Media Mentions

As we grapple with disinformation driving the recent attack on the U.S. Capitol and hundreds of thousands of deaths from a pandemic whose nature and mitigation is subject to heated dispute, social media companies are weighing how to respond to both the political and public health disinformation, or intentionally false information, that they can spread. These decisions haven’t taken place in a vacuum, says Jonathan Zittrain ’95, Harvard’s George Bemis Professor of International Law and Professor of Computer Science. Rather, he says, they’re part of a years-long trend from viewing digital governance first through a “Rights” framework, then through a “Public Health” framework, and, with them irreconcilable, most immediately through a “Legitimacy” framework. Zittrain, co-founder of the Berkman Klein Center for Internet & Society, delivered his remarks as part of the first of two editions of the 2020 Tanner Lecture on Human Values at Clare Hall, Cambridge, a prestigious lecture series that advances and reflects upon how scholarly and scientific learning relates to human values. According to Zittrain, former President Donald Trump’s deplatforming from Twitter, Facebook, and YouTube, among others, is one of the most notable recent content moderation policy decisions — one which Facebook just referred for binding assessment by its new external content Oversight Board.

President Joe Biden outlined ambitious new plansfor taking on climate change on Wednesday, but the most potent weapon may already be in his arsenal. The five-member Federal Energy Regulatory Commission is poised to play a pivotal role fulfilling Biden’s clean-energy ambitions, including his vow to strip greenhouse gas emissions from the power sector over the next 14 years. FERC could help Biden deliver on those promises by fostering carbon prices on electricity, propelling a massive build-out of high-voltage power lines and making it harder to build natural gas pipelines...Biden can’t count on help from Congress. With Democrats having only a narrow hold on the House and Senate, it’s unlikely both chambers will pass broad clean energy legislation, including a nationwide renewable power mandate. Enter FERC, which can accomplish many of the same goals, said Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. “FERC will be an indispensable player in the Biden administration’s clean energy agenda,” Peskoe said. “It’s the federal regulator of two major energy industries -- the power sector and the natural gas industry -- so it matters a lot in how this energy transition plays out.”

An essay by Jeannie Suk Gersen: For years, Carlton F. W. Larson, a treason scholar and law professor at the University of California, Davis, has swatted away loose treason accusations by both Donald Trumpand his critics. Though the term is popularly used to describe all kinds of political betrayals, the Constitution defines treason as one of two distinct, specific acts: “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort.” Colluding with Russia, a foreign adversary but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival. Ordering the military to abandon Kurdish allies in Syria, effectively strengthening isis, is not treason, either—though that is getting warmer. During Trump’s Presidency, Larson told me, his colleagues teased him by asking, “Is it treason yet?” He always said no. But the insurrection of January 6th changed his answer, at least with regard to Trump’s followers who attacked the Capitol in an attempt to stop Congress’s certification of the election. “It’s very clear that would have been seen as ‘levying war,’ ” he said. Both of Trump’s impeachments, in 2019 and 2021, were for “high crimes and misdemeanors,” but the Constitution also names treason as an offense for which a President can be impeached. Individuals, including a former President, may also be criminally punished for treason, perhaps the highest offense in our legal system, carrying the possibility of the death penalty. Fearing abuse of treason charges, the Framers gave treason a narrow definition and made it extremely difficult to prove.

Welcome back to Transmission Week here at Volts! In my previous post, I explained why the US needs lots of new high-voltage power lines. They will help stitch together America’s balkanized grids, connect remote renewable energy to urban load centers, prepare the country for the coming wave of electrification, and relieve grid congestion. And oh yeah — we won’t be able to decarbonize the country without them... Today, we’re going to walk step by step through the process and show why they’re not getting built. At each stage, we’ll look at what Congress can do — and what Biden can do without Congress’ help — to get the process moving...As Ari Peskoe of the Harvard Electricity Law Initiative writes in a recent paper, “FERC was optimistic that [the IOUs’] central-planning development model would be replaced by ‘well-defined transmission rights and efficient price signals’ that would facilitate market-driven expansion.” When it didn’t quite work out that way, once again, in order 1000, “FERC employed several mechanisms to pry control over regional transmission development from IOUs and break the IOU-by-IOU planning model,” Peskoe writes...IOUs have engaged in a “shift away from regional projects, which must be developed competitively, to smaller or supposedly time-sensitive projects that IOUs build with little oversight and without competitive pressures,” Peskoe writes, and RTOs have implicitly or explicitly supported them in this shift.

In the weeks following the Capitol attack, lawmakers, technology companies, and journalists have all grappled with the same question: What do we do about this? Congress—at least its Democratic majority—is pushing forward with Impeachment 2.0, as conviction in the Senate would bar the Inciter-in-Chief from ever holding public office. Congressional Democrats are also pushing to censure the “Sedition Caucus,” the Republican lawmakers who continued fanning the flames of insurrection even after the Capitol had been secured. Technology companies, meanwhile, opted for the Great Deplatforming. And newspaper editorial boards in the Sedition Caucus members’ districts have called for resignations. These reactions are appropriate; all responsible parties should be held to account for what happened on January 6. But we miss something critical when we narrow our attention to the worst offenders—the loudest instigators, the cruelest participants, the boldest enablers. Even if every last rioter and politician were brought to justice, the danger would remain. To prevent the next attack, and more broadly to have any chance of achieving even a semblance of unity, we must contend with the underlying conditions that allowed this one to occur...The first and most critical step is to double down on media literacy, and not merely as a toolkit for navigating falsehood...Educators must help students understand why lower strata of the biomass pyramid are so amenable to falsehood. That means interrogating the outsized, decades-long role far-right media have played in shaping the environment, which as a recent Berkman Klein Center report shows, reached a zenith during the 2020 election.

The question of whether former president Donald Trump can be convicted at an impeachment trial now that he has left office is likely to be settled by political muscle rather than the Constitution, which is murky on the matter and provides support for those on both sides of the issue, experts said Wednesday. Although many legal scholars take the view that a president can be tried by the Senate even when he is no longer president, they acknowledge there is enough ambiguity in the Constitution for Republicans to embrace as reason not to convict Trump at his trial set to begin Feb. 9...Among those leading the arguments on both sides are legal heavyweights Laurence Tribe, a Harvard Law School scholar, and Luttig, the former judge. The two frequently exchange emails on constitutional issues, most recently about this subject, and express great admiration for each other even when they vigorously disagree. The Senate does not lose its power to hold an impeachment trial just because the official is no longer in office, Tribe said, in part because it has the authority to disqualify the person from holding future office. Although a powerful argument could be made that Congress cannot impeach a private citizen, he said, Trump was impeached by the House while still in office. If an official could only be disqualified while still in office, that person could avoid accountability by resigning just before a final conviction vote in the Senate, he said.

The next global pandemic could be the result of a bioterrorist attack, a tech expert has warned. Vivek Wadhwa, a distinguished fellow and adjunct professor at Carnegie Mellon's School of Engineering, said in an essay for Foreign Policy that this was largely due to advances in cheap and easily accessible methods of genetic engineering. Conspiracy theories have often suggested that the COVID-19 pandemic is a "bioweapon" manufactured in a Chinese lab. However, Wadhwa, who is also a distinguished fellow of Harvard Law School's Labor and Worklife Program, insisted that the pandemic was not created in a lab, citing a report by Nature Medicine. "But if genetic engineering wasn't behind this pandemic, it could very well unleash the next one," Wadhwa said. He believes the current pandemic should be treated as a "dress rehearsal of what is to come, including viruses deliberately engineered by humans." The concerns of those in science and tech have slowly been becoming a reality, with Wadhwa pointing to the ease of access to gene editing kits in the US...This ease of accessibility is largely due to the advances of CRISPR gene editing, which enables scientists to cut and paste genes, with the possibility of curing or eradicating malaria or Huntingdon's disease, but also of damaging species and ecosystems. Wadhwa said CRISPR makes it "almost as easy to engineer life forms as it is to edit Microsoft Word documents." "There should have been international treaties to prevent the use of CRISPR for gene editing on humans or animals. The U.S. Food and Drug Administration should have kept companies from selling DIY gene-editing kits," Wadhwa added.

An op-ed by Noah Feldman: It didn’t take long for the Texas attorney general to sue President Joe Biden’s administration over its immigration policy – nor for a federal judge to issue a nationwide injunction freezing Biden’s 100-day pause on certain deportations. If this movie sounds familiar, it should. Starting at the beginning of President Donald Trump’s administration, federal courts repeatedly struck down Trump’s executive orders, including a large number related to immigration, often using the tool of nationwide injunctions. The big question that emerges from the Texas ruling is this: Will the new, more skeptical legal standards that courts developed over the last four years to combat Trump’s lawlessness now be used by the courts to constrain Biden? Liberals (including me) spent a good part of the Trump era celebrating the judicial system as a bulwark against executive action that was expansive, aggressive — and lawless. Now we may have to confront the shadow side of judicial review of executive action: judicial overreach by conservative judges, many put in place by Trump, who have the ability to block progressive policies using some of the same tools. The order in question was issued by the Biden administration on its first day in office from the desk of the acting secretary of the Department of Homeland Security. The order specified a 100-day moratorium on most removals of non-citizens who were in the U.S. as of Nov. 1, 2020. It contained exceptions for noncitizens suspected of terrorism or espionage. And it also allowed for the removal of anyone whom the director of ICE, in consultation with the agency’s chief lawyer, individually determined to be required by law to be removed.

Bracing for the prospect of a likely acquittal, Senate Democrats are eyeing a rapid-fire impeachment trial for former president Donald Trump — as short as one week — while also contemplating alternatives such as censure that could attract more support from Republicans...Sen. Tim Kaine of Virginia said he was likely to file a censure resolution that would serve as an alternative to convicting Trump on the impeachment charge...Kaine is pitching his censure resolution to Republicans as a potentially more politically palatable alternative to convicting Trump and barring him from future office. But he is also making the case to Democrats that his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment...Laurence Tribe, a Harvard Law professor, said invoking the 14th Amendment provision is “much more complex than some people assume” and said simply passing a resolution as Kaine is proposing would not be sufficient to bar Trump from office. “I worry about the cop-out of a condemnatory censure, which Senators shouldn’t be led to think gets them off the hook of having to convict the former president under the Article of Impeachment,” he wrote in an email.

Senate Republicans voted Tuesday for a measure that would have declared the impeachment proceedings against former President Donald Trump unconstitutional because he is no longer in office. The motion, by Sen. Rand Paul, R-Ky., was defeated by a vote of 55-45, showing that Democrats have an uphill climb to secure the 67 votes needed for a conviction. Among those who voted for the motion was Senate Minority Leader Mitch McConnell, R-Ky., who has said he is undecided whether to convict Trump and who worked on the trial calendar with Senate Majority Leader Chuck Schumer, D-N.Y...Democrats maintain that they have precedent on their side. While no president has been tried by the Senate after having left office, Secretary of War William Belknap was tried in the Senate in 1876 after he had already resigned. And other legal experts, such as Harvard law professor Laurence Tribe and University of Texas law professor Steve Vladeck, say the trial is constitutional because one of the considerations for the Senate is whether to bar Trump from future federal office. Democrats note that Trump was impeached by the House while he was still in office, and they maintain that a trial is necessary to hold him accountable for what Schumer called "the most despicable thingany president has ever done," inciting a riot at the Capitol while a joint session of Congress was counting the Electoral College vote.

Among the economic issues facing the new Biden administration is how to help alleviate the weight of $1.7 trillion in student debt, a figure that had ballooned from $1 trillion in 2012. All but about $100 billion of that money is owed to the federal government by some 43 million people. President Joe Biden has said he supports a plan for Congressto cancel as much as $10,000 in debt for federal student borrowers, in part as a response to the pandemic. It’s a proposal that’s been welcomed by some, and called both too much and too little by others...What’s the argument in favor of the debt-canceling plan? That it would reduce stress on those who borrowed for school and give the economy a boost by allowing them to spend money that otherwise would have gone back to the government. The proposed amount of $10,000 per person would also deliver concentrated economic benefit to borrowers of color, according to Toby Merrill, founder and director of the Project on Predatory Student Lending at Harvard Law School. She said there are a disproportionate number of such borrowers in the group who would have their whole debt wiped out. It would remove their risk of future default, she said, adding that, “Many of these borrowers also happen to be among those most severely impacted by the coronavirus and our current economic crisis.”

An op-ed by Cass Sunstein: It’s the most important number you’ve never heard of, and President Joe Biden is about to change it as he resets U.S. environmental policy. It’s the social cost of carbon, a figure that helps determine the stringency of federal regulations governing cars, trucks, power plants, refrigerators, microwave ovens, washing machines, vending machines and much more. The social cost of carbon is a monetary figure that is meant to capture the damage done by a ton of carbon emissions to health, property and agricultural productivity, among other things. (It has two siblings, the social of nitrous oxide and the social cost of methane.) Because federal agencies often base their decisions on cost-benefit analysis, a high social cost of carbon means aggressive regulation of greenhouse gas emissions and a low one will produce modest regulation. Under President Barack Obama, the social cost of a ton of carbon was set at about $50 by a technical working group.1 In 2016, the analysis of the working group was upheld in court. But in one of his first actions, President Donald Trump disbanded the working group and essentially slicedthe social cost of carbon to a range of $2 to $7. That low number played a large role in justifying significantly weaker regulation of emissions from cars, power plants and more. How did Trump come up with that number? He ordered federal agencies to consider only the damage done in the U.S., and to ignore the damage done to the rest of the world. If greenhouse gas emissions from power plants in the U.S. harmed people in Canada, France and South America, that harm would be ignored.

A podcast by Noah Feldman: Harvard epidemiologist Marc Lipsitch shares his concerns about the emerging COVID variants from the UK, South Africa, and Brazil. He also discusses how these new variants could impact vaccine rollout worldwide, and his cautious predictions for when we might return to something resembling normal.

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.”