Media Mentions

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.

You wouldn’t know it from reading President Donald Trump’s Twitter feed, but judges across the nation have repeatedly rejected lawsuits filed on his behalf in an unsuccessful effort to overturn Joe Biden’s victory in the presidential race. At latest count, at least several dozen cases have been rejected in court or withdrawn. At one point, Trump lost cases in six states in a single day, NPR tallied. Marc Elias, the Democratic attorney who has been involved in many cases, tweeted that as of the afternoon of Dec. 9, Democrats have notched 53 victories. Some longshot cases are still pending, including a challenge by Texas Attorney General Ken Paxton that asks the U.S. Supreme Court to invalidate the electoral college votes for Biden from Georgia, Michigan, Wisconsin, and Pennsylvania...The fact that the cases have been tossed swiftly, including by Republican judges, shows that the cases are weak, said Harvard law professor Nicholas Stephanopoulos. "Given the rulings of the federal courts in other election law cases, I think they would be receptive to claims of fraud that could actually be substantiated," he said. But that wasn’t the case with the pro-Trump lawsuits, he added.

With Pfizer and its partner BioNTech on the cusp of an authorized COVID-19 vaccine in the United States, a major ethical dilemma now stands in front of the companies and regulators: If the vaccine is authorized, what will happen to the thousands of people who volunteered to participate in Pfizer’s trial? That question was put forth before an independent committee of FDA advisors meeting Thursday to discuss the Pfizer vaccine...From the start, all the people who volunteered for the study knew there would be a 50-50 chance they might get a placebo shot. “You disclose to them at the outset that it’s possible they’re going to receive a placebo,” Harvard Law professor Glenn Cohen said. “It’s not considered unethical,” he added, because researchers don't yet know whether the experimental vaccine is effective...Having two groups of participants allows researchers to “hold everything equal, such that we are confident that any differences we see in the result are from the vaccine itself,” Cohen said. Big experiments are designed this way so scientists can know for sure if a vaccine is working significantly better than placebo. In the final analysis, Pfizer’s vaccine was 95% effective at preventing COVID-19 disease, and it has been shown to be safe over more than two months, the threshold for emergency authorization.

Aided by President Donald Trump, his campaign legal team, and right-wing political pundits, the post-election media landscape has been inundated with disinformation in an effort to sow doubt over President-elect Joe Biden’s win. The statuses of various lawsuits challenging the election results have been a particularly ripe target for such falsehoods, and Texas Attorney General Ken Paxton’s (R) long-shot Supreme Court lawsuit is the latest example of that...First, despite gaining widespread traction among Trump supporters on Twitter and other social media platforms, there is no truth to the notion that the justices already voted 6-3 to hear Texas’s case. Second, the court instructing the states being sued to file a response does not mean the justices will hear arguments on the merits of the action. “Requiring the states to respond is not an indication that the justices plan on hearing the case. It’s an entirely routine move on the part of the Court, one that reflects a simple courtesy that I would have been surprised to see the Court omit,” Harvard Law professor emeritus and constitutional scholar Laurence Tribe told Law and Crime. According to Tribe, who described the lawsuit as “completely frivolous,” the complaint should be dismissed for “failing to establish the standing of Texas to complain of any cognizable injury to the State in any of its various capacities: sovereign, quasi-sovereign, proprietary, or parens patriae on behalf of its citizens and voters.”

When lawsuits began flooding state and federal courts after Election Day, the legal team for President Trump’s reelection campaign, and his supporters, said that as a candidate he was merely exercising his right to explore every legal remedy at his disposal. More than four weeks and 40 losses later, observers in the legal community are aghast at how the campaign is using the judicial system to push baseless allegations of systemic voter fraud, and they want the lawyers leading the effort to be held accountable. “I would like my right to practice law to mean something,” Laurence Tribe, a Harvard University law professor and leading constitutional scholar, told Yahoo News. “And if you can just use your law license to fling bulls*** around, if you can use your law license to take up the time of the court, consume their resources, and undermine the credibility of the legal profession on which the rule of law largely depends in this country — then that’s a terrible thing.” Tribe and more than 1,000 current and former attorneys, retired judges and justices, law professors, former bar association presidents and concerned citizens have signed an open letter calling on bar associations to disavow the Trump campaign attorneys’ conduct, and on disciplinary authorities to investigate, the advocacy group Lawyers Defending American Democracy announced this week.

President Trump’s campaign and his allies’ litany of legal challenges to the 2020 presidential election have not succeeded in changing the results of the election. But two weeks before inauguration, Republican lawmakers who have yet to acknowledge President-elect Joe Biden’s victory will have one last long-shot chance to challenge the outcome showing Mr. Biden won 306 electoral votes to Mr. Trump’s 232...Claiming widespread irregularities in the race between President George W. Bush and Democratic opponent John Kerry, a group of lawmakers objected to Ohio’s 20 crucial electoral votes, potentially putting the election in the balance. Kerry himself did not support the effort. “While I am deeply concerned about the issues being highlighted by my colleagues in Congress and citizens across the country and support their efforts to highlight the need to ensure voting rights,” Mr. Kerry said, the New York Times reported at the time, “I will not be joining the protest of the Ohio electors.” President Trump tweeted support for Brooks after his announcement that he would challenge battleground states’ electoral votes. The statute allowing objection, outlined in the Electoral Count Act, exists because of another contested election, explained Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School. In the 1876 presidential election, three states submitted competing slates of electors, with each candidate “claiming victory in violent and confused elections,” according to the U.S. House Archives.

More than 90% of CEOs give high priority to being agile, according to surveys by Deloitte and McKinsey and most large firms are exploring business agility, at least in their IT departments. Yet these efforts are often limited in scope, and most of the potential gains are unrealized, owing to the lack of agility elsewhere in the firm...Some ask what would it take to put the life back into it? What would it take to make the whole firm Agile? To use a baseball analogy, what would it take to get from being “stranded at first or second base” to “reach home plate”? This three-part article will explore seven central questions...To enable ideas to come from anywhere, the dynamic of the firm has to take the form a horizontal network of competence, rather than a vertical hierarchy of authority. These three elements—customer, teams and network—constitute the core principles—the three laws—of 21st century management. These principles reflect what the management does, not just what it says. Often what management declares for public consumption is merely window dressing. For instance, in August 2019, more than 200 chief executives of major corporations signed a statement of the Business Round Table (BRT) on the purpose of a corporation and publicly renounced the goal of maximizing shareholder value. However, analysts have found little change in corporate behavior in the year since. Harvard law professor Lucian Bebchuk concludes that the BRT statement was signed “mostly for show.” Despite the highly publicized BRT announcement, 20thCentury management principles in these firms remain unchanged and continue to drive corporate behavior.

An article by Noah Feldman: The $900 million Citi-Revlon lawsuit that started on Wednesday is a law professor’s dream. The case, which is being heard by Judge Jesse Furman in federal district court in New York, pits two entirely logical and reasonable principles against one another. On the one hand is the idea that if someone pays you money by mistake, you should give it back. On the other is the intuition that if someone owes you money and transfers it to you — whether by Venmo or by a direct bank transfer — you should be able to keep what you are owed. But what if someone owes you a whole lot of money and, when he means to transfer just the interest payment to you, he accidentally repays the whole debt? That’s roughly what happened in this case. Citi was responsible for sending interest payments to Revlon’s creditors. But through what the bank says was human error, Citi sent the creditors not the interest payments but exactly the total that they were eventually due to receive — down to the penny, more or less. It’s as if instead of paying your monthly mortgage payment online, you accidentally sent the entire outstanding principal to the bank. Could you ask for your money back on the theory that obviously you didn’t intend to pay off your mortgage? Or could the bank keep your payment, on the theory that you do in fact owe them the money and hey, some people pay off their mortgages early?

An op-ed by Cass Sunstein: Dec. 8, 2020, was “safe harbor” day — a day forward for President-elect Joe Biden and another step backward for President Donald Trump. It came and went without a constitutional crisis, punctuated by the Supreme Court’s late-afternoon refusal to overturn Biden’s victory in Pennsylvania. It was important because it means people can stop sweating over the next important day in the transfer of presidential power — Dec. 14, when the electors of the president and vice president actually meet and vote. But, first, what does the idea of a “safe harbor” mean? The answer comes from the Electoral Count Act of 1887, enacted after the most chaotic and vicious presidential election in U.S. history, between Samuel Tilden and Rutherford B. Hayes. The vote in 1876 was sharply contested and followed by a lot of sordid wrangling from which Hayes emerged victorious. The 1887 act was designed to ensure that nothing like the Tilden-Hayes fiasco happened again. More specifically, it was designed to ensure the primacy of the states, so long as they proceeded according to their own law. Section 2 of the Act is the safe-harbor provision.

The U.S. energy transition is well underway. Electricity from solar and wind is increasingly competitive with natural gas power, and the grid is hemorrhaging coal plants that no longer make economic sense. But without any real national climate policy managing the decline of fossil fuels, the transition is scattershot, messy, and full of carnage. Power companies announced more than 13 coal plant retirements this year, in many cases moving up previously announced closures and shortening the window of time the communities that live near and work at those plants have to think about what comes next...There’s also no single, swift action the Biden administration could take to require all fossil fuel–burning power plants to shut by 2035. Ari Peskoe, director of Harvard University’s Electricity Law Initiative, told Grist that instead, the government could try to approximate that deadline through environmental and economic regulations. The Environmental Protection Agency (EPA) could regulate greenhouse gas emissions, and states could choose to adopt even stricter rules. Some are already doing so — three coal plants in Colorado may be forced to shut down in 2028, two years earlier than previously planned, to meet the state’s climate targets and an air quality rule that seeks to improve visibility in Rocky Mountain National Park...The other side of the coin is preventing new gas-powered generators from being built. Peskoe said the EPA could put stricter rules on new plants, and he expects to see rule changes in interstate electricity markets that make the economics of building a new plant less favorable. “They can also stop pipeline expansion too, which is obviously related to power plant expansion,” he added.

Harvard constitutional law professor Laurence Tribe on Tuesday condemned President Donald Trump’s futile bid to overturn the 2020 election result. “Mr. Trump, you have lost,” Tribe said on CNN’s “Outfront” after the Supreme Court dismissed a Republican attempt to reverse Pennsylvania’s certification of President-elect Joe Biden’s win in the state. “You’ve got to move on,” the commentator continued, noting that the United States needs to focus on things like the coronavirus pandemic and national security, not litigating the election. Tribe asked Trump to “stop undermining democracy” and accused him of “trying to sow chaos” with his multiple lawsuits challenging the outcome of the vote. “You’re not going to get anywhere with these ludicrous efforts to overturn the election and to engineer a coup,” he added. “You are a loser.”

If you were walking the streets of Las Águilas, an upmarket neighbourhood of Mexico City, in the early hours of February 28th 1995, you might have noticed a collection of casually dressed people up on the rooftops. Perhaps you’d have mistaken them for stargazers or late-night revellers. In fact they were a crack team of snipers, settling into place for an extraordinary operation...The target was Raúl Salinas de Gortari, a wealthy businessman and elder brother of Mexico’s former president. Salinas’s alleged crime? Assassinating his one time brother-in-law, a political rival...According to Alexandra Natapoff, a law professor at the Harvard Law School, who studies police informants, “people who are facing the deprivation of their liberty and punishment turn out to be extraordinarily creative, sophisticated and entrepreneurial about fabricating stories.” They frame “other individuals and doing anything they can in order to gain their own liberty.” There are also incentives for those in authority to believe informants, because they need to bring in cases. “This dependence can become so great that it creates a sort of perverse romance: ‘falling in love with your rat’,” Natapoff writes in her book “Snitching: Criminal Informants and the Erosion of American Justice”. Once agents are invested in a story they may find it difficult to reject that narrative in the face of inconvenient evidence.

When Sheena Collier moved here from Atlanta 16 years ago to pursue a master’s at Harvard Graduate School of Education, she was looking forward to getting her degree from one of the most prestigious universities in the country. What Collier was not looking forward to, however, was living in the Boston area. Collier, who had just graduated from the historically Black Spelman College in Atlanta, Georgia, had the very distinct impression that there weren’t a lot of people of color here. For her first two years in the area—during which she lived in Cambridge and Allston, interned for a while in Charlestown, and went out at night in downtown Boston—Collier didn’t see anything that changed her mind. Then she moved to Roxbury and began managing after-school programs there. “That was when my whole perception of the city shifted,” she says. “You start to learn that this is who lives in this neighborhood and this is who lives in that one. Boston is diverse—it’s just really segregated.” ... There is no shortage of plans and policy proposals that could help Boston and its suburbs become less segregated. But to turn those bright ideas into lasting change, we’ll need something more: a commitment to take on this debt to our Black community and invest in reversing the harm of decades of housing discrimination. When we talk about integration, it is important not to become enamored with shortcuts, nor to lose sight of the fact that “integration is not a pathway to social justice; it is a result of social justice,” says David Harris, the managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

Schools are relying heavily on technology—from videoconferencing programs to digital-teaching tools and temperature-taking apps—to educate children safely in the age of Covid. But this rapid deployment of new technology means schools are collecting a lot more personal data on students. And that is raising some troubling questions about who has access to the data, how it is being used and whether it is being kept safe. Infrastructure for protecting students’ personal data wasn’t that sound to begin with, says Leah Plunkett, a Meyer Research Lecturer at Harvard Law School, who likens the current situation to building something “using duct tape on top of Legos.” The federal law governing student privacy dates back to 1974, and while some states have more stringent laws, sufficient funding to implement those statutes is often lacking, she says. And many public schools lack the technical expertise or personnel to deal with student-data privacy, she adds. Technology companies often want to keep their data analytics and algorithms proprietary, which can make it difficult for outsiders to see what information is being collected, how it is being used and if it is ever deleted. Schools, meanwhile, increasingly have become targets of cyberattacks.

A podcast by Noah Feldman: Seth Berman, a former state and federal prosecutor and a visiting lecturer at Harvard Law School, discusses how Trump could use his pardoning power before leaving office.

An op-ed by Noah Feldman: Texas has filed an application to the Supreme Court to initiate a lawsuit against Pennsylvania, Michigan, Wisconsin and Georgia — four swing states that Joe Biden won in the presidential election. The lawsuit is a piece of theater, not a credible legal strategy. The lawsuit exploits a quirk in the Constitution that allows a state to sue another state directly in the Supreme Court, without starting in the lower courts. That gives the justices an opportunity to weigh in, in the event that any of them chooses to do so. It’s unlikely that the justices will say anything about this suit, allowing it to become moot once President-elect Biden is sworn in. And if any of the justices do issue a statement, it won’t change the election outcome. So on that level, there is nothing to worry about. Nevertheless, the attempt reflects a deeper perception of the court — and that perception is worrisome. President Donald Trump has made it clear he would like the Supreme Court to somehow find a way to overturn the vote. In Trump’s fantasy world, apparently shared by Texas attorney general Ken Paxton, the Supreme Court will engage in a constitutional coup d’état and give Trump a second term. This idea is based on a view of the court as entirely partisan. It’s disrespectful of the rule of law. And it’s wrong, whether held hopefully on the right or fearfully on the left.

Electric utilities have a legal obligation to plan for climate change and its impacts under public utility and state tort laws, and could face liability if they fail to do so, according to a new report from the Environmental Defense Fund and the Sabin Center for Climate Change Law at Columbia Law School...The use of tort law, which covers harm related to civil claims, could provide "another legal mechanism for reforming local electricity distribution," according to Ari Peskoe, director of Harvard University's Electricity Law Initiative. But he said "the best approach" remains using the utility regulatory commissions to ensure utilities are prepared for climate change...Ratemaking and planning processes remain the most effective way to reform how utilities do business, according to Peskoe. "Reform advocates can participate in those processes, but ultimately PUCs make the decisions," he said in an email. "Tort law provides another avenue for advocates, although it’s more reactive." Peskoe said claims made under tort law can be "another tool in the toolbox for advocates to pursue reforms." "I suppose the goal of these tort cases would be to make utilities’ past practices so expensive ... that they are essentially compelled to reform their operations or planning in response," Peskoe said.

President Donald Trump ran his 2016 presidential campaign on the promise that he was an expert dealmaker, a political outsider whose expertise lay in the business realm. Yet curiously, the self-described dealmaker-in-chief passed up the chance to purchase millions of doses of Pfizer/BioNTech's novel coronavirus vaccine, a decision that will slow the rate at which Americans can access the vaccine. The company made several efforts to convince Trump to purchase more than the 100 million doses of the company's vaccine candidate that it had reserved over the summer for $1.95 billion, according to The New York Times. Yet Trump turned down the offers, which gave other nations like the United Kingdom the opportunity to lock them down first...Harvard law professor Laurence Tribe had his own speculative theory, tweeting, "Who among us would be surprised if Trump or some of those close to him had financial interests that accepting Pfizer's offer could have compromised? Isn't that very prospect a devastating indictment of the corrupt family running this administration?" Writing to Salon, Tribe observed that while "it's well beyond my capacity to conduct any such inquiry. I was careful in my tweet just to raise the question, not to offer an answer. Given the vast web of financial holdings in the Trump orbit, and this president's past history of corrupt dealings, it's a natural question to raise. And my main point was that the very fact such a question would seem plausible with respect to a sitting president is a sad comment on where we find ourselves."

The U.S. Supreme Court declined Tuesday a request to block the certification of Pennsylvania’s election results, a decision that could spell the end of the Trump campaign’s meritless efforts to overturn the presidential election results. In an order issued late Tuesday afternoon, the court denied a petition for injunctive relief from U.S. Rep. Mike Kelly, R-Pa., in a case that was dismissed last month by the Pennsylvania Supreme Court. The decision comes on “safe harbor day,” the federally mandated deadline by which states must resolve legal challenges to the certification of presidential elections...On Monday, Texas Attorney General Ken Paxton sued Pennsylvania, Georgia, Michigan and Wisconsin, seeking to prevent those states — all of which voted for Biden — from appointing Democratic electors and asking to delay the Electoral College meeting, which will happen on Dec. 14...Harvard University law professor and leading constitutional scholar Laurence Tribe told Yahoo News on Tuesday that the case, like the one in Pennsylvania, has no merit. “There’s clearly no legal procedure by which states can ask the Supreme Court to jump in and allow each of them to challenge the way others are picking their electors,” Tribe said. Article II of the Constitution says each state, through its legislature, determines how its electors are to be chosen. “Texas has no say in the matter of how Pennsylvania or Michigan or Wisconsin chooses its electors,” Tribesaid. “The attorney general of Texas should be ashamed of himself.”

Around the election, social media platforms including Facebook and Twitter were praised for how quickly and widely they applied warning labels to misinformation. But President Donald Trump's 46-minute video last week, which was riddled with election misinformation and conspiracy theories discredited by his own officials and the courts, has made unmistakably clear what many digital democracy experts have been warning for months: labels are not enough. Social media platforms' misinformation labels, they've said, are inadequate and ill-matched for the torrent of false claims that continue to divide Americans and jeopardize their faith in democratic processes...Twitter's label on Trump's video perfectly captures how outgunned the companies still are. Trump didn't just make one claim about election fraud in the video. The speech contained a multitude of debunked allegations, baseless conspiracy-mongering and unproven complaints...Legacy news outlets handled the posts very differently, according to Yochai Benkler, a professor at Harvard Law School and co-director of the Berkman Klein Center for Internet and Society. "We saw much more explicit treatments of the video as false or without basis, by centrist professional media, in a way that is likely to help the millions of people who are not already committed to a partisan interpretation of the election deal with this steady flow of disinformation from Trump," Benkler said.