Media Mentions

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.”

Yahoo Finance’s Alexis Christoforous and Jesse Fried, Harvard Law School Professor, discuss lawmakers grilling Robinhood’s CEO amid Congress’ probe into the GameStop trading frenzy.

Former president Donald Trump made the rounds of conservative media on Wednesday, declining to say whether he plans to run for president again. But in his return to the spotlight, Trump lacked one of his largest megaphones: Facebook (FB), where a decision about whether to reactivate his account sits with the company's oversight board. In a new interview, Laurence Tribe — one of the nation's top constitutional law scholars, who briefly served at the Justice Department during the Obama administration — assailed the purportedly independent oversight board as "a dangerous idea" and warned that allowing Trump back on the platform "would be a terrible mistake." But Tribe said the board may very well rule in favor of reactivating Trump's account, since welcoming back someone of his cultural prominence would reaffirm the platform as a central institution, akin to a government entity. "I wouldn't be surprised if they held that it was wrong to kick Trump off of Facebook," says Tribe, a professor emeritus of constitutional law at Harvard University Law School who taught there for more than 50 years. "Because Facebook is sufficiently like the government as a public entity, that they really need to put Trump back."

An op-ed by Noah Feldman: Former president Donald Trump’s lawyers defended him during his second impeachment trial in part by arguing that his January 6 speech was protected by the First Amendment. That defense was legally irrelevant to the high crimes and misdemeanors charge, and wasn’t settled by his acquittal. But Trump’s free-speech defense may now get its day in court. Representative Bennie Thompson, a  Democrat from Mississippi, has filed a civil lawsuit against Trump, Rudy Giuliani, the Oath Keepers and the Proud Boys for unlawfully conspiring to interfere with Congress in the Capitol attack in violation of the Ku Klux Klan Act of 1871. And while the First Amendment doesn’t apply to impeachable offenses, it does apply in cases of civil liability. Trump’s best argument to get the case dismissed would be that he can’t held liable for conspiring with those who attacked the Capitol if all he did was express his First Amendment-protected political views. To decide that, a federal court would have to determine whether Trump’s speech was protected under the standard set by Brandenburg v. Ohio, the controlling precedent in incitement cases. The statute that forms the basis of Thompson’s lawsuit establishes liability when two or more persons conspire “by force, intimidation, or threat” to prevent any officer of the U.S. from the “lawful discharge of the duties of his office.” On its face, the law covers the January 6 attacks. There is no doubt that the rioters forcefully interfered with Congress’s discharge of its duties, and that Thompson was one of the people who was affected.

An article by Sean Quirk ‘21: The U.S. and Chinese militaries have continued to confront one another near Taiwan and in the South China Sea in the early weeks of the Biden administration. Chinese People’s Liberation Army (PLA) aircraft conducted a simulated strike against a U.S. aircraft carrier in January 2021, while Taiwan has experienced near-daily incursions into its airspace by Chinese aircraft. The U.S. Navy’s persistent operations in the South China Sea and diplomatic pronouncements from senior U.S. officials indicate that the Biden administration is largely staying the course in confronting Chinese intimidation in the region. Yet, unlike the Trump administration, Biden and his team appear keen to bring U.S. allies alongside to form a “united front” on military, economic and diplomatic dimensions of the U.S.-China relationship. On Jan. 23, Chinese military aircraft simulated an attack on the USS Theodore Roosevelt (CVN 71) Carrier Strike Group as it entered the South China Sea through the Bashi Channel, south of Taiwan. Thirteen Chinese People’s Liberation Army Air Force (PLAAF) and People’s Liberation Army Air Force Navy (PLAN) aircraft flew into Taiwan’s air defense identification zone (ADIZ) when the simulated attack occurred. Taiwan’s Ministry of National Defense reported the Chinese aircraft consisted of eight H-6K bombers, four J-16 fighter jets and one Y-8 anti-submarine aircraft. The PLA aircraft remained more than 250 nautical miles away from the Theodore Roosevelt but were heard confirming orders for the simulated release of anti-ship missiles against the carrier. The U.S. Indo-Pacific Command stated that the carrier strike group was conducting routine maritime security operations in the South China Sea and the Chinese aircraft “at no time” posed a threat.

While the coronavirus pandemic has infected millions and underscored the importance of quality health care, the Supreme Court has weighed a challenge to Obamacare that, if successful, would add 21 million to the ranks of the uninsured, according to a report released last October by the Urban Institute. The case drew renewed attention last week, when the Biden administration issued a letter in opposition to the Obamacare challenge, reversing the Trump administration's position on the case. In a new interview, Laurence Tribe — one of the nation's top constitutional law scholars, who briefly served at the Justice Department during the Obama administration — told Yahoo Finance that the case stands "no chance at all" of striking down the law, more formally known as the Affordable Care Act (ACA). He described the case against the law as "outlandish" and "extreme," assuring that even a conservative-majority court would keep Obamacare intact. "I don't think there is a chance at all that the law will be invalidated," says Tribe, a professor emeritus of constitutional law at Harvard University Law School who taught there for more than 50 years. The Supreme Court will "get rid of the case," he adds. "Now that the Justice Department under Biden has reversed the position that the Trump administration took against the law."

A Beautiful Resistance — a special project from the Globe's culture columnist Jeneé Osterheldt — is celebrating Black History Month by amplifying local stories of change-makers and the people inspired by them...“My name is Daniel Oyolu ‘21 and I want to celebrate New England Black History by honoring and acknowledging the fact that Martin Luther King met Coretta Scott while they were both studying in Boston: Martin at Boston University and Coretta at the New England Conservatory. The two were really different. Coretta came from rural Alabama and was reserved whereas Martin hailed from urban Atlanta and was quite gregarious (no surprise). At the end of the first date, Martin told Coretta she had all the qualities he wanted in a wife. Meanwhile, Coretta thought Martin was so short! But they did eventually grow close while in Boston. They were both serious individuals, politically active, and decided together to dedicate their lives and union to changing the world.” Celebrating Black love is essential. Oyolu is a Harvard Law student with a commitment to community and culture.

IBM said it was getting out of the facial recognition business last year. Then, Amazon and Microsoft announced prohibitions on law enforcement using their facial recognition tech. Nationwide protests last summer opened the door for a conversation around how these systems should be used by police, amid growing evidence of gender and racial bias baked into the algorithms. On today's encore episode, Short Wave host Maddie Sofia and reporter Emily Kwong speak with AI policy analyst Mutale Nkonde about algorithmic bias — how facial recognition software can discriminate and reflect the biases of society. Nkonde is the CEO of AI For the People, fellow at the Berkman Klein Center for Internet and Society at Harvard University and Fellow at the Digital Civil Society Lab at Stanford University.

President Joe Biden has a $1.9 trillion plan and a $1.7 trillion problem. He wants to go big on the former, but, unlike several prominent Democrats, more conservative on the latter. The $1.9 trillion, of course, is the stimulus plan that Biden was touting in last night's CNN town hall in Wisconsin. But when asked about proposals to cut into the $1.7 trillion in outstanding student-loan debt (as of the third quarter of 2020), the president expressed caution. Democratic lawmakers including Senate Majority Leader Chuck Schumer, Sen. Elizabeth Warren, and Rep. Alexandria Ocasio-Cortez have called on Biden to use his executive power to cancel up to $50,000 in student debt per person...In addition, a letter to Warren from from the legal director Eileen Connor of Harvard Law School's Legal Services Center, as well as attorney Deanne Loonin, and Toby Merrill, director of the Project on Predatory Student Lending, says the secretary of Education has full authority under the Higher Education Act to cancel student debt. In fact, Biden used the Act to extend the pause on student loan payments, and Democrats in the Senate and House, such as Ocasio-Cortez, are pushing for him to do the same with student debt cancelation.

On an all new episode of Influencers Andy sits down with Harvard Constitutional Law Professor Larry Tribe to discuss former President Trump's impeachment trial as well as the legal issues facing big tech companies in 2021.

Each country has its own car safety regulations and tax codes. But should every country also decide its own bounds for appropriate online expression? If you have a quick answer, let me ask you to think again. We probably don’t want internet companies deciding on the freedoms of billions of people, but we may not want governments to have unquestioned authority, either...Evelyn Douek, a lecturer at Harvard Law School, told me that even when countries like Germany pass laws about online speech, it’s still the responsibility of internet companies to interpret whether millions of posts are on the right side of the law. That goes for the United States, too, where companies are largely left to decide their own bounds of acceptable online expression. Countries and international bodies should “do more to establish more clear guard rails and processes for internet platforms,” Douek said, but “they’re never going to take decision making out of these platforms.”

A podcast by Noah Feldman: Why are presidential impeachments happening more often? Are impeachments futile if they don't end in a conviction? What did Hamilton and Madison overlook about the impeachment and the transition of power? To discuss these questions, political journalist and CEO of Pushkin Industries Jacob Weisberg joins the conversation. Jacob and Noah were two of the early voices on impeachment, starting in 2017 when they co-authored an article laying out Trump’s early possible impeachable offenses for The New York Review of Books. Noah would later testify at President Trump’s first impeachment trial. Today, Jacob and Noah bookend the conversation on impeachment.

An op-ed by Noah Feldman: Not content with a gerrymandered state legislatures and gerrymandered congressional districts, Pennsylvania Republicans are now moving to gerrymander judicial elections in the state — not only for local trial judges, but up to and including the state supreme court. It’s a terrible prospect, especially in the light of the state’s legal fight over the 2020 presidential election. And it points to a deeper problem, one that plagues many state judiciaries: Electing judges is a terrible idea. Born in the nineteenth century as a reform mechanism, the practice of electing judges has outlived its usefulness. In our current era of dangerous Trumpian populism, it is clearer than ever that we want judges to be sober, reasonable, and immune from the political pressures of the moment. Judicial elections come in three flavors: partisan elections, which 18 states use; non-partisan elections, found in 21 states; and retention elections after appointment, used in 21 states, several overlapping with the other two models. Only seven states have no judicial elections of any kind. At the most basic level, the idea of electing judges — which almost no other country on earth does — is based on the goal of making judges responsible to the public. The leading history of judicial elections, by Professor Jed Shugerman, tells the complicated story of how we got here. Some reformers worried that judges would be chosen as patronage appointments and therefore beholden to the governors who appointed them. Others feared judges unaccountable to the public would do the bidding of wealthy elites, a phenomenon known as judicial capture.

House Rep. Bennie Thompson (D-MS) — the chair of the Committee on Homeland Security — filed a lawsuit on Tuesday accusing former President Donald Trump of conspiring to incite the deadly attack on Jan. 6 at the U.S. Capitol. The filing marks the latest in a slew of lawsuits and probes that center on a range of allegations, including efforts to influence election officials in Georgia, defame women who accused him of sexual assault, and manipulate the value of his assets for tax and loan purposes. In a new interview, Laurence Tribe — one of the nation's top constitutional law scholars, who briefly served at the Justice Department during the Obama administration — told Yahoo Finance that Trump faces a "a huge number of lawsuits" that will occupy his attention for the remainder of his life. It remains unclear whether Trump will end up serving time in prison, Tribe says, predicting that no matter the outcome of litigation Trump will "gradually fade away," in part due to the grueling demands of his legal defense. "He is fully subject to civil and criminal lawsuits both state and federal across the land," says Tribe, a professor emeritus of constitutional law at Harvard University Law School who taught there for more than 50 years. "It's a panoply of charges," he adds. "So [Trump] is going to be busy defending himself from now until the end of his life."

An op-ed by Todd Carney ‘21: Though the whole world felt the weight of the Holocaust, some would argue that the Holocaust impacted Poland more than any other country. Though the world largely recognizes the atrocities that occurred in Poland during the Holocaust, Poland has engaged in “historical revisionism.” This revisionism has not centered on the actual impact of the Holocaust on Poland, but rather what contributed to the Holocaust. Poland currently has a law, the “Amendments to the Act on the Institute of National Remembrance,” that makes accusing any Pole of performing an action that assisted with the Holocaust, a libelous action. Many international leaders have expressed concern over the law, but no country has taken concrete actions to penalize Poland. In 2019, Filomena Leszczyńska, the niece of Edward Malinowski, a Mayor of the Polish town, Malinowo, during World War II, used the Amendments to the Act on the Institute of National Remembrance to launch a lawsuit against two historians, Barbara Engelking and Jan Grabowski. Leszczyńska alleged that Engelking and Grabowski committed a libelous act when they wrote in their book, “Night Without an End,” that Malinowski had complicity in the Holocaust by letting German occupants murder Jews. Leszczyńska sought several remedies, including a ban on the book. Recently, a Polish court found Engelking and Grabowski liable, but only ordered Engelking and Grabowski to apologize to Leszczyńska. Still, many fear that the verdict could suppress free speech in Poland. This piece looks at what free speech advocates can do outside of Poland to oppose this law.