telling indictment of the degree to which white supremacy has become part of right-wing rhetoric) — may subside given the attack on Congress and threats against former vice president Mike Pence. Constitutional scholar Laurence H. Tribe tells me, “This seems a sensible and urgently needed step to evaluate and address what we know has been a rising problem, one considerably more urgent than even international terrorism.” He adds, “To approach it systematically and on the basis of data rather than mere hunch and instinct looks like a refreshing signal of what the new administration portends.”

Thousands of people work in the White House under each administration, and with President Biden and Vice President Harris at the helm, many will hail from Massachusetts. It seems every day comes with news of another figure with ties to Massachusetts being tapped by the nation’s highest offices. In what can only be described as a Mass. exodus, here’s a look at some of the Bay Staters who are heading to Washington to work under the Biden-Harris administration...Former ambassador to the United Nations Samantha Power has been tapped to serve as head of the US Agency for International Development, more commonly known as USAID. In announcing Power for the role, Biden also elevated the position to be part of the National Security Council. Prior to serving as UN ambassador under former president Obama, Power served on the National Security Council as Special Assistant to the President and Senior Director for Multilateral Affairs and Human Rights. Power, who lives in Concord, is a professor at the Harvard Kennedy School and Harvard Law School.

When Randall Stephenson joined 180 of his peers leading many of the richest U.S. companies in signing the Business Roundtable pledge on the “purpose of a corporation” in August 2019, the then-chief of AT&T Inc promised to look out for the interests of all the wireless carrier’s stakeholders, not just shareholders. Two months later, the Dallas-based company outlined a plan for cost reductions that also prioritized dividends and stock buybacks for shareholders, succumbing to pressure from $41 billion hedge fund Elliott Investment Management LP...The CEOs signed the pledge without legally binding their companies and largely without approval from their boards. COVID-19 stress-tested their commitments, as large swathes of the economy were forced to shut down. The pledge’s lack of detail gave signatories wide discretion in deciding how the pandemic pain would be spread among shareholders, employees and other stakeholders. “It’s a political signaling exercise that doesn’t mean very much,” said Harvard Law School professor Jesse Fried, who is on the research advisory council of Glass, Lewis + Co which advises investors over how to vote on corporate governance.

President Joe Biden teed up a slew of clean air and carbon issues as top environmental priorities for his administration in a new executive order signed this week. Biden on Jan. 21 directed agencies to examine dozens of Trump-era rules, including carbon emissions, clean air rollbacks, and Clean Air Act rules on science and costs. Any bold standards Biden has in mind to stem emissions from industry through the Clean Air Act will almost certainly get challenged in court...The U.S Court of Appeals for the District of Columbia Circuit handed Biden a huge win Jan. 19 when it struck down President Donald Trump’s carbon rule for coal-fired power plants. The new White House now has a fresh start to craft greenhouse gas standards for existing sources. The D.C. Circuit opinion affirmed Obama-era justifications for regulating power plant carbon under the Clean Air Act, but Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Program, isn’t expecting a Clean Power Plan 2.0. “Even the ambitions of the Clean Power Plan were limited compared to what the ambitions of this administration are,” she said.

They meet mostly on Zoom, but I prefer to picture the members of this court, or council, or whatever it is, wearing reflective suits and hovering via hologram around a glowing table. The members include two people who were reportedly on presidential shortlists for the U.S. Supreme Court, along with a Yemeni Nobel Peace Prize laureate, a British Pulitzer winner, Colombia’s leading human rights lawyer and a former prime minister of Denmark. The 20 of them come, in all, from 18 countries on six continents, and speak 27 languages among them. This is the Oversight Board, a hitherto obscure body that will, over the next 87 days, rule on one of the most important questions in the world: Should Donald J. Trump be permitted to return to Facebook and reconnect with his millions of followers? ... The board will seriously examine the Trump question, guided by Facebook’s own rules as well as international human rights law. If Facebook accepts its rulings, as it has pledged to do, as well as the board’s broader guidance, the company will endow this obscure panel with a new kind of legitimacy. “Either it’s nothing, or it’s the New World Order,” said a lecturer at Harvard Law School who studies content moderation, Evelyn Douek, who pushed Facebook to send the Trump case to the Oversight Board...Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, who first brought the notion of a Facebook Supreme Court to the company, said he thought conservatives dismayed by the recent crackdown might be surprised to find an ally in this new international institution. “They may come to realize that the Oversight Board is more responsive to freedom of expression concerns than any platform can be, given real world politics,” he said.

An op-ed by Noah Feldman: The storming of the U.S. Capitol on January 6 was a real lowlight for Congress. At least during the sacking of Washington in the war of 1812, the White House burned alongside the Capitol. But on January 6, 2021 the head of the executive branch urged his followers to interfere with the operation of the legislative branch. The entire sequence of events is a reminder that congressional power has been receding relative to the executive branch for almost a century. Now is the time for Congress to stand up for its rights as a coequal branch of government. It’s not only that the January 6 attack has drawn public attention to the importance of the legislature. It’s that President Joe Biden is the first career legislator to occupy the White House in nearly 50 years. Biden’s experience and instincts will guide him into pursuing major legislation, not just governing by executive order. If Congress can find bipartisan issues on which to pass laws, and if a significant bloc of congressional Republicans chooses not to be absolutely obstructionist, we might begin the process of restoring some of the governmental balance envisioned by the Constitution. Congress’s downward slide should matter to Democrats and Republicans alike.

An op-ed by Cass Sunstein: Amid the flurry of new executive orders and memoranda signed by President Joe Biden on his first day in office, there’s a sleeper. It’s called Modernizing Regulatory Review, and it’s exceedingly important. Crucially, the memorandum affirms the long-standing process managed by the Office of Information and Regulatory Affairs, which includes a significant role for cost-benefit analysis. At the same time, it marks a dramatic departure from the approach favored by the administration of former President Donald Trump and identifies excellent directions for fresh reforms. Since 1981, both Republican and Democratic presidents have directed agencies to submit drafts of their major regulations to OIRA — part of the Office of Management and Budget — for review and scrutiny. Whether the issue involves environmental protection, food safety, homeland security, health care or transportation, agencies must allow OIRA to coordinate a process called interagency review, by which various parts of the federal government are permitted to comment on draft regulations. For regulations with an economic impact of $100 million or more, agencies must also produce a regulatory impact analysis, cataloguing the benefits and costs of regulations, and showing that the benefits justify the costs.

President Biden, vowing to restore environmental protections frayed over the past four years, has ordered the review of more than 100 rules and regulations on air, water, public lands, endangered species and climate change that were weakened or rolled back by his predecessor. But legal experts warn that it could take two to three years — and in some cases, most of Mr. Biden’s term — to put many of the old rules back in place...In the early days of the Trump administration, Republicans used that law to quickly wipe out 16 Obama-era rules. But legal experts have warned Democrats that using that law to undo environmental policies could backfire: once Congress has used it to wipe out a regulation, the administration is legally barred from enacting a substantially similar rule. That twist would bar the Biden administration from replacing a weak Trump-era rule with a similar but more stringent one. “They don’t want to create roadblocks to creating future regulations,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, who has closely studied the Trump administration’s rollbacks. Ms. Vizcarra cited just one such rollback as a good candidate for rapid reversal under the Congressional Review Act: a January rule that reduced protections for migratory birds by ending penalties for energy and construction companies that harm the birds and their habitats in construction projects and oil spills.

An op-ed by Laurie Beyranevand and Emily Broad Leib: In the early months of the coronavirus pandemic, shocking images emerged from both ends of an American food system seemingly on the brink of collapse. Photos and videos of farmers dumping crops — perfectly good potatoes, squash and milk — appeared above articles about the rising “tsunamis” of food waste as food service buyers disappeared. Meanwhile, lines for food banks filled parking lots, circled around neighborhoods and shut down highways. How is this possible? America’s food system has long been plagued by massive inefficiencies and injustices. They just weren’t quite so visible to all before now. Soaring rates of food insecurity, the exploitation of food workers, massive volumes of food waste, widespread nutritional deficiencies leading to alarming rates of diet related disease, the challenging economics of farming and disproportionate harm to underserved and Black, Indigenous and people of color (BIPOC) communities — all of these existed at near-crisis levels before the coronavirus first infected a single human. The virus and resulting public health measures simply brought these issues to the front burner and turned them up to a rolling boil. The reasons that COVID-19 had our food system on the brink of collapse are the same ones that have allowed these inequalities and failures to persist for decades.

We talk occasionally about the theory that BlackRock Inc. rules the world. Not BlackRock per se, exactly, but there is a small group of gigantic investment managers who are the biggest shareholders in most public companies, and who, at some level, get to tell those companies what to do. The people who run those investment managers—people like Larry Fink of BlackRock—have disproportionate power over the world. If they decide that corporations should not have staggered boards, corporations will not have staggered boards. If they decided that climate change is a pressing problem and companies need to address it, companies have to at least consider addressing it...Back in 2018, John Coates of Harvard Law School wrote a paper about this stuff called “The Future of Corporate Governance Part I: The Problem of Twelve.” One thing I like about this paper is the name: The issue, to Coates, is not something narrow like “do industries with more common ownership raise prices,” but the much broader “what should we think about the fact that a dozen people will soon control all the companies?” Another thing I like is Coates’s brief suggestion that these big funds could look to administrative law as a way to legitimate and regulate their power. (“One inspiration may be administrative law, which has to grapple with similar problems of legitimacy and accountability for agents of the state,” he writes.)

An article by Emma Svoboda ‘23: As the U.S. reeled from violence at the Capitol, two Central Asian countries held elections that were both uncompetitive and unsurprising. On Jan. 10, voters in Kyrgyzstan and Kazakhstan took to the polls in elections that did not portend a change from the status quo. Following an October 2020 revolution in Kyrgyzstan that led to the resignation of the country’s former leader, voters elected Sadyr Japarov, a populist and a convicted kidnapper, as the new president. Kyrgyzstan’s voters also passed a constitutional referendum that promised Japarov sweeping new powers in his first term. In Kazakhstan, voters chose a new parliament for the first time since Nursultan Nazarbayev, the longtime ruler, stepped down from the presidency in 2019. The elections, which were boycotted by any meaningful opposition, gave the ruling Nur-Otan party a commanding majority in the country’s parliament. The Organization for Security and Cooperation in Europe called Kazakhstan’s electoral process “not competitive,” noting that it left voters with “no genuine political alternative.”

A federal judge has refused to restore the social media site Parler after Amazon kicked the company off of its Web-hosting services over content seen as inciting violence. The decision is a blow to Parler, an upstart that has won over Trump loyalists for its relatively hands-off approach to moderating content. The company sued Amazon over its ban, demanding reinstatement. U.S. District Judge Barbara Rothstein sided with Amazon, which argued that Parler would not take down posts threatening public safety even in the wake of the attack on the U.S. Capitol and that it is within Amazon's rights to punish the company over its refusal...Evelyn Douek, a lecturer at Harvard Law School, predicts more battles over online speech will erupt between sites that choose a hands-off approach and Web hosts that demand a more aggressive stance. And that troubles her. "Is that the right place for content moderation to be occurring?" Douek asked. "It's harder to bring accountability to those choices when we don't even know who's making them or why they're being made." In other words, when a Web host has a problem with content on a client's site, usually these discussions are hashed out between the two parties, far from the public light. And Web hosts, unlike social media platforms, are not used to explaining these decisions publicly.

Facebook said it would refer its decision to indefinitely suspend former president Donald Trump’s Facebook and Instagram accounts to the oversight board, an independent Facebook-funded body composed of international experts that has the power to review — and potentially overturn — the company’s content decisions. The referral would amount to the first major case for the board, which took the first spate of cases it would consider in December. It will also be a key test for a model of external governance for Silicon Valley’s decision-making, one that is being closely watched by experts and policymakers around the world...Facebook said it would continue to suspend Trump’s accounts pending the board’s decision. The social network also asked the board to review its policies on world leaders, whose speech Facebook and other social media companies consider to be newsworthy or in the public interest, and therefore they are given more latitude to make inflammatory comments than everyday users. “This is clearly the right decision,” said Evelyn Douek, a lecturer at Harvard Law School who had argued, along with other academics, that the oversight board should take up the case. “Had Facebook failed to send the case to the board, it would have suggested that even it wasn’t taking its oversight board seriously. Just waiting to see how [Zuckerberg] happened to feel about whether the Trump suspension should be made permanent is not a good model for how these kinds of important decisions should get made.”

President Biden, vowing to restore environmental protections frayed over the past four years, has ordered the review of more than 100 rules and regulations on air, water, public lands, endangered species and climate change that were weakened or rolled back by his predecessor...Mr. Biden’s team has also looked to Congress, where Democrats could potentially use their razor-thin House and Senate majorities to revoke some of the Trump administration’s last-minute regulatory rollbacks. Under the Congressional Review Act, any regulation finalized within 60 legislative days of the end of a presidential term can be overturned with a simple congressional vote. In the early days of the Trump administration, Republicans used that law to quickly wipe out 16 Obama-era rules. But legal experts have warned Democrats that using that law to undo environmental policies could backfire: once Congress has used it to wipe out a regulation, the administration is legally barred from enacting a substantially similar rule. That twist would bar the Biden administration from replacing a weak Trump-era rule with a similar but more stringent one. “They don’t want to create roadblocks to creating future regulations,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, who has closely studied the Trump administration’s rollbacks. Ms. Vizcarra cited just one such rollback as a good candidate for rapid reversal under the Congressional Review Act: a January rule that reduced protections for migratory birds by ending penalties for energy and construction companies that harm the birds and their habitats in construction projects and oil spills.