Media Mentions

Everything in our lives this past month has existed at the intersection of the coronavirus, or the election. In the past two weeks, there's been a slew of legal questions around both. President Donald Trump refuses to acknowledge his defeat by President-Elect Joe Biden. And his team and other Republicans have turned to the courts, citing unverified and unproven claims of voter fraud in key battleground states. Plus, as the coronavirus surges nationwide and here in Massachusetts, there are renewed legal questions about the balance between individual freedom and actions state and federal government can take to curb infections and hospitalizations. We take listener calls with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's Legal Analyst. And with John Fabian Witt, a professor of law and history at Yale University, is author of the new book "American Contagions: Epidemics and the Law from Smallpox to COVID-19."

A podcast by Noah Feldman: Dr. Paul Offit, a professor of vaccinology at the University of Pennsylvania and member of the F.D.A.’s vaccine advisory panel, discusses how the Pfizer and Moderna vaccines work and how they could be distributed.

An op-ed by Evelyn Douek: There are many important questions that could be asked at the Senate Judiciary Committee hearing with tech CEOs today regarding their handling of the US 2020 election. Foremost among them should be “Where is Susan Wojcicki, YouTube’s CEO?” The election was billed as a major test for social media platforms, but it’s one that YouTube failed weeks before election day. The platform is playing host to, and is an important vector for, spreading false claims of election victory and attempts to delegitimize Biden’s win. YouTube had to have seen it all coming, and it shrugged. That’s YouTube’s fault—but it’s also a result of the success of its broader strategy to keep its head down and let other platforms be the face of the content moderation wars. In general, the media, researchers, and lawmakers have let this strategy work. YouTube is one of the biggest social media platforms in the country—indeed, a Pew Research Center survey last year found it was themost widely used. Over a quarter of Americans get news from the platform. There have been millions of views of videos with false claims of election results or voter fraud on YouTube since election day, with nothing more than a small, uniform label about election results attached beneath them. And yet, the platform often escapes scrutiny. Judging by much of the press coverage and public outrage about the role that social media platforms play in the modern information ecosystem, one could be forgiven for thinking that Facebook and Twitter were the only major sources of online information. This disproportionate focus goes beyond public narratives: While Facebook and Twitter CEOs Mark Zuckerberg and Jack Dorsey have been repeatedly hauled before Congress in the past few years, YouTube CEO Susan Wojcicki has escaped summons.

An article by Ashley Nunes:  The longest grounding of a commercial jet is set to end. Sometime this week, the Federal Aviation Administration is expected to certify the Boeing 737 MAX fit to fly. The aeroplane was grounded in 2019 following two crashes. The first involved a Lion Air jet which killed all 189 people on board. Months later, a second MAX jet, operated by Ethiopian Airlines, crashed. It also left no survivors. The crashes triggered lawsuits and government investigations. The purported culprit in both crashes was technology — more specifically, a new flight-control feature dubbed MCAS (short for Maneuvering Characteristics Augmentation System). The feature was designed to prevent the aeroplane’s nose from getting dangerously high by automatically lowering it. However, under certain conditions, the MCAS lowered the nose so strongly that pilots struggled to maintain control. In the aftermath, Boeing drew fire on several fronts. Firstly for charging extra for certain safety features. Where the MAX is concerned, the company wanted airlines to pony up more cash — at least $80,000 by one estimate — for add-ons that would alert pilots if the aircraft’s systems were malfunctioning. But Boeing was more broadly criticised for not properly vetting its technology before selling it. That was then, this is now. Moving forward, not only is the company making all safety features free, Boeing has also dedicated tens of thousands of staff hours towards fixing the MAX.

Children’s book author Cynthia Levinson and her husband Sandy Levinson, a constitutional scholar and a Visiting Professor of Law at Harvard Law School, have recently published “Fault Lines in the Constitution: The Graphic Novel,” based on their 2017 constitutional law primer for young readers.

Securities and Exchange Commission Chairman Jay Clayton will step down at the end of the year, opening the door for Democrats to push for a more aggressive approach to regulation of Wall Street. His departure, made public on Monday, is the latest in a wave of expected exits at federal regulators as power changes hands in Washington. Mr. Clayton, 54 years old, said he intends to remain active on the commission until the end of the year. Mr. Clayton, a longtime corporate deals lawyer at Sullivan + Cromwell LLC and a political independent, was nominated by President Trump in 2017. He pursued an active enforcement agenda that included cases against Silicon Valley biotech startup Theranos Inc. and auto makerTesla Inc. As a regulator, he focused on making it easier for companies to raise capital—even if that meant bypassing the public markets that the commission polices. “The guy is a moderate by nature, and that’s the way I think he has conducted himself at the SEC,” said Hal Scott, a professor at Harvard Law School. “The overall system of securities regulation has to do with disclosures, and enforcement, and making sure we don’t have insider trading, and those issues. I don’t think he’s really relaxed much around that.”

Harvard Law School professor Nicholas Stephanopoulos joins CBSN to discuss the Trump campaign and Republican Party lawsuits over the 2020 election and whether their allegations are likely to stand up in court.

An op-ed by Cass Sunstein:  Here are three popular myths about executive orders: They are a way to bypass Congress; They are an insult to the Constitution; They are new and a product of the imperial presidency. Even among serious and experienced observers, there is widespread belief in these falsehoods. That’s a big problem because President-elect Joe Biden is about to issue a bunch of executive orders. Citizens need to understand what they are and what they do. Executive orders often take the form of directives from the president to his subordinates. For example, Biden might tell the secretary of homeland security to adopt new immigration policies. Or he might direct his secretary of education to reverse President Donald Trump’s civil rights policies. Executive orders do not bypass Congress. Typically, they rely on statutes that Congress has already enacted. If Biden directs the Environmental Protection Agency to issue new regulations to reduce greenhouse-gas emissions, he will be relying on the Clean Air Act, which is already the law. In domains including education, occupational safety, Covid-19, clean water and civil rights, Congress has given plenty of power to executive agencies. Executive orders from the Biden administration would rely on the power that agencies already have. For that reason, they are hardly an insult to the Constitution. So long as what they order is within the bounds set by congressional enactments, they are a perfectly legitimate exercise of executive power — which is, after all, the power to execute the law.

In August, following a Facebook event at which two protesters were shot and killed in Kenosha, Wisconsin, Mark Zuckerberg called the company’s failure to take down the event page asking militant attendees to bring weapons “an operational mistake.” There had been a new policy established earlier that month “to restrict” the ability of right-wing militants to post or organize in groups, Facebook’s CEO said, and under that rule, the event page should have been removed. BuzzFeed News has learned, however, that Facebook also failed to enforce a separate year-old call to arms policy that specifically prohibited event pages from encouraging people to bring weapons to intimidate and harass vulnerable individuals...Harvard lecturer and content moderation researcher Evelyn Douek commended the senators’ letter for attempting to highlight the gap between Facebook’s policy announcements and its applications of those policies. “We've gotten to a place where for many of the major platforms, their policies on paper are mostly fine and good,” she said. “But the question is always, always ‘Can and will they enforce them effectively?’”

Robert Fleming has a claim to be a pioneer of active asset management. His First Scottish investment trust pledged to invest mostly in American securities, with choices informed by on-the-ground research. Fleming saw that shareholders needed to act as stewards in the governance of the businesses that they part-owned. So once the fund was launched, in 1873, he sailed directly to America. It was the first of many fact-finding trips across the Atlantic over the next 50 years, according to Nigel Edward Morecroft’s book, “The Origins of Asset Management”. The art of asset management is capital allocation. It is easy to miss this amid confusing talk of alpha and beta, active and passive, private and public markets...A paper in 2017 by Lucian Bebchuk, Alma Cohen and Scott Hirst, a trio of law professors, found that asset managers mostly avoid making shareholder proposals, nominating directors or conducting proxy contests to vote out managers. Index funds are especially at fault. Their business model is to avoid the costs of company research and deep engagement. The law professors reckoned that the big three asset managers devoted less than one person-workday a year to stewardship.

On Nov. 3, Facebook added an advisory under a post from President Donald Trump that included the unfounded claim that his opponents were trying to “steal the election.” Followers of Trump shared the post 26,000 times as he made his Facebook account a key part of his arsenal in raising doubts about the outcome of U.S. elections. Months earlier, dozens of Facebook employees from the company’s Civic Integrity unit, which is in charge of determining how the company handles election-related content, had anticipated and tried to prevent the spread of such posts. Shocked into action by an incendiary Trump post targeting Black Lives Matter protesters, they proposed stricter penalties for politicians and public figures on Facebook, such as blocking the ability to comment or easily share posts if they ran afoul of the company’s policies...While Facebook officials have touted the company’s preparedness in combating election interference this year, researchers have criticized its labeling approach as too mild to meaningfully slow the proliferation of misinformation on its service. Members of the campaign for President-elect Joseph Biden have critiqued Facebook for failing to stop the spread of posts by Trump and his allies seeking to undermine the election process. “The labels they went with are pretty weak and unobtrusive, and fundamentally fail to reckon with the key role that Facebook plays in spreading and amplifying disinformation,” said Evelyn Douek, a lecturer at Harvard Law School who studies the content moderation practices of tech companies.

Omavi Shukur left Little Rock, Ark., in 2005, for New York City and Columbia University seeking an answer to a question: Why do people in many Black communities like his have to fight “to the point of exhaustion” simply to get a fair shot at life?

One of the most iconic brands in financial television returns for today's issues and today's world. This week's Wall Street Week features David Westin's interviews with Bank of America COO Tom Montag, Bank of America Vice Chairman Anne Finucane, Former Federal Reserve Board Governor Dan Tarullo and Nobel Laureate Paul Romer. The conversations highlight President-elect Biden's economic priorities, the consequences of the surge in Covid-19 cases, and the role of ESG during a pandemic. Willett Advisors Chairman & CEO Steve Rattner and Former Treasury Secretary Lawrence H. Summers analyze whether markets are getting ahead of themselves on vaccine optimism.

Lawyers nationwide are demanding that their colleagues stop representing President Trump since he is falsely claiming widespread voter fraud and such unfounded allegations are in violation of his duties under the US Constitution. The Nov. 10 open letter is signed by more than 1,100 lawyers, many of them in with Massachusetts ties, including retired Supreme Judicial Court Justice Fernande RV Duffly, former federal judge Nancy Gertner, and Pamela Bergman, president of the Massachusetts Women’s Political Caucus. "There has never been a more important time for America’s lawyers to acknowledge the importance of these solemn commitments, and to demand accountability for those lawyers and federal officials who do not live up to their oaths and ethical obligations,'' the open letter demands. The legal profession has ethical rules that bar attorneys from filing lawsuits when they know the claim being made is false or untrue, according to Lawyers Defending American Democracy, the group leading the campaign. "We join in this letter to demand that public office holders and lawyers uphold their oath to defend the Constitution,'' the letter states. “To do that, they must cease making false or unfounded claims and implementing actions – including those actions taken by Attorney General William Barr on November 9 – that undermine our presidential election process.”

Coronavirus cases have surged to their highest levels yet, but conservative state legislators across the U.S. are fighting to limit governors’ ability to impose public health restrictions — and have succeeded in two states with rising caseloads in the heaviest hit region of the country. In public health emergencies, governors have broad powers to impose quarantines and other actions to stop the spread of disease. As emergency orders have stretched on for months, state lawmakers around the country have objected to what they say is governors’ unprecedented use of power for such an extended period of time. The efforts to limit their power have targeted governors across party lines, but those that have had the most success have been in states with Democratic governors and Republican-controlled legislatures...With more states imposing restrictions again to combat rapidly rising case rates, the number of challenges is only likely to increase. “As time has gone on, there's been Covid fatigue, and that’s resulted in more legal challenges,” said James Tierney, a Harvard Law School lecturer and director of its attorney general clinic. “Unfortunately, a lot of public health issues have become political and not scientific in the last three or four months.”

When Betsy DeVos was confirmed as Secretary of Education nearly four years ago, Vice President Mike Pence broke a tie in the Senate, making her nomination for the post one of the most controversial in recent memory. Her history of philanthropy and advocacy promoting initiatives that provide public funding for education outside of the traditional public-school system — like charter schools and voucher programs — made her a lightening rod in education policy circles. Her tenure has been no different. Over the past four years the Department, under her direction, has made changes to policies on topics ranging from racial disparity in K-12 school discipline to the process by which scammed students can be made whole when their colleges are accused of fraud... “That’s really not going to be enough just to reverse course on what the Trump administration has been up to, for our clients,” said Toby Merrill, who represents former for-profit college students in litigation as the director of Harvard Law School’s Project on Predatory Lending. “No administration has ever really wrapped its arms around the wrong that’s been done by this industry and the harm that people have carried for so, so long,” she said. Merrill said she’d like to see a Biden administration wipe out these borrowers’ invalid debt as well as eliminate “the ability of these companies to create the debt in the first place.” Biden promised on the campaign trail to make it more difficult, though not impossible, for for-profit colleges to access the federal financial-aid program. Merrill said she’s optimistic that Senator Kamala Harris’ history with the sector — she obtained a $1.1 billion settlement with Corinthian Colleges, a defunct for-profit chain, over claims the school misled students about job placement rates and other metrics — will translate into an aggressive approach. “She knows how bad it was and how much people need relief,” Merrill said of Harris. “I’m hopeful that she will be especially well-positioned to make sure that people get that relief.”

During President Donald Trump's four years in office, his administration has sparred in court with state attorneys general over nearly every issue. Among the topics: the "travel ban"; the Deferred Action for Childhood Arrivals program, or DACA; family separations at the U.S.-Mexico border; the "national emergency" declaration to build the border wall; international student visas; student loan protections; clean water rules; transgender health care protections; automobile emissions; a citizenship question on the 2020 census; U.S. Postal Service operations; and Obamacare. If it seems like a lot, it is. A review of litigation against federal agencies during the Trump administration shows that state attorneys general have filed 138 multistate lawsuits since he took office...James Tierney, a Democratic former attorney general of Maine who is now a lecturer at Harvard Law School, said Trump has largely himself to blame for the flurry of lawsuits after he used executive orders and other directives to push his agenda, often bypassing Congress and administrative laws. "Depending on what President Biden does — and more importantly, how he does it — GOP AGs can be expected to sue," Tierney said. "How often and to what degree of success will depend on what President Biden actually does."

The Education Department (ED) has created a new website for borrowers who are seeking debt relief after being defrauded by a college. But one expert involved in litigating these borrower defense claims said the changes were mostly cosmetic. “Throughout this administration, what we've seen is the substitution of process for substance,” Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School, told Yahoo Finance. “None of the actions that the department has undertaken has been providing relief to borrowers,” she added, “and that's the only thing that they need. I think this is a distraction — this is purposeful distraction.” The new website attempts to improve the borrower defense process, which involves former students of allegedly predatory schools seeking loan forgiveness...Overall, Merrill stressed, the website doesn’t address the root of the problem. “Right now our borrower defense mechanism doesn't work at all, so I still think people should have started there,” she said. “It's hardly the form of the application that is like the source of my concern.”

The National Viral Hepatitis Roundtable (NVHR) and the Center for Health Law and Policy Innovation (CHLPI) of Harvard Law School today published a new analysis of state policies and laws that are harming hepatitis C virus (HCV) elimination efforts in the United States. The research shows that policies which mandate periods of sobriety prior to hepatitis C treatment and laws that restrict harm reduction services perpetuate stigma associated with drug and alcohol use and discourage people who use drugs or alcohol from seeking HCV testing and treatment...Hepatitis C infection rates continue rising in the United States despite the availability of highly effective curative treatment, driven primarily by injection drug use as a result of the opioid crisis. Amid this concerning trend, many state Medicaid programs have enacted harmful policies that require severe liver damage or periods of sobriety prior to treatment, or require specialists to treat hepatitis C. Such barriers are often illegal and go against current medical standards of care. “Limiting hepatitis C treatment access through sobriety requirements not only perpetuates stigma and goes against medical standards of care, but may also violate the Americans with Disabilities Act which prohibits discrimination against persons with disabilities in public services, including people with substance use disorders who are seeking health care,” said Robert Greenwald, a clinical professor of law and the faculty director of the Center for Health Law and Policy Innovation at Harvard Law School. “Ending these discriminatory practices is both a health justice issue and a public health issue. In order to eliminate hepatitis C in the U.S., we need to make treatment available to all who need it and remove burdensome barriers to care.”

Kenneth Starr, former Whitewater independent counsel, and Laurence Tribe, constitutional law professor at Harvard, weigh in on 'Fox News Sunday.'

An op-ed by Laurence Tribe: Imagine raiding Versailles with a herd of bulls. You probably won’t make it past the gates, and you certainly won’t wind up King of France, but you would irreparably trample the gardens and might well erode the foundation. That’s more or less how I view Donald Trump’s current assault on the election. Let’s begin with the obvious: Joe Biden will become the 46th president of the United States on 20 January 2021. As Benjamin Wittes recently explained, “It is exceedingly difficult to steal an election in the United States.” I encourage interested readers to look through his analysis, which I believe is spot on. I’ll quickly sum up the legal arguments. Trump’s lawsuits will not award him the presidency. To win, Mr Trump must prove systemic fraud, with illegal votes in the tens of thousands. There is no evidence of that so far, and evidence of widespread fraud is unlikely to arise in an election that Trump’s own Department of Homeland Security just labeled “the most secure in American history”. His lawsuits are, as one commentator aptly put it, “too absurd to be even dignified as frivolous”. As of this writing, he is 0-12 in court, a batting average that would shame even a little league baseball player. His lawsuits are also mathematically useless. He has focused on 2,000 ballots in Michigan where, at the time of this writing, Biden leads by 148,645 votes. He’s challenging a whopping 180 ballots in Arizona, a state recently called for Biden with a lead of 11,434. Georgia’s short-lived lawsuit sought to shave 53 ballots off a 14,057-vote lead. Elsewhere, the math is much the same.