Media Mentions

President-elect Joe Biden in January will begin an effort to recalibrate the federal judiciary with more liberal appointees who embrace a robust judicial role in addressing national problems and protecting an evolving spectrum of individual rights, a shift from the conservative appointees under President Trump...Harvard law professor Laurence Tribe, an informal Biden adviser since the 1980s, said Mr. Biden believes in strong “national governmental power to deal with emerging problems,” a liberal constitutional approach that the Supreme Court embraced during the New Deal and that underpins federal initiatives from Social Security to the Civil Rights Act of 1964. At the same time, Mr. Biden sees the Constitution protecting individuals not through “a laundry list of rights, but a set of fundamental values and principles,” Mr. Tribe said. That approach has led to Supreme Court decisions that invalidated bans on contraceptives, recognized abortion rights and entitled same-sex couples to marry, which Mr. Biden endorsed before President Barack Obama, Mr. Tribe noted.

Roughly two months out from Inauguration Day, Joe Biden is already facing a brewing political storm among his ideologically-diverse base of supporters, who disagree over the issue of student loan forgiveness. As COVID-19 cases continue to surge—while federal economic protections for student loans, evictions, and expanded unemployment expire in December—a powerful coalition of Democrats, led by Sen. Elizabeth Warren and Senate Majority Leader Chuck Schumer, is pushing Biden to use executive action to cancel $50,000 of student loan debt per person as a form of economic stimulus. Meanwhile, some Democratic voters, joined by moderate Republicans who helped Biden win in key swing states, are looking on in horror. They argue that offering significant relief to people with existing student debt relief is deeply regressive: it excludes a population of blue-collar workers who never earned a college degree but are bearing the brunt of this economic downturn...Eileen Connor, Legal Director at the Project on Predatory Student Lending out of Harvard Law School, which has supported Warren in advocating for the policy fix, says the power to cancel debt is clear. “The language in the HEA is broad, has been there from the beginning, and has not been narrowed,” she says, “even as Congress has put other cancellation authority into the HEA and limited the compromise authority of other agencies in different ways.”

For almost 15 years, Trygve "Spike" Magelssen says he faithfully paid down his student loans each month, slowly chipping away at the original debt of $53,000, even as medical bills, a home improvement loan and other costs left him "financially up against a wall." Then in late 2018, Magelssen, an associate professor of electrical technology at Montana State University-Northern, wondered if he might benefit from Congress' temporary expansion of the so-called Public Service Loan Forgiveness program. Public servants, including teachers, health care workers and law enforcement, can apply under certain requirements, and must make 10 years' worth of payments before the loan's remaining balance can be erased...Theresa Sweet, a student borrower from the Bay Area who was the lead plaintiff in a 2019 lawsuit against DeVos, said Wednesday that she had lost faith in an Education Department that she believed was supposed to be protecting students' interests. Her lawsuit, brought by attorneys with the Project on Predatory Student Lending at Harvard Law School, alleges that DeVos illegally stalled a program known as borrower defense to repayment, a 1990s-era regulation that was expanded under the Obama administration and says borrowers who are cheated by their schools are eligible for federal loan forgiveness. But after a settlement agreement in April, in which DeVos admitted no wrongdoing but pledged to adjudicate the program promptly, the Education Department began issuing blanket denials to student borrowers — setting up an ongoing legal dispute that may finally end under the next administration.

In the winter of 1969-70, Philadelphia had an average temperature of 30.3 degrees Fahrenheit. Last year, the average was 39.4. No one says snow and cold spells are things of the past. But winters have warmed considerably since 1970 in the Northeast, including in Pennsylvania and New Jersey, according to data compiled by Climate Central, an organization of scientists and journalists that research and report on climate. Overall, the group found that winter not only is warmer than it was 50 years ago, it is warming faster than any other season in 38 states, including Pennsylvania and New Jersey...Attempts to address climate change have been stalled since 2017 when President Donald Trump took office, pulled the U.S. out of the Paris Climate Accord, and spent the remainder of his term rolling back 82 environmental regulations, according to the Harvard Law School Environmental and Energy Law Program. Other organizations list more than 100. Some of those rollbacks were aimed at curbing emissions from carbon and methane, both of which are greenhouse gases, from power plants, fracking operations, and auto emissions. President-elect Joe Biden has named former U.S. Sen. John Kerry to a new post, special envoy for climate change, and pledged to rejoin the Paris accord. But if Biden plans to undo the Trump administration’s work, it could take years on some of the regulations because of how government rules are set up and possible court challenges.

An op-ed by Cass Sunstein: President Donald Trump keeps claiming that the 2020 election was stolen from him, and was replete with fraud. He has spread the false assertion that voting machines made by Dominion Voting Systems Inc. deleted millions of pro-Trump votes and shifted hundreds of thousands to his victorious opponent, President-elect Joe Biden. Many Republicans agree that the presidency has been stolen. Polls show that about half of them think that Trump “rightfully won” the election, and a whopping 68 percent have concerns about a “rigged” process for counting votes. Various media outlets associated with the political right have fueled these beliefs. Social media are playing a major role. Wild ideas are circulating on Facebook, Twitter and elsewhere. In a recent interview, former President Barack Obama identified the contemporary media environment as “the single biggest threat to our democracy.” He added: “If we do not have the capacity to distinguish what’s true from what’s false, then by definition the marketplace of ideas doesn’t work. And by definition our democracy doesn’t work. We are entering into an epistemological crisis.” Obama’s claim calls to mind a brilliant 2002 essay, “The Crippled Epistemology of Extremism,” by the late political scientist Russell Hardin, who taught at the University of Chicago and New York University.

An op-ed by Noah Feldman: A school district in Pelham, NY, is in the news for barring staff from wearing masks depicting thin blue line flags, deeming them a political statement. Is this a violation of the First Amendment? To begin, it’s important to note that a ban on teachers and employees is different from banning students from wearing political symbols. According to Supreme Court precedentgoing back to 1969, public school students have free speech rights, although that right has been limited to circumstances where their speech doesn’t disrupt school operations. As a result, a school district couldn’t constitutionally ban students from wearing political symbols. Employees are a different story. The leading case in this area holds that public employees — including school employees — have much more limited free speech rights while performing of their duties. If they are speaking as employees, not as citizens, their speech rights mostly evaporate. Schools can tell teachers what to say in class and what curriculum to teach without violating the teachers’ First Amendment rights, because while teaching, a teacher is speaking as an employee. To limit school employees’ speech as citizens, as with the Pelham employees wearing thin blue line flags, the government has to show that the employees’ speech substantially interfered with their official responsibilities. Based on this rule, a school district can bar the wearing or display of thin blue line flags, given that some students may associate them with hostility against people of color. The theory would be that a teacher who sends a message associated with racism, even obliquely, can’t educate students effectively.

On Monday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe argued that President Donald Trump’s legal case to overturn the presidential election results was doomed to fail — even if he had had more knowledgeable and skilled legal counsel. “Let me ask you about the breaking news from the GSA,” said anchor Erin Burnett. “Emily Murphy, Trump appointee, said she was not pressured to do anything. Trump obviously seems to be clearly taking credit, I recommended she do this, I am the one calling the shots. You have been very clear that this withholding of a transition from the GSA and Emily Murphy, as the chief, could have been in violation of federal law. Do you believe any laws were broken in this delay?” “I do think that laws were broken in this delay, but I think the important thing now is to move forward,” said Tribe. “Whether it is her decision or Trump’s decision doesn’t matter. The fact is that we’re now fully into the transition and all of the harm she has done, which cannot be undone, a lot of people, I think, will die because she dragged her feet as much as she did.” “Now it’s without the slightest doubt, that Joe Biden is the president-elect,” said Tribe. “He will be the president of the United States. He’s forming his cabinet. He’s governing more from outside the government than our pathetic president is from within the government. And it’s very clear that there are no options left. And I do want to say that we shouldn’t simply focus on the ineptitude of his lawyers. It’s not as though if he had a better legal team, he could have done anything. When you don’t have a case, no facts, no law, even get the best lawyers in the world, you’re not going to win.”

App-based rideshare and delivery companies will likely seek to build on a recent California ballot victory to limit potential employment-related liabilities they may face in other states, employment law experts say. Proposition 22, a ballot initiative that was passed by California voters earlier this month following heavy promotion by companies such as Uber Technologies Inc., Lyft Inc. and DoorDash Inc., addresses the realities of today’s workforce and will benefit employers and workers, its proponents say. Opponents, however, have criticized the ballot initiative as being a loss for workers. The proposition carves out app-based drivers from benefits employers are required to provide, including sick leave, workers compensation coverage and unemployment...Terri Gerstein, the director of the Cambridge, Massachusetts-based State and Local Enforcement Project at Harvard Law School’s Labor and Worklife program, which works with government agencies and officials engaged in enforcing workplace laws, said the proposition misleadingly says workers will receive 120% of minimum wage, but “excludes an awful lot of the work time that drivers would be doing,” including time spent cruising before they are summoned to pick up a rider, or providing maintenance on their cars, for which an employee would be paid.

An op-ed by Laurence H. Tribe and Joseph R. Grodin: President Trump’s cynical effort to enlist the courts in his attempt to retain power has failed miserably. Claims of voter fraud and other theories advanced on his behalf have consistently been rebuffed by judges of all political backgrounds, including judges with conservative reputations and federal judges appointed by Republican presidents — including Trump himself. While there are still a handful of cases pending, it is the consensus among lawyers and legal scholars that they are at best on tenuous life support. Trump’s apparent scheme to get a case to the US Supreme Court, with the all but explicit expectation that the justices that he has appointed will somehow join in supporting his fanciful claim of victory in the November election out of loyalty to him or his political cause, is almost certainly destined to defeat. At this time, there are no cases on their way to the Supreme Court that are likely to be heard or to matter. Nor is there any indication that the justices would do anything but follow the law, which is entirely clear on all the issues thus far raised in the dozens of lawsuits that Trump’s rapidly changing team of attorneyshas brought and, in virtually every instance, lost. On Jan. 20, Joe Biden will be sworn in as our next president, and this phase of Trump’s assault on the rule of law, on the peaceful transfer of power that has characterized our nation ever since John Adams passed the torch to Thomas Jefferson in 1801, and on our constitutional republic will be history.

Forget regulating Big Tech: Gig economy companies could face the industry's most aggressive government regulation during a Biden administration. Tech lobbyists and labor experts told Protocol that gig companies are gearing up for an expensive, existential battle with the Biden administration. They know that an antagonistic Biden Labor Department has the ability to override state efforts to limit gig workers' rights, and experts described to Protocol how that could play out...The NLRB, which handles the question of who has a right to unionize, could issue a rule about whether gig workers are employees under the National Labor Relations Act or adjudicate an unfair labor practice charge from a group of gig workers trying to unionize. "That's two routes [at the NLRB] to the same outcome, which is 'drivers are employees,'" said Benjamin Sachs, a professor of labor and industry at Harvard Law School. "Once that determination was made, every Uber and Lyft driver everywhere in the country would have the right to form a union." But the NLRB process will likely be stalled as Democrats wait for the tenure of NLRB general counsel Peter Robb — who has sided with gig companies on the question of worker classification — to expire in November 2021.

Infectious disease epidemiologist Dr. Monica Gandhi and Harvard Law professor and bioethics expert Glenn Cohen join Dr. Ian Smith to discuss taking thymosin alpha-1, a treatment that might show promise but is not FDA approved. Dr. Gandhi shares that she’s really concerned about people taking thymosin alpha-1 because it could lead to something far worse than COVID-19. Plus, Glenn shares that it’s actually unlawful for companies to promote this treatment.

Harvard experts in climate and the environment, including HLS Professor Jody Freeman, see reversals of Trump changes, more global leadership, political hurdles.

There were new additions to classrooms when schools opened this fall. There were plastic shields and cloth facemasks, hand sanitizer and login instructions when learning went online. But something was missing — tens of thousands of students. The coronavirus pandemic has pushed kids out of school for various reasons: health concerns, a parent losing a job causing the family to move, a lack of internet or devices for virtual learning. Because there is no national database, 60 Minutes compiled enrollment data from 78 of the largest school districts in the country and found nearly a quarter of a million students did not showed up when school began. Now, social workers who have spent the last three months searching for those kids expect their job is about to get much harder. A national pause on most evictions is set to expire at the end of the year, and without those protections, children without a home could translate to more students missing from the classroom...While housing insecurity has been a growing concern for years, the pandemic has heightened it. Three quarters of the people who are behind on rent say they cannot make payments because they have experienced an employment-related loss of income. "The pandemic hit on a deep housing affordability crisis and exacerbated the challenges Americans have paying rent," COVID-19 Eviction Defense Project co-founder Sam Gilman '22 told 60 Minutes. "They were one emergency away from not being able to pay rent, and the pandemic was that emergency."

Bob Bauer and Professor Jack L. Goldsmith say experience with President Trump highlights need for long-overdue curbs.

President Donald Trump’s campaign filed notice that it was appealing the dismissal of a federal lawsuit that aimed to block Pennsylvania from certifying its election results unless the state invalidated tens of thousands of mail-in ballots. The campaign’s filing on Sunday, with the U.S. Court of Appeals for the Third Circuit in Philadelphia, had been expected. Trump attorney Rudy Giuliani has said the case should be decided by the U.S. Supreme Court, which has a 6-3 conservative majority. The move is unlikely to stop Pennsylvania from certifying President-elect Joe Biden’s victory in the state as soon as Monday. Trump has said his goal is to “decertify” the state’s results one way or another...Brann ruled both that the Trump campaign lacked standing to sue, and that it had not raised a valid equal-protection claim since Pennsylvania counties were not prohibited under state law from letting voters fix minor ballot errors. “It’s not law, it’s theater and it’s not very good theater,” Harvard Law School Professor Laurence Tribe, a frequent critic of Trump, said in a telephone interview. “It’s dangerous and damaging theater because it undermines the confidence of millions of people in our electoral system and legal system” for the president to be “bouncing in and out of court making outlandish claims,” he said. Tribe also said he doesn’t believes the Supreme Court would overturn Brann’s decision, even if it were to agree to hear the case.

Thursday’s meeting of the Federal Energy Regulatory Commission started off with expressions of comity between its three commissioners. It ended with another round of dissents from its sole Democrat, who warned of possible legal challenges to FERC decisions approved by its Republican majority over his objections. Questions of political pressure on the avowedly nonpartisan agency have swirled around FERC over the past weeks after the Trump administration demoted Neil Chatterjee from his two-year tenure as FERC chairman to appoint fellow Republican James Danly to the leadership position...Ari Peskoe, director of the Electricity Law Initiative at Harvard University, noted that FERC’s subsequent actions to impose even more problematic restrictions on state-subsidized resources in the capacity market of mid-Atlantic grid operator PJM may strengthen legal challenges to ISO-NE's CASPR construct. “One of the key legal issues in both proceedings is FERC’s authority to address state policies,” he wrote in a Thursday email. “FERC went further in PJM, and perhaps clean energy interests will be able to make more convincing arguments based on those facts.”

When Donald Trump won the presidential election in 2016 even though 2.8 million more people voted for Hillary Clinton, everyone from Bill De Blasio, to Michael Moore, to Eric Holder and Bill Maher said that at long last we should abolish the electoral college. Then-California Senator Barbara Boxer introduced a bill to amend the U.S. constitution to do just that. A Gallup poll from September of this year showed that 61 percent of Americans support abolishing the electoral college in favor of a national popular vote, although it's an issue that breaks along partisan lines. 77 percent of Republicans want to keep the electoral college, while 89 percent of Democrats said that we should get rid of it. Is the electoral college the best system for electing a president? That was the subject of an online Soho Forum debate held on Wednesday, November 11, 2020. Richard Epstein, a law professor at New York University, defended the system against Lawrence Lessig, a law professor at Harvard. Soho Forum director Gene Epstein moderated. Lessig won the Oxford-Style debate by gaining 14.29 percent of the audience's support. Epstein lost 2.04 percent of his pre-debate votes.

The resurgence of COVID-19 in Massachusetts could prompt Gov. Charlie Baker to again impose aggressive restrictions on businesses using a decades-old statute, but legal experts say courts are likely to give him broad deference in combating the public health crisis. Baker was one of many governors to impose sweeping business closures and other measures in the spring when the virus first surged in the Bay State. Despite the governor's broad popularity, a number of the emergency orders enacted under the Civil Defense Act have drawn legal challenges. While Baker's record in these suits has not been perfect, experts told Law360 the courts are likely to defer to his authority should he decide to snap restrictions back into place. "While there are limits, the emergency powers mirror the nature of the emergency," said Nancy Gertner, a former federal judge and current Harvard Law School professor, adding that a crisis like COVID-19 would be reviewed by looking at the rational basis of the measures imposed. It's a standard she said the governor is likely to meet. "This is not like mandating motorcycle helmets, which is a public health issue but affects everyone else around the motorcyclist only tangentially in terms of insurance rates and visits to emergency rooms," Gertner said. "This is a direct link where what you do affects me."

For more than a week, a plain-spoken former federal prosecutor named Sidney Powell made the rounds on right-wing talk radio and cable news, facing little pushback as she laid out a conspiracy theory that Venezuela, Cuba and other “communist” interests had used a secret algorithm to hack into voting machines and steal millions of votes from President Trump. She spoke mostly uninterrupted for nearly 20 minutes on Monday on the “Rush Limbaugh Show,” the No. 1 program on talk radio. Hosts like Mark Levin, who has the fourth-largest talk radio audience, and Lou Dobbs of Fox Business praised her patriotism and courage. So it came as most unwelcome news to the president’s defenders when Tucker Carlson, host of an 8 p.m. Fox News show and a confidant of Mr. Trump, dissected Ms. Powell’s claims as unreliable and unproven...A question for conservative media that are more independent of Mr. Trump is how much of the market the unabashedly pro-Trump media dominates in the future. Some scholars said they expected that audience to be substantial. “Drudge and Fox can try to pull back from the abyss,” said Yochai Benkler, a professor at Harvard Law School who studies conservative media. “But the audience is going to get what it wants and reward those who give it to them.”

From the beginning of his presidency, Donald Trump wasted no time establishing a deregulatory agenda as one of the top priorities for his administration. Just 10 days after taking office, he signed an executive order requiring that two federal regulations be rescinded for every new regulation implemented. “The American dream is back,” he said in a statement from the Roosevelt Room.  In the years that followed, it became clear who was to benefit, and who was to lose, from Trump’s American dream.  His administration has rescinded, rewritten, or replaced over 100 environmental protections, rules, and regulations that reduce toxic pollution and industrial waste, protect endangered species, and draw down the greenhouse gas emissions that are accelerating a global climate crisis... “What happened under the Trump administration exposed all of the ways that interpretations of these statutes could be pushed to extremes. The Biden administration can learn from that,” Caitlin McCoy, a staff attorney at the Environmental and Energy Law Program at Harvard University, told Sierra. “It’s not just about putting things back together or returning to the status quo. We need to strengthen regulations, because the climate crisis has accelerated dramatically over the last four years, and we have failed to take action on a federal level. This is an incredible opportunity to think creatively about how we can insulate these rules and regulations from future changes.”

It’s a pressing question not just for higher-education experts and legal wonks. Tens of millions of Americans have a lot riding on the answer: Can the president forgive student debt without Congress? If the president was able to cancel student debt without passing legislation, in theory borrowers could see their balances reduced or eliminated overnight. On the other hand, the chances of Congress agreeing to forgive the loans is, at best, uncertain. Generally, Republicans are not in favor of debt forgiveness. For now, it’s also an open question if President-elect Joe Biden has interest in testing his presidential power in this way...During the 2020 Democratic presidential primary, Massachusetts Sen. Elizabeth Warren vowed to forgive student loans in the first days of her administration, including with her announcement an analysis written by three legal experts, based at the Project on Predatory Student Lending at Harvard Law School, who described such a move as “lawful and permissible.” Biden, however, has not gone as far...CNBC asked Toby Merrill, founder and director of the Project on Predatory Student Lending at Harvard Law School, how she’d explain to a 15-year-old why she believes it’s within the president’s power to do so. “The Constitution gave Congress the authority to control property of the government, like debts owed to it,” she wrote. And Congress, Merrill said, granted the Secretary of Education, who works for the president, “the specific and unrestricted authority to create and to cancel or modify debt owed under federal student loan programs.”