Media Mentions

Last week, millions of Americans turned to cable news to watch election returns pour in. Some refreshed their Twitter feeds to get the latest tallies. And nearly 300,000 others kept an eye on the YouTube channel of 29-year-old Millie Weaver, a former correspondent for the conspiracy theory website Infowars, who offered right-wing analysis to her followers in a live-stream that carried on for almost seven hours the day after the election. At times, her pro-Trump commentary veered into something else: misinformation. First she aired footage of a man pulling a red wagon into a ballot-counting center in Detroit. That image has been spread widely online by conservatives who contend, without evidence, that it is proof of illegal ballot stuffing. It was, in fact, a TV cameraman pulling his equipment. Then Weaver raised questions with a guest about the integrity of the election, stoking the false theme that the election was rife with fraud...Experts say the streams often occupy an ambiguous gray zone, where it's difficult for the platform's automated detection systems or human moderators to quickly flag this type of content. "That's in part because it's harder to search video content as opposed to text," said Evelyn Douek, a Harvard Law School lecturer who studies the different ways platforms approach content moderation. "It's a lot harder to scrutinize what's going on, and it's a lot more time consuming." ... "Taking a platform-by-platform view of these things is inherently limited," Douek, the Harvard Law School lecturer, said. "What one individual platform can do in the whole of the Internet ecosystem will always be somewhat limited." Yet, she said, platforms have the responsibility "to think about exactly what they can do to help mitigate the harm that their platform can cause."

President Trump’s defiant rhetoric and unprecedented refusal to accept his election defeat have Democrats and the American public feeling increasingly rattled, but there is little reason to believe his actions will change the results, legal and political experts said Tuesday. ... “If it succeeded, it would be a coup,” said Charles Fried, a Harvard Law professor and former US solicitor general in the Reagan administration. “There’s no indication it will succeed, or that anybody expects it to succeed.”

An article by Jeannie Suk Gersen: Among the “firsts” associated with the 2020 election, the most norm-shattering of all will be if the candidate who lost never concedes to the one who won. After the major news outlets called the election for Joe Biden on Saturday, Donald Trump switched from insisting, “I won this election, by a lot,” to claiming that his loss was due to election fraud. Trump’s conduct seemingly has not fazed President-elect Biden as he proceeds into the transition; at the least, it was not a surprise, since Trump spent months making ominous and ungrounded predictions of voter fraud. There is, however, a limit to what Biden’s team can do, particularly in national security, if the Trump Administration holds up a transfer of power, as the head of the General Services Administration has done thus far by not formally recognizing the transition.

The street parties and protests across the nation ignited by the presidential election results have quieted, for now. As the dust settles, scholars and analysts…

President-elect Joseph R. Biden Jr. will use the next four years to try to restore the environmental policies that his predecessor has methodically blown up, but the damage done by the greenhouse gas pollution unleashed by President Trump’s rollbacks may prove to be one of the most profound legacies of his single term. Most of Mr. Trump’s environmental policies, which erased or loosened nearly 100 rules and regulations on pollution in the air, water and atmosphere, can be reversed, though not immediately. Pollutants like industrial soot and chemicals can have lasting health effects, especially in minority communities where they are often concentrated. But air quality and water clarity can be restored once emissions are put back under control. That is not true for the global climate. Greenhouse pollution accumulates in the atmosphere, so the heat-trapping gases emitted as a result of loosened regulations will remain for decades, regardless of changes in policy. “Historically, there is always a pendulum to swing back and forth between Democratic and Republican administrations on the environment, and, theoretically, the environment can recover,” said Jody Freeman, a professor of environmental law at Harvard and a former adviser to the Obama administration. “You can put rules back in place that clean up the air and water. But climate change doesn’t work like that.” Moreover, Mr. Trump’s rollbacks of emissions policies have come at a critical moment: Over the past four years, the global level of greenhouse gases in the atmosphere crossed a long-feared threshold of atmospheric concentration. Now, many of the most damaging effects of climate change, including rising sea levels, deadlier storms, and more devastating heat, droughts and wildfires, are irreversible.

The question has lingered around the edges of the pop-culture ascendancy of Alexander Hamilton: Did the 10-dollar founding father, celebrated in the musical “Hamilton” as a “revolutionary manumission abolitionist,” actually own slaves? Some biographers have gingerly addressed the matter over the years, often in footnotes or passing references. But a new research paper released by the Schuyler Mansion State Historic Site in Albany, N.Y., offers the most ringing case yet. In the paper, titled “‘As Odious and Immoral a Thing’: Alexander Hamilton’s Hidden History as an Enslaver,” Jessie Serfilippi, a historical interpreter at the mansion, examines letters, account books and other documents. Her conclusion — about Hamilton, and what she suggests is wishful thinking on the part of many of his modern-day admirers — is blunt...The evidence cited in the paper, which was quietly published online last month, is not entirely new. But Ms. Serfilippi’s forceful case has caught the eye of historians, particularly those who have questioned what they see as his inflated antislavery credentials. Annette Gordon-Reed, a professor of history and law at Harvard and the author of “The Hemingses of Monticello,” called the paper “fascinating” and the argument plausible. “It just shows that the founders were nearly all implicated in slavery in some way,” she said.

As people and markets around the world brace for Joe Biden’s move into the White House, a key factor is what the veteran Democratic politician could accomplish without having to work with Congress. Biden is widely expected to make use of executive orders that affect health care , the energy sector and other areas. “Biden will presumably be at least as active in issuing Executive Orders as was President Obama, or President Trump for that matter,” said James Lucier, an analyst and managing director at Capital Alpha Partners, in a note. Below are some preliminary expectations around such orders or related executive actions...Biden is expected to push in some way for some forgiveness of student loans, having called during his White House campaign for the cancellation of a minimum of $10,000 in such loans per borrower while also proposing other programs that target student debt. Attorneys from Harvard Law School’s Project on Predatory Student Lending argued in a September letter that the executive branch has the authority to cancel student debt.

On Monday, cable outlet One America News Network posted two videos to its YouTube account titled “Trump won.” The clips echoed several others telling viewers, falsely, that U.S. President Donald Trump was re-elected and that the vote was marred by fraud. YouTube added a label noting that the Associated Press called the election for Joe Biden. But the world’s largest online video service didn’t block or remove the content. That approach differs from Twitter Inc., which has hidden conspiratorial election posts behind warnings. A few months ago, YouTube released a detailed policy prohibiting manipulated media and voter suppression, but left one gap: Expressing views on the election is OK. The result has been an onslaught of videos aiming to undermine the legitimacy of the election, according to online media and political researchers. Some of this material has spread on other social networks. And several clips, like the two OANN videos on Monday, ran advertisements, profiting from a Google policy that lets content framed as news reporting or talk shows cash in. “YouTube saw the inevitable writing on the wall that its platform would be used to spread false claims of election victory and it shrugged,” said Evelyn Douek, a lecturer at Harvard Law School who studies content moderation and the regulation of online speech. One YouTube video claiming evidence of voter fraud in Michigan has more than five million views. Another posted by Trump was selectively edited to appear as if Biden is endorsing voter fraud. That has over 1.6 million views. One of the OANN clips was watched 142,000 times in seven hours on Monday, while the other got 92,000 hits in that time.

With a new occupant in the White House, the National Park Service may get something it never had under President Trump: a permanent director. Sources say at least three candidates are now on the short list to lead the agency: Cassius Cash, the superintendent of Great Smoky Mountains National Park in Tennessee and North Carolina and a 10-year agency veteran; Christine Lehnertz, president and CEO of the Golden Gate National Parks Conservancy in San Francisco and the former superintendent of Grand Canyon National Park in Arizona; and Mike Reynolds, director of the Interior Department's Lower Colorado Basin, Upper Colorado Basin and Arkansas-Rio Grande-Texas-Gulf regions... "The last four years have been brutal for our national parks and public lands," said Theresa Pierno, president and CEO of the advocacy group National Parks Conservation Association. She said running the agency without a permanent director created "instability and damage that could take years to reverse," with the Interior Department emphasizing development of public lands over the protection of parks. A Harvard University study echoed that assessment last month, calling the absence of a permanent director "the largest challenge facing NPS." Among other things, the study said NPS staff had been "disempowered," while "the level of centralized decision making at NPS is unprecedented," with Interior Secretary David Bernhardt making decisions that typically would be delegated to the agency's director (Greenwire, Oct. 21). "The presence of acting directors has decreased accountability and steered the Service away from its core mission of preserving the parks," said the study, conducted by the Harvard Law School Environmental and Energy Law Program.

Uber, Lyft, DoorDash, and California’s other gig companies emerged victorious Tuesday night, as voters endorsed a ballot measure that allows them to continue to treat hundreds of thousands of workers as independent contractors. Fifty-eight percent of the state’s voters approved Proposition 22, which repudiated a recent state labor law that would have required the companies to hire their drivers and delivery people as employees—and pay them traditional benefits, including health care, sick pay, and workers’ compensation. With a $200 million campaign, the companies pulled off what once seemed unlikely: reversing the work of state lawmakers and courts, which had sided against Uber and its peers...The urgency made sense: The gig companies believed that treating their workers as employees would disrupt the disruptors, driving their already precarious business models over the brink. One Barclays analysis estimated that shifting Uber and Lyft drivers to employee status in California would cost the companies hundreds of millions of dollars annually. The companies had threatened to leave California, or at least temporarily shut down service in the state, if they had lost...The gig companies, which made their names by exploiting legal loopholes and gray areas, have found another way to win. “California is, in some sense, a bellwether for the gig economy,” says Benjamin Sachs, a professor of labor and industry at Harvard Law School. The companies’ willingness to spend big in the state, he says, proves how important the labor fight is to them, and how much they have to lose...Labor advocates say that reordering the country’s labor regime may prove a slippery slope. Companies are more likely to “downgrade” employees to quasi-independent contractor status than “upgrade” independent contractors, says Sachs, the law professor. That would make it harder for American workers to access benefits and protections.

A new report released Monday documents the use of incendiary weapons and their horrific human cost on civilians over the past decade in conflict zones like Afghanistan, the Gaza Strip and Syria, with Human Rights Watch and Harvard’s Human Rights Clinic calling on nations to close loopholes in international law and stigmatize their use. The report says the weapons, which may include white phosphorus, inflict excruciating burns and can lead to infection, shock and organ failure. Often, medics also do not have adequate resources in war zones to assist victims with serious burns. White phosphorus burns until it’s gone. It can burn right down to the bone, leaving victims in chronic pain and with permanent disabilities and scarring. The report by Human Rights Watch and Harvard Law School’s International Human Rights Clinic notes that burn victims sometimes need to be intubated in order for intensive wounds to be treated and dead skin scraped away. They may also require multiple surgeries and intense physical therapy to regain mobility...The report said the ongoing human suffering caused by incendiary weapons underscores the need for stronger international law. It urged countries to take concrete action at next year’s conference on the Convention on Conventional Weapons to condemn and continue to raise awareness about the use and harm of such weapons, as well as to block loopholes in existing protocols.

The street parties and protests across the nation ignited on Saturday by the presidential election results have quieted, for now. President Trump and the vast majority of Republican political leaders have steadfastly refused to concede, with some vowing to pursue congressional investigations of the balloting and a notable few like, former President George W. Bush and Utah Sen. Mitt Romney, offering their congratulations to President-elect Joe Biden and Vice President-elect Kamala Harris...The dust is beginning to settle, but much is still unclear. The Gazette turns once again to scholars and analysts across in the University to get their views of what happened and what comes next...Sandy Levinson: “The election of Joe Biden certainly means that a majority of the electorate has had it with Donald Trump. That being said, one should acknowledge that Biden’s ‘coattails’ were minimal. Although we won’t know for sure about control of the Senate until the two Georgia runoffs in January, it would be near-miraculous if Georgia fired both of its incumbent Republican senators in favor of distinctly more liberal Democrats. So we should assume that once again we will be faced with a ‘divided government,’ where Republicans in the Senate will be able to stymie most legislative programs passed by the House and supported by the president. And Republicans will have the power to do that only because of the scandalously undemocratic (and not only un-Democratic) reality of the U.S. Senate, which allocates equal voting power to Wyoming and California, Vermont and Texas. President Biden, like his immediate predecessors, will draw on all of his purported executive powers. That will not be good for the country inasmuch as it will only further confirm the reality of a truly dysfunctional Congress and exaggerated hopes placed in presidents who, even if they are not authoritarians, feel compelled to push the envelope of what might be described as near-dictatorial powers.“

An op-ed by Noah Feldman: If the Supreme Court takes on a case connected to the outcome of the presidential election, Justice Amy Coney Barrett will face the most important decision of her career: not how to vote, but whether to participate at all. The situation is unprecedented. Never before has a president explicitly stated that he is choosing a justice so that she will be able to adjudicate that president’s own immediate re-election. And while there are arguments both for and against recusal, the argument for recusal is stronger. The one Supreme Court case that is most directly relevant is 2009’s Caperton v. A.T. Massey Coal Co. It involved a West Virginia judge who was elected after receiving $3 million in campaign contributions from the chairman of a company appealing a $50 million penalty. The chairman knew whichever judge won the election would review his appeal. The Supreme Court held, in an opinion by Justice Anthony Kennedy, that the due process clause of the Constitution was violated when the judge chose not to recuse himself and participated in the appeal that reversed the $50 million verdict against the company. The vote was 5 to 4, with Kennedy joining the court’s (then) four liberals to form a majority. In a fascinating op-ed in the Washington Post last month, retired conservative judge J. Michael Luttig — who didn’t care for the outcome in the Caperton decision — nonetheless argued that the decision likely obligates Barrett to recuse herself from participating in a 2020 election decision involving President Donald Trump. He emphasized the crucial sentence from Kennedy’s opinion: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the other parties’ consent — a man chooses the judge in his own cause.”

Since Election Day, President Trump has stayed on the attack, repeatedly accusing Democrats of seeking to steal the election and calling the continued counting of votes a “fraud on the American public.” He has said he would appeal to the Supreme Court to intervene, and promised to carry on the fight. Now, with Joe Biden declared the next president, Trump has a choice: Will he concede, making the hard and humiliating choice all his predecessors as presidential also-rans have had to make? Or will he continue to wage a scorched-earth battle in an effort to overturn the results or to poison the well as Biden takes over? ... No matter what he hears, Trump is facing legal peril if he leaves office and loses his immunity from prosecution as a sitting president. Trump is facing two investigations by law enforcement officials in New York. Manhattan District Attorney Cyrus Vance Jr. and New York’s attorney general, Letitia James, have been independently investigating potential crimes in Trump’s business practices before he became president...Jack Goldsmith, a professor at Harvard Law School, said it’s unclear whether a president could pardon himself. “The question is entirely novel,” he said. “The Justice Department has suggested in passing, without analysis, that a president cannot self-pardon. Scholars are all over the map.” But presidential pardons don’t extend to charges emerging from state investigations. If Trump were to try to escape charges by fleeing to another country, it’s unclear what would happen. Trump has mused about leaving the country if he loses. “Extradition treaties will determine this,” Goldsmith said. As the president continues to discredit the election results, the future of the nation’s democracy could hang in the balance.

President Trump will leave the White House with a massive social media following that he could use to shape the nation’s politics throughout his successor’s administration and beyond. When Trump started his first campaign in 2015, he had just 3 million Twitter followers and 10 million on Facebook. But should Democrat Joe Biden’s apparent electoral edge withstand legal challenge, Trump would leave office with a singularly powerful online megaphone — at least 88 million followers on Twitter, 31 million on Facebook and 23 million on Instagram — that will give him a unique ability to communicate his thoughts to legions of supporters accustomed to hearing from him more than three-dozen times a day...One critical test of whether Trump’s megaphone will be as potent after he leaves office will be whether he can forge the same close alliance with Fox News that he enjoyed during his presidency, said Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at Harvard University and an expert on the news media and misinformation. Fox pundits have consistently repeated White House talking points, as has the news side of Fox, Benkler said, giving significant credence to and amplification of Trump’s messages. Another issue will be whether Trump tries to capitalize financially on his audience in the months ahead, Benkler said. He suggested Trump could go into competition with Fox if he doesn’t regain the same level of support following a bruising election in which the president and his allies criticized the network for its polling and its election-week declarations about which states had been won by Biden. So far, he said, the news network has shown “restraint,” in its coverage of the Trump campaign’s allegations of voter fraud and attempts by Democrats to steal the election. “But I’m not sure it will hold,” he said.

Years of anger and anxiety over Donald Trump’s presidency were released in a giant nationwide rush of elation Saturday as throngs of supporters celebrated in the streets of Boston, Washington, and other cities within moments of Joe Biden being declared the winner of the 2020 election. Dancing down the sidewalks of Harlem, fireworks in Atlanta, champagne toasts in Louisville. In the nation’s capital, a defeated Trump was greeted on his return from a morning of golfing by a throng of jeering protesters outside the White House, while a brass band entertained a jubilant crowd nearby. Even for those who were not ardent Biden supporters, the day brought a sense of relief. After four excruciating days of the presidency hanging on the slow drip of returns in just a few cities, Americans had closure on one of the great questions facing a torn nation...Mazelle Etessami ‘22, a second-year student at Harvard Law School, said Biden’s victory felt like “a weight off your shoulders,” even as she wondered what would come of the country’s deep partisan divides. “We have a lot of work to do across the aisle, but I think this is a moment for democracy,” Etessami, 24, said on Saturday afternoon as she weaved through a lively crowd assembled in Harvard Square. “Today we celebrate, and tomorrow we get to work.”

Joe Biden was projected Saturday to become the nation’s next president, according to the Associated Press, after campaigning on an ambitious domestic agenda he hopes will improve voters’ finances and invigorate an economy battered by the coronavirus pandemic. Tax hikes for the rich, broadened health care coverage and student loan forgiveness were some of the projects on candidate Biden’s to-do list...Even before the pandemic, Americans’ $1.6 trillion in student loan debt was a financial crisis that chipped away at borrowers’ capacity to buy homes, start families or pursue the careers of their choice. Biden is proposing to cancel $10,000 of a borrower’s student loans; the debt forgiveness would erase loan balances for 30% of borrowers, according to one analysis. Biden would also overhaul a debt forgiveness program that, critics say, has helped too few public sector workers. Biden also says families making less than $125,000 shouldn’t have to pay for their child’s education at a public college. This would apply to approximately 80% of families, his campaign has estimated. Though the plans for free public college would require new laws, Sens. Chuck Schumer and Elizabeth Warren have said the president can cancel debt by himself. Some education law experts say the same. Lawyers at Harvard Law School’s Project on Predatory Student Lending have previously said the president’s Secretary of Education has “specific and unrestricted authority to create and to cancel or modify debt owed under federal student loan programs in the Higher Education Act (HEA) itself.”

Joe Biden won the presidency promising to bring Americans together. But now his administration is sure to come under pressure from some Democrats to risk exacerbating divisions by investigating and prosecuting Donald Trump. It would be a turnabout of the “Lock him up!” chants regularly directed at Biden by Trump’s supporters at campaign rallies. Although Biden has said that prosecuting a former president would be a “very unusual thing and probably not very good for democracy,” he also vowed in an NPR interview in August that he wouldn’t “interfere with the Justice Department’s judgment of whether or not they think they should pursue the prosecution of anyone that they think has violated the law.” ... Mark Tushnet, a Harvard law professor, said some potential charges against Trump would probably be seen as far more political than others. The Biden administration should go after only the most “egregious” crimes, Tushnet said, rather than pursue charges based on Mueller’s findings, which the president’s supporters have dismissed as a hoax. “If there is classical bribery, that should be prosecuted,” he said...Some liberal academics and former government officials have proposed another alternative to a federal criminal investigation: a bipartisan fact-finding panel, often described as a “truth and reconciliation committee,” that would focus on documenting any abuses that may have taken place during the Trump administration rather than recommending charges. Tushnet, the Harvard law professor, said he sees such a panel as a middle path between prosecuting Trump and granting him impunity -- a way to hold the previous administration accountable without creating a partisan firestorm. “We need to get back to normal,” Tushnet said. “The question is, ‘What’s the best way?’”

The EPA and Interior Department under President-elect Joe Biden will have a range of tools at their disposal to start undoing President Donald Trump’s deregulatory agenda on the environment, according to former agency officials, lawyers, and environmentalists. Many of the administration’s more ambitious environmental goals, such as reviving regulations on climate pollutants from power plants and automobiles, will take longer to change or put into place. But most observers expect Biden’s team to get working immediately after inauguration on smaller measures, such as the “secret science” rule that would block the EPA from using scientific research that isn’t or can’t be made public. “They’ll be starting right out of the gate,” predicted Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. But some who support Trump’s rollbacks warn that Biden will pay for being too ambitious in efforts to reverse them... One of the fastest and easiest actions the environmental agencies can take is to strike down Trump-era guidance that the Biden team disagrees with, said Sam Sankar, senior vice president for programs at Earthjustice. “That can be done with the stroke of a pen,” Sankar said. Dozens of such guidance documents are now on the books. Among the candidates for immediate rescission is an October memo from the Environmental Protection Agency, arguing that the Clean Air Act gives states flexibility to administer air pollution requirements and saying some exemptions are appropriate, Sankar said.

Harvard Law professor Michael Klarman is a legal historian and scholar of constitutional law. He clerked for Ruth Bader Ginsburg when she was a judge on the D.C. Circuit Court of Appeals. Klarman’s book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality received the 2005 Bancroft Prize in History. Will the new 6-3 Republican Supreme Court intervene to help Donald Trump steal what now looks to be a convincing Biden win? And will Democrats be able to put America back on course to reclaim its democracy? Harvard Law professor Michael Klarman provides reassurance on both counts. Robert Kuttner: “Do you think the Supreme Court has enough of a regard for its own credibility and enough respect for basic democratic norms that even this Court will be hesitant to overturn the results of the 2020 election, assuming Biden does win Michigan, Pennsylvania, and Wisconsin? When will we have some sense of whether the Court is unwilling to do Trump’s political bidding by overturning the election results?” Michael Klarman: “The Court isn’t going to overturn the election result. The election isn’t close enough for any of Trump’s litigation to affect the result. What the president wants is to stop the counting of votes in Pennsylvania (while demanding that vote counting continues in Arizona!). But there is no legal controversy about the votes in Pennsylvania. They were received before election night. There is no question they should count. The Pennsylvania legislature should have changed the law to allow them to be counted before Election Day, as many other states permit, but Republicans in the legislature would not allow this, perhaps because they wanted to support Trump’s fraudulent claim that votes counted after election night are fraudulent.”

Federal Energy Regulatory Commission member Neil Chatterjee defended his actions on clean energy and climate after President Donald Trump on Nov. 5 unexpectedly replaced him as chair of the independent agency. Chatterjee said he also sees an outsized role for FERC, and himself, if former Vice President Joe Biden wins the presidency and Republicans maintain control of the U.S. Senate...FERC issued a news release late Nov. 5 announcing that Chatterjee had been replaced as chair by fellow Commissioner James Danly, who in various dissents and statements has conveyed a narrow view of the quasi-judicial regulator's authority. Chatterjee has promised to stay on through the end of his term at the end of June 2021 or potentially longer if the Senate is unable to confirm a replacement before the next U.S. Congress is sworn in. Chatterjee speculated that the decision to hand Danly the gavel may have been related to a draft policy statement issued by FERC last month outlining the commission's legal authority to approve wholesale power market rules that accommodate state-determined carbon pricing. Danly penned a partial dissent to the policy statement, arguing it was issued prematurely...In the meantime, observers should not expect Danly to initiate proactive rulemakings in the same way FERC did for energy storage and distributed energy resources following the 2016 election, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. "Danly has explained that he is not a proactive regulator, so I don't expect him to launch any agenda," Peskoe said in a Nov. 6 email.