Media Mentions

An op-ed by Noah Feldman: John Le Carré, who died this week, was one of those rare writers who transcends his genre. His books were about spies, especially British ones. But his best novels were full-blown masterworks that explored enduring themes like betrayal, illusion and (his favorite) late middle age. Since hitting middle age myself, I’ve re-read his three greatest novels in every year. The appeal of Le Carré’s writing can be hard to state simply, because in some sense it is really an anti-appeal. His characters might be spies, but they aren’t dashing or handsome. They don’t take heroic action or engage in leaps of faith. Le Carré’s characters plod. Yet for all their superficial ordinariness, Le Carré’s characters are memorable for the richness and complexity of their inner lives. George Smiley, Le Carré’s greatest creation, is short and “podgy.” He wears clothes that are too big for him and polishes his glasses on the silk lining of his tie. His wife, Ann, is chronically unfaithful. In his mind, however, Smiley bestrides the world like a colossus. He sees all — or at least, all that he is able to see in the light of his limitations. Warning: spoilers ahead. In the first of Le Carré’s great trilogy, “Tinker, Tailor, Soldier, Spy,” Smiley manages to uncover a mole (a word he popularized and possibly invented) in the heart of the British Secret Service. But it takes him longer, much longer than it should — because the mole had an affair with Ann.

A podcast by Noah Feldman: Michael Alexander, a professor of religious studies at the University of California, Riverside and the author of the new book “Making Peace with the Universe,” discusses how different spiritual masters helped guide him through a moment of crisis.

An essay by Jeannie Suk Gersen: After the Electoral College cast its votes and affirmed his victory, on Monday, Joe Biden declared that “democracy prevailed” and “faith in our institutions held.” And Senate Majority Leader Mitch McConnell finally congratulated Biden as President-elect and Kamala Harris as Vice-President-elect. On January 6th, a joint session of Congress will officially count the votes. The result should be more than assured. But last week brought the shock of seeing seventeen Republican state attorneys general and more than half of House Republicans sign amicus briefs supporting Texas’s unsuccessful bid to have the Supreme Court prevent four states’ electoral votes from being cast. That astounding show of loyalty to Trump made it imaginable that Republican lawmakers, having failed to convince the Court to overturn the election result, would use Congress to attempt it. On December 13th, Representative Mo Brooks, Republican of Alabama, announced his intent to dispute Biden’s victory by challenging the votes of five swing states in the January congressional session. The group he will lead in the effort so far includes Representatives-elect Barry Moore, from Alabama, and Marjorie Taylor Greene, from Georgia. This year’s election and post-election period have felt unprecedented in so many ways, but there are long-standing rules for challenging electoral votes for President on the floor of Congress.

In a recent Q&A with the Harvard Gazette, experts and co-authors John Palfrey ’01 and Urs Gasser LL.M. ’03 offer advice on how to become…

President-elect Joseph R. Biden Jr.’s ability to reshape the economy through legislation hinges in large part on the outcome of the two Georgia runoffs in January that will decide control of the Senate. But even without a cooperative Congress, his administration will be able to act on its agenda of raising workers’ standard of living and creating good jobs by taking a series of unilateral actions under existing law...Under Mr. Biden, the National Labor Relations Board is likely to be far more aggressive in punishing employers that appear to break the law while fighting union campaigns. It can issue a regulationmaking it easier for the employees of contractors and franchises to hold parent companies accountable for violations of their labor rights, such as firing workers who try to unionize. According to Benjamin I. Sachs, a Harvard Law School professor, the board could also seize on a legal provision that allows the federal government to cede jurisdiction to the states for regulating labor in certain industries. That could enable a state like California or Washington to create an arrangement in which gig workers, with the help of a union, negotiate with companies over wages and benefits on an industrywide basis in that state, a process known as sectoral bargaining. Under such a system, a union would have to show support from a fraction of workers in the industry, such as 15 or 20 percent, to be able to negotiate with multiple gig companies on behalf of all workers. By contrast, under federal law, the union would typically have to win majority support among the workers it sought to represent, a daunting challenge in a high-turnover industry like gig work.

It’s been a little over a year since the Business Roundtable (BRT) issued its much-ballyhooed statement on corporate purpose. Many of the commentators who welcomed it rapturously predicted the statement would usher in a new era of corporate social responsibility (CSR), with corporations tackling a range of social problems such as climate change and racism. After a year in which society and business have faced unprecedented problems, it seems fair to ask whether corporations have really embraced the BRT’s vision of corporate purpose...Further evidence that the BRT statement was mostly greenwashing comes from surveys by legal scholars Lucian Bebchuk and Roberto Tallarita. They found that most CEOs who signed the statement had not gotten approval to do so from their companies’ board of directors, which one would expect in the event of a major shift in corporate policy and purpose. They also found that the corporate governance guidelines of a sample of signatory firms had not been modified to reflect the statement’s emphasis on social responsibility and stakeholders. To the contrary, as they pointed out, “explicit endorsements of shareholder primacy can be found in the corporate governance guidelines of the two companies whose CEOs played a key leadership role in the BRT’s adoption of its statement.” ... In an open letter to the CEOs of the signatory firms, management academic Bob Eccles pointed out that the logical next step would have been for their boards to “publish a statement explaining the specific purpose of your company,” but “not a single one of your boards has published such a statement.” Bebchukand Tallarita’s argument that boards are not even talking the talk, let alone walking the walk, remains valid.

An article by Lawrence Lessig: As reported by Rick Hasen at the Election Law Blog, Stephen Miller has now announced that alternative slates of electors are in fact voting in each of the swing states. Rick discounts the significance of this. I think he moves too quickly in reaching that happy conclusion. The precedent is Hawaii, 1960. As Van Jones and I had written on CNN.comon November 4, “In 1960, Hawaii’s vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes. On November 28, the acting governorcertified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon. But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii’s voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then-Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to ‘open all the certificates’ as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.” As with what Miller imagines with the swing states in 2020, Hawaii had two certifications. The question for Nixon was whether he would count that second certification, given after the electors were to have voted (especially since they were electoral votes for Kennedy, not for Nixon).

Teenagers spend an average of nine hours a day online, and many parents worry about the impact of screen time on their children. There is no need to worry, said digital experts Urs Gasser and John Palfrey, authors of the newly released book “The Connected Parent: An Expert Guide to Parenting in a Digital World.” The Gazette spoke with Gasser, professor of practice at Harvard Law School and executive director of the Berkman Klein Center for Internet and Society, and Palfrey, president of the MacArthur Foundation and former faculty director of the center, on ways parents can embrace the philosophy of “connected parenting” and help children be safe online and make the most of new media and technology.

An op-ed by Noah Feldman: Attorney General William Barr has resigned with a little more than a month left in President Donald Trump’s administration. This seems to suggest that Barr thinks what happens in the next five weeks could irretrievably tarnish his legacy. If so, that’s pretty stunning, considering how much Barr has already diminished his reputation and that of the Justice Department with his pro-Trump shenanigans. What’s the January surprise Barr wants no part of? One possibility is that Barr wants to create bureaucratic distance between himself and the president so that he can say he resigned rather than serving out his term. But this seems implausible, even for a canny bureaucratic operator like Barr, given how close he has been to the presidency. And it certainly seems at odds with the fawning tone of his resignation letter. Another option is that Barr realizes that Trump plans to continue challenging the election outcome. Barr has been willing to tolerate Trump’s arguments thus far, even if he himself has refused to say that Justice has evidence of meaningful fraud. Yet the prospect of increasingly wild claims of conspiracy and an inauguration without Trump in attendance might perhaps be enough for Barr to prefer to be out of town — and out of the administration — for the next few weeks. The most likely possibility, however, involves presidential pardons, and perhaps legally questionable executive orders designed to make more permanent some of Trump’s policies.

An op-ed by Cass Sunstein: Donald Trump’s administration is doing an extraordinary amount of “midnight rule-making” — issuing regulations at the very end of the president’s four-year term. This will cause real trouble for the Joe Biden administration, which will have to try to unwind a lot of it. As of now, Trump’s Office of Information and Regulatory Affairs has a whopping 136 regulations under review, suggesting that there might well be a last-minute tsunami. Some of the last-minute regulations are genuinely terrible, such as new restrictions on granting asylum to people threatened with gang or gender violence. But others are more complicated, in the sense that they are likely to produce disparate reactions among Biden’s supporters — and potentially reveal significant fissures among progressives. A recent example comes from Trump’s Environmental Protection Agency, which has finalized a seemingly technical regulation directing how the agency does cost-benefit analysis. The changes have provoked outrage among those who see it a clear effort to make it harder for the EPA to protect public health and the environment. But if you read the rule carefully, you might hate it less, or like it more, than you expected. The rule is called “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” Ignore the boring name and consider its three principal elements.

Laurence Tribe, a constitutional law professor at Harvard, debunks Stephen Miller's false claim that "alternate" electors could be sent to Congress to overturn Biden's win.

Thirty years ago, East and West Germany reunited after the fall of the Soviet Union. It was 1990, the same year The World Wide Web debuted, plus singer Mariah Carey’s blockbuster hit, "Vision of Love," kicked off her career. And President George H.W. Bush signed into law the Americans with Disabilities Act (ADA) banning discrimination against millions of Americans in education, transportation, and public accommodations. Three decades later, the 1 in 4 adult Americans with disabilities have benefitted from the ADA’s protections. But the benefits are being threatened by the wide-ranging impact of COVID-19, and by the ever-widening inequities in health care and employment. In this 30th anniversary year of the passage of the ADA, the disability rights movement looks back to the bill’s legacy and ahead to new challenges. Guests: Kristen McCosh, commissioner of the Disabilities Commission for the City of Boston. Michael Stein, executive director of the Harvard Law School Project on Disability and visiting professor at Harvard Law School. Jeffrey Yasuo Mansfield, design director at MASS Design Group and a Disability Futures Fellow. Plus, American Sign Language (ASL) interpreter, Aaron Wegehaupt, joined to facilitate communication between everyone.

An article by Curtis Bradley, Jack Goldsmith, and Oona Hathaway: In late October, the United States and Sudan reportedly signed a bilateral agreement “to resolve claims arising from the 1998 East Africa embassy bombings in Tanzania and Kenya.” This agreement apparently requires Sudan to pay hundreds of millions of dollars and commits the United States to enact legislation that would restore Sudan’s immunity under the Foreign Sovereign Immunities Act, which it lost when it was deemed a state sponsor of terrorism. A side agreement apparently even included specific legislative text and gave Sudan a veto over any changes to it. The Sudan agreement was not concluded as an Article II treaty, which must be submitted to the Senate for the advice and consent of two-thirds of the senators present. (The Article II process, as we have previously discussed, is now practically dead.) Instead, like hundreds of other agreements concluded in recent years—and thousands concluded in recent decades—the agreement appears to have been concluded through what is known as an “executive agreement”—a binding international agreement made by the president based on his own constitutional authority or authority granted in advance by Congress. Despite its importance, the public currently has no access to this agreement. The executive branch is not required to publish executive agreements until 180 days after they have entered into force. Nor is this agreement subject to review or approval by Congress. In fact, the executive branch is not even legally obligated to disclose such agreements to Congress until after the agreements are already binding on the United States.

In the drawn-out aftermath of the US election, Amelia’s* dad was losing faith in Fox News. Why wasn’t it covering more allegations of voter fraud, he asked. The network was “a joke”. And so he turned to alternative sources of information: podcasts like Bannon’s War Room, hosted by alt-right figure Steve Bannon, which regularly broadcasts baseless claims about ballot dumps and illegal voters. And an old favourite of his, the rightwing Catholic podcast The Taylor Marshall Show. In the US, Australia and across the Anglosphere, people regularly spend hours with strangers talking directly into their ears. Around one third of Australian news consumers are reported to be podcast listeners, and indications are that numbers have grown during the pandemic. Yet the role of podcasts in the information ecosystem has gone largely unexamined...Apps such as Apple and Google Podcasts “are significant gatekeepers” of what kind of audio content reaches our ears, says Evelyn Douek, a lecturer at Harvard Law School, although they function more as directories for organising and discovering shows than as social networking platforms, and have varying degrees of oversight and control. A Google spokesperson said Google Podcasts indexes audio available on the web much like Google Search. “This can include topics and ideas that may be controversial,” she said. “Google Podcasts ... only removes podcasts from its index in very rare circumstances, largely guided by local law.”

President Trump’s legal team is entering into what might be its most desperate election challenge yet — and given its overwhelmingly failed past efforts, that’s saying something. Its move to join in the attempts by Texas Attorney General Ken Paxton (R) to have the Supreme Court overturn the results in four key states has been ridiculed even by some top Republicans...Harvard University law professor Mark Tushnet argues that there are violations of Rule 11 in the Texas lawsuit and others filed on behalf of Trump, given that several of them have included false allegations, affidavits from witnesses whose claims judges said didn’t stand up and inaccurate descriptions of those affidavits. But he notes that the bar for a judge deeming a lawsuit frivolous or in violation of Rule 11 is generally high and that politics could factor into any decisions to sanction the lawyers involved. “Judges haven’t yet issued sanctions because, again in my view, they are sensitive to the fact that in the current context, doing so would immediately subject them to criticism for acting in a partisan manner,” Tushnet said. “A Trump-appointed judge might be more immune from that criticism than others, though not entirely immune.”

President Donald Trump was hedging his bets on a judicial branch that now carries a powerful Trump imprint, hoping judges and justices would do what voters and state secretaries of state did not: give him a second term. But in the end, the courts didn't come through for Trump, who Friday evening lost what was almost certainly his last, long-shot effort to hang onto power after failing in his reelection bid against President-elect Joe Biden by more than 7 million votes. A Supreme Court that is one-third Trump appointees rejected a lawsuit led by the state of Texas and joined by 17 other GOP-led states to challenge the results in several battleground states that voted for Biden...Presidents can appoint hundreds of jurists to the federal bench, but once in the job judges and justices don't work for the president and have zero obligation to do his bidding. "It's not inaccurate to say that the three (Supreme Court) Trump appointees are extremely conservative. That doesn't mean they are going to do whatever the incumbent president or the conservative majority in the Senate or congressional minority in the House want them to do. It just doesn't work like that," says Mark Tushnet, a Harvard Law School professor who clerked for the late Justice Thurgood Marshall. "They're conservative in an ideological sense, not in a partisan policy sense," Tushnet adds. The case launched by Texas Attorney General Ken Paxton was so weak, Tushnet says, that it was always going to be nearly impossible for the high court to rule in team Trump's favor. "Even if they were extremely driven by pure politics – which they aren't, but even if they were – you have to give them something to work with," Tushnet adds. And Paxton's claim – that Georgia, Michigan, Pennsylvania and Wisconsin conducted fraudulent elections, harming Trump-supporting Texas – was the thinnest of legal stretches, he says.

Politically speaking, Senate Bill 945 was a perfect weapon for Sen. Kelly Loeffler (R-GA) in the midst of a hard-fought campaign. The legislation, dubbed the Holding Foreign Companies Accountable Act, would require foreign companies listed on U.S. stock exchanges to regularly open up their books to auditors and U.S. investors—or else get booted from those exchanges. The clear target of the legislation was China, where companies invoke state security laws to avoid sharing potentially revealing information about the full scope of Beijing’s economic influence...The expectation among analysts was that many of those companies would choose to leave rather than subject themselves to scrutiny. And those departures will hurt the exchanges, said Jesse Fried, a professor at Harvard Law School who specializes in corporate and securities law. Companies pay hefty yearly fees to be listed on exchanges like the NYSE. And the trading of shares and other financial products offered on exchanges commands fees, that while small, add up to a sizable take when considered collectively—especially for ICE’s NYSE, which processes $20 trillion worth of trades annually. The delisting of companies, says Fried, will also dry up IPOs from China. “They make up a large percentage of IPOs, which are an important source of fresh blood and boost the prestige of the exchanges as well as their revenues.” “It’s not surprising to me,” Fried added, “that they’d lobby heavily against the HFCA.” On Monday, the House ended up passing the HFCA, unanimously, setting up Trump to sign it into law before he leaves office in January.

The long-held but unchallenged legal assumption that a president can’t issue pardons for federal civil infractions, including tax penalties and fines, may end up before the Supreme Court, some tax professors say...No one disputes that the president can’t pardon state offenses. But Hemel pointed to legal research by Yale Law School lecturer Noah A. Messing in 2016, “A New Power?: Civil Offenses and Presidential Clemency,” which argues that the civil scope of the president’s pardon powers has never been thoroughly defined by courts and may already include the power to excuse civil infractions as well as crimes...But Harvard University’s Laurence H. Tribe told Tax Notes that, while he’s unfamiliar with Messing’s research, he “wouldn’t want to opine either way on whether the pardon power can properly be construed to extend so far as to extinguish civil liability to the United States.” “Whatever confusion exists in the tax professional community [about the extent of the pardon power] is understandable but, well, confused,” Tribe said...Tribe said civil tax reimbursements, with interest, of amounts improperly withheld from the treasury can't be pardoned. “However, civil fines and penalties that, but for labels and the standard of proof and level of stigma, might have been deemed criminal, might be in a different category,” he said...Tribe said he doesn’t believe Trump has the power to pardon himself, but recognizes the issue will probably end up before the Supreme Court.

President Trump has governed by Twitter for the last four years – using it to announce new policies, fire government officials, and attack his enemies. But there are signs that the power of that bully pulpit is dampening during the lame-duck period of his presidency, even as the president uses it to push baseless claims of election fraud. His account has lost more than 300,000 Twitter followers since Nov. 17, according to data from the Twitter tracker Factba.se. That’s just a tiny fraction of his 88.6 million followers — but it’s a shift for an account that had largely been growing at a fast clip for most of his time in office, even as he attacked social media companies for censoring conservatives. Trump had only 20.8 million followers when he took office on Jan. 20, 2017, per Factba.se...Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at Harvard University and an expert on the news media and misinformation, said he expects a “somewhat diminished" presence from Trump on Twitter after he leaves office. “This initial loss suggests a very small dribbling away,” Benkler said. But overall, he said he continues to have stable support from his base, and the drama and entertainment that comes from his feed could keep drawing people in. “I would be very surprised if he goes quietly into the night either willingly or unwillingly and just gets ignored by people,” Benkler added. “He's going to keep being a player.”

Missouri and five other states on Thursday threw their support even further behind the Texas lawsuit aiming to prevent Georgia, Pennsylvania, Michigan and Wisconsin's electors from casting their electoral votes by asking the Supreme Court to let them join the Texas suit. Missouri on Wednesday led a group of 17 states in filing a brief that supported the Texas lawsuit, which alleges that the four key swing states that voted for President-elect Joe Biden violated the Constitution by having their judicial and executive branches make changes to their presidential elections rather than their legislatures...Despite the backing of so many state attorneys general, most legal experts say the Texas suit is fatally flawed in several ways and nearly certain to fail. "This is political posturing through litigation. Not one of those attorneys general believes they are entitled to win," Harvard Law professor Lawrence Lessig told Fox News. Lessig is a former clerk for the late Justice Antonin Scalia and currently works with Equal Votes, a nonprofit that seeks to end winner-take-all allocation of electoral votes in states. Lessig continued: "As lawyers, that should stop them from signing onto such an action. But they are acting as politicians, not lawyers here – to the detriment of the rule of law."

President-elect Joseph R. Biden Jr. is facing pressure from congressional Democrats to cancel student loan debt on a vast scale, quickly and by executive action, a campaign that will be one of the first tests of his relationship with the liberal wing of his party. Mr. Biden has endorsed canceling $10,000 in federal student debt per borrower through legislation, and insisted that chipping away at the $1.7 trillion in loan debt held by more than 43 million borrowers is integral to his economic plan. But Democratic leaders, backed by the party’s left flank, are pressing for up to $50,000 of debt relief per borrower, executed on Day 1 of his presidency...The “benefit of outright cancellation is simplicity,” said Eileen Connor, the legal director at the Project on Predatory Student Lending at Harvard Law School, which represents thousands of students defrauded by their colleges and mired in legal fights with the Education Department over loan forgiveness. “We are facing an unprecedented public health and economic crisis, and we need to use every tool readily available to keep families and the economy afloat,” Ms. Connor said.