Media Mentions

An article by Rachael Hanna ‘21 and Natassia Velez ‘22: On Sept. 4, the Trump administration released a policy directive detailing the United States’s cybersecurity principles for “space systems.” Emphasizing the importance of space systems for communication, science, economic prosperity, and national security, the directive highlights the importance of integrating cybersecurity throughout the development and life cycle of space systems. Specifically, the directive calls for agencies to “foster practices within Government space operations and across the commercial space industry that protect space assets and their supporting infrastructure” and defend against cyber threats. As a policy document, the directive does not create any new legal rights or obligations in the context of cybersecurity practices in space. But the directive’s language, in combination with the U.S. cybersecurity policy often referred to as “defending forward,” raises important questions concerning the United States’s existing legal obligations in space under international law. More specifically, the directive’s centering of cybersecurity in space creates tension with the international obligation to use space to advance international peace and security for the benefit of all countries. The assertive posture of defending forward may conflict with international space law in the policy’s current iteration.

An op-ed by Laurence H. Tribe and Michael C. Dorf: Balancing public health against the right to free exercise of religion poses a difficult challenge amid the COVID-19 pandemic. Accordingly, when cases from Californiaand Nevada reached the Supreme Court earlier this year, the justices deferred to the judgment of their governors, who are, after all, accountable to the people. But those cases were decided by narrow 5-4 margins before Justice Ruth Bader Ginsburg died in September. The court changed its tune late Wednesday night, when her replacement — Amy Coney Barrett — and the four earlier dissenters formed a new 5-4 conservative majority that invalidated restrictions on worship services in hot zones designated by New York Gov. Andrew Cuomo. The ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, brought by Catholic and Orthodox Jewish congregations, was especially notable because it was unnecessary. As Chief Justice John Roberts explained in his dissent, by the time the court ruled, the New York houses of worship were no longer “subject to any fixed numerical restrictions.” The opinion, then, did nothing more than admonish New York to stop doing something it had already stopped doing. Even if the case wasn’t technically moot, there was no reason for the highest court in the land to intervene, without an oral argument or deliberation, to grant extraordinary relief.

Criminal defense attorneys are criticizing how the Massachusetts Department of Correction handles medical parole cases and reports prisoner deaths from COVID-19 following several outbreaks of the virus inside state correctional facilities over the past six weeks. The attorneys pointed to the deaths of two prisoners who were granted medical parole only after they were hospitalized with COVID-19. In both cases, the men died less than a day after they were granted medical parole...Even without releases, advocates said the state could be more aggressive in preventing the spread of the virus in its correctional facilities. They pointed to an agreement reached this month with the correction officers' union to regularly test officers, but noted it does not apply to county jails. The correction officers' union did not respond to requests for comment. "I think that this is definitely a failure on the part of the state," said Katy Naples-Mitchell, a legal scholar at Harvard Law School. "The fact that these outbreaks are happening was avoidable had there been regular surveillance testing of staff, which are the primary vectors of bringing an infection into a largely closed environment. So the idea that there wasn't testing happening on a regular basis and that it took eight months for the DOC to get the union to negotiate on that is really disappointing, frankly, and an abdication of duty to people who are in the state's custody."

An op-ed by Cass Sunstein: The Supreme Court’s 5-4 decision on Wednesday night, striking down New York State restrictions on the number of people who can attend religious services during the coronavirus pandemic, is being taken as a signal of the emergence of a newly aggressive conservative majority. It’s easy to see why. The majority in the religion case included the court’s newest member, Justice Amy Coney Barrett, alongside the  most conservative of her colleagues: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. The dissenters included Chief Justice John Roberts, also conservative but more moderate in his voting patterns — who has been the swing vote in divided decisions for the last year. Notwithstanding the public reaction, the decision is hardly pathbreaking, and it doesn’t signal much at all. As a technical matter, it’s close to a yawner. If it is to be taken a signal, it should be of something more specific: the existence of a majority that will be highly protective of the rights of religious believers. The core of the case was a claim of discrimination against churches and synagogues. New York Governor Andrew Cuomo had issued an order stating that in certain pandemic-infected areas, deemed “red zones,” only 10 people could attend religious services. In less dangerous areas, deemed “orange zones,” the cap was 25.

An article by Anoush Baghdassarian ‘22 and Cameron Pope: On Nov. 9, the leaders of Russia, Azerbaijan and Armenia signed a cease-fire agreement to terminate the fighting in Nagorno-Karabakh, a mountainous region at the center of a lengthy “frozen conflict” between Azerbaijan and Armenia. The agreement—signed after 44 days of fighting—introduces a number of novel terms that have not previously been included in any cease-fire, all considered successes for Azerbaijan and Russia, but not necessarily for Armenia. The conflict in the Nagorno-Karabakh Region (NKR), which Armenians call Artsakh, has been ongoing since 1988, when the region’s majority ethnic Armenian population expressed its desire to leave the Azerbaijani Soviet Socialist Republic just as the Soviet Union was collapsing. The resultant war ended in 1994, but as neither Azerbaijan nor any other country recognized the independence of the new Nagorno-Karabakh Republic, the region’s status became mired in contention among Azerbaijan, NKR and Armenia. The cease-fire agreement that ended the 1990s war was known as the Bishkek Protocol. It had no expiration date and was meant to remain in force until there was a final agreement. Yet no such agreement has emerged—and no new cease-fire protocol had been established until the one agreed to this month.

A video and social media post claim that Australian Prime Minister Scott Morrison “helped” US president-elect Joe Biden violate the Logan Act when he made a congratulatory phone call to the Democratic leader. The video was posted to the Facebook page of Riccardo Bosi, a former Army special forces lieutenant-colonel and serial election candidate, who unsuccessfully contested the 2019 federal election for the Australian Conservatives and the 2020 Eden Monaro by-election as an independent. In October, he ran for the Sunshine Coast seat of Nicklin in the Queensland state election, finishing second last of the six candidates. The Faceook post includes a caption which reads, “SCOMO HELPED BIDEN VIOLATE THE LOGAN ACT” and a video with the same title as its cover image...Laurence Tribe, a professor of constitutional law at Harvard Law School, agreed, telling AAP FactCheck in an email the suggestion Mr Biden violated the Logan Act by speaking with Mr Morrison was without foundation. “(The Act) is in no respect applicable to this kind of entirely routine interchange between a president-elect and a foreign prime minister or head of state,” he said. “It is such a vague and nebulous restriction on discussions by private American citizens with foreign leaders that most constitutional scholars (including me) believe its application would be barred by the first amendment to our constitution.” It’s not the first time a US political figure has been accused of breaching the Logan Act due to their interactions with Australian representatives.

The Boston Bar Association has urged the Massachusetts Supreme Judicial Court to hold an upcoming hearing in a criminal case in-person, arguing virtual hearings can cause unconstitutional disparities for low-income communities and people of color. In a 40-page, Nov. 20 amicus brief, the bar argued that virtual hearings unfairly impact minorities and low-income households, compounding hardships they already face in light of the COVID-19 pandemic and systemic racial injustices. "Ensuring that defendants and communities of color have full and equal access to our courts and receive the protection of their fundamental constitutional rights is critical to our racial justice work, particularly during a global pandemic when they and their loved ones are specifically at heightened risk of death," the brief says. The bar filed its amicus brief in Vazquez Diaz's appeal of a trial judge's ruling rejecting his request that a hearing on evidence suppression be held in-person rather than online...Representatives for the district attorney's office and counsel for Diaz didn't immediately respond Wednesday to requests for comment. The Boston Bar is represented by Katharine Naples-Mitchell of the Charles Hamilton Houston Institute for Race and Justice, Harvard Law School, Chauncey B. Wood of Wood + Nathanson LLP and Meredith Shih of Harvard Law School.

Every corporation is unique. It follows that governance arrangements should be tailored to suit. Yet many shareholders, especially indexers, roundly condemn certain governance practices as if one size fits all. Three corporate practices illustrate this: combining the roles of chairman and chief executive; staggered director terms, and classes of stock with different voting rights. Each is derided for valid abstract reasons, but all persist because they can be suitable at particular companies...Why might indexers and other critics universally condemn corporate practices that quality shareholders accept and that may enhance a company’s performance? Different business models may explain: indexers address the market as a whole while quality shareholders focus on specific companies. Indexers prescribe policies expected to benefit the overall market, on average, not particular businesses. The size and reach of indexers — commanding around one-third of public equity — give them outsized influence, and a wide critical following. But they have small stewardship staffs and minuscule budgets to address particular companies, according to research led by Harvard Law School’s Lucian Bebchuk — no more than 45 people covering  well more than 3,000 U.S. companies.

Jack Bogle championed index funds as a way to democratize investments. Now the three biggest index fund managers pose a new threat, a former Federal Reserve staffer argues...According to the paper, the stock holdings of BlackRock, Vanguard, and State Street give them “outsized influence” in corporate elections and reward anti-competitive behavior among companies in a given sector...Even though BlackRock and the other firms don’t own the underlying assets that they manage, they still control many activities, including voting shares, Steele said. According to the paper, BlackRock, Vanguard, and State Street manage over $15 trillion in global assets, which is equal to approximately three-quarters of the U.S. gross domestic product. The asset management industry has also grown more concentrated over the last decade, with these three firms attracting 82 percent of all investor money over the time period. BlackRock, State Street, and Vanguard also control between 73 percent and 80 percent of the exchange-traded fund market, according to Steele. That dominance means that when combined, the “Big Three” are the largest shareholder of 88 percent of firms in the S&P 500. This concentrated ownership has several potential consequences, according to Steele. One example is the rise in stock buybacks. Research from Lucian A. Bebchuk and Scott Hirst has found that companies with a high amount of index fund ownership have increased stock buybacks more rapidly than peers with more diverse ownership.

President Trump’s Environmental Protection Agency was rushing to complete one of its last regulatory priorities, aiming to obstruct the creation of air- and water-pollution controls far into the future, when a senior career scientist moved to hobble it. Thomas Sinks directed the E.P.A.’s science advisory office and later managed the agency’s rules and data around research that involved people. Before his retirement in September, he decided to issue a blistering official opinion that the pending rule — which would require the agency to ignore or downgrade any medical research that does not expose its raw data — will compromise American public health...Last month, the agency finalized a rule that creates a lengthy new legal process to overturn or withdraw certain policy directives known as “guidance documents,” which give federal agencies direction on the specifics of how to enforce laws. Such guidance documents can give an administration some license to interpret laws in ways that advance their policy agenda. For example, the E.P.A. during the Trump administration has published a guidance document that allows oil and gas companies to release flares from their wells for up to 15 minutes at a time before regulations apply — a process that releases methane, a powerful planet-warming greenhouse gas...Jody Freeman, a professor of environmental law at Harvard and a former adviser to the Obama administration, called the rule a “little I.E.D.,” referring to an improvised explosive device, or roadside bomb, aimed at slowing a Biden administration’s plans to overturn Mr. Trump’s rules. “Shenanigans like these are what awaits the Biden team,” she said.

Lawmakers next week are likely to force Chinese companies with shares traded on American exchanges to finally comply with audit-oversight rules—or leave U.S. markets altogether. House leaders plan to consider a measure on Wednesday that would force Chinese firms such as Alibaba Group Holding Ltd. either to make the transition to getting an annual audit that is reviewed by U.S. regulators, or remove the shares from trading in the U.S. The House plans to vote under rules that limit debate and require a two-thirds majority for passage, according to an online notice posted Friday. The legislation, if it becomes law, would give Chinese companies and their auditors three years to comply with inspection requirements before they could be kicked off the New York Stock Exchange or Nasdaq Stock Market...Other Chinese companies may go private instead. The mechanics of that process would be relatively simple, with investors getting cash for their shares. But management teams could buy out American stockholders at a low share price, benefiting insiders at the expense of outside investors. “They could use the threat of an impending delisting to take the company private at a low price,” said Jesse Fried, a law professor at Harvard University. “Then this law would have made U.S. investors worse off.”

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.