Media Mentions

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

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

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

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

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

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

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

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

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

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

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

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

President Donald Trump has declared that he has the “absolute right” to issue a pardon to himself. Yet the law is much murkier than his confidence suggests. No president has attempted to pardon himself while in office, so if Trump tries to do so in the next six weeks, he will be venturing into legally untested territory without clear guidance from the Constitution or from judges. Legal experts are divided on an inherently ambiguous question that was left vague by the Founding Fathers and has never had to be definitively resolved in court...The question of whether Trump will do it, though, is as unsettled as the question of whether he can. A self-pardon, which Trump has openly mused about, would on one hand be fitting as a final norm-shattering act in a presidency defined by them. But it might also be at odds with his oft-stated conviction that he has done nothing wrong for which he needs to be absolved...Mark Tushnet, a retired Harvard Law School professor, said he doubted any court would overturn a presidential self-pardon, though he said such an act would constitute an abuse of power that would have been abhorrent to the framers of the Constitution. “For them, I believe it would have been unthinkable that the American people would ever elect the kind of person who would pardon himself. Which is why they didn’t say anything about the possibility,” Tushnet said. Since presidential pardons don't cover state crimes, it would seem unlikely a self-pardon would extend in any event to the state investigations Trump is facing.

Sen. Minority Leader Chuck Schumer continues to put pressureon President-elect Joe Biden to forgive up to $50,000 in student debt per borrower on the first day of his presidency...More than 40 million Americans have a lot riding on the answer of whether or not a president can forgive student debt without Congress. Borrowers could see their debts reduced or eliminated overnight if the president was able to act without legislation. Getting Congress to agree to forgive the loans, on the other hand, is not likely to occur any time soon, if ever. For now, it’s also an open question if 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 so far. A spokesman for the president-elect wouldn’t say if Biden has taken a stance on whether or not he can forgive student debt without Congress, through he pointed to remarks Biden made at a recent press conference after he was asked if he would take executive action to cancel the loans.

Early worries about whether U.S. internet infrastructure could accommodate an unprecedented surge in usage as COVID-19 restrictions pushed tens of millions of Americans to working and learning from home have, for the most part, proven unfounded. However, that new pandemic-induced dependence on robust internet connectivity has shone a light on the stark inequities of broadband access and helped spur a new focus on addressing a long-standing question — why isn’t internet service a public utility with the same support, disbursement and regulation afforded to other basic necessities like water, electricity and telephone service? ... Harvard University researcher Susan Crawford has been investigating internet access issues for years and taken a close look at how U.S. broadband service has evolved as well as alternative approaches by countries in Europe and Asia that have embraced the development of high-speed internet access as a basic — and critical — public utility. Crawford says the models that work best leverage public/private partnerships to get internet infrastructure like fiber optic cable running to every household and business, then opening access to those lines via lease with private sector service providers. The systems, she said, bear a lot of resemblance to how domestic electricity and telephone systems were built out by private entities but backed by public financing and oversight.

It was a month before Donald J. Trump’s inauguration, and one of his aides had a delicate question: Wasn’t there going to be a backlash when it became known that the inauguration had spent donors’ money at Mr. Trump’s hotel in Washington, even though other places would cost much less or even be free? ... As Mr. Trump’s presidency comes to a close, expenditures like those are receiving renewed legal scrutiny in the form of a civil case being pursued by the attorney general for the District of Columbia. At the heart of the case is a question — whether Mr. Trump and his family have profited from his public role, sometimes at the expense of taxpayers, competitors and donors — that has been a persistent theme of his tenure in the White House...Lawsuits brought by nonprofit groups and attorneys general in Washington and Maryland claiming that Mr. Trump had violated the so-called emoluments clause of the Constitution were never resolved during his term and now face potential dismissal once he is out of power. “It is more than just frustrating,” said Laurence H. Tribe, a constitutional law professor at Harvard, who has been involved in the emoluments litigation. “The most serious questions about the abuse of presidential power and the use of the presidency as a center of personal gain and profit remain unresolved. The wheels of justice clearly ground more slowly than some would have hoped.”

For the second time since March, Prisoners’ Legal Services (PLS) is arguing against the Massachusetts Department of Correction (DOC) in the uphill battle to depopulate state prisons. Neither DOC officials nor Gov. Charlie Baker has put forth a plan to decarcerate despite litigation, legislation efforts, and soaring COVID cases in correctional populations. By Dec. 2, per a Special Master’s Report commissioned to fairly assess the situation from all angles, Mass prisons, jails, and houses of correction had four times the rate of infection as the general population of the Commonwealth. While the number of COVID cases in the state has risen to 3.6% of the general population, a total of 1,864 out of 13,049 prisoners—a whopping 14%—have been infected with coronavirus since March. (As of this writing, in the houses of correction and jails it is actually 1 in 5.5 prisoners who have been infected.)... While there have been some releases due to a court order from the CPCS lawsuit, the majority of releases were those awaiting trial and not sentenced prisoners. “The remedy is not working,” said Katherine Naples-Mitchell, staff attorney at the Charles Hamilton Houston Institute for Race and Justice. She added, “Jail populations are actually higher now than the second week of April. Real reductions in county populations have been from prisoners wrapping county sentences.” In other words, people are getting out because they’ve done their time—not because the state is acting prudently.

Rudy Giuliani. Ivanka Trump. Joseph Maldonado-Passage, AKA Joe Exotic, star of the Netflix series Tiger King. And, just possibly, Donald Trump himself. These are some of the candidates mentioned as prospects for official pardons before the US president leaves office on 20 January. Such a spree would test the political and constitutional limits of a centuries-old power that echoed the British monarchy. It would also be revelatory of the potential legal jeopardy of Trump and his allies once they depart the White House...Many legal experts, however, contend that a self-pardon would be unconstitutional because it violates the basic principle that nobody should be the judge in his or her own case. Laurence Tribe, a constitutional law professor at Harvard University, argued in an email that it “flies in the face of the universally agreed proposition that the pardon power cannot be used as a license to commit future crimes”. He added: “The basic problem is that, if a president were able to pardon himself, he could commit crimes with impunity throughout his presidency. He could ransack the treasury, bribe the chief justice to overrule Roe v Wade, and shoot someone on Fifth Avenue knowing he could never be punished.” The nation’s founders saw the pardon power as a way to show the quality of mercy. While Trump might undermine their credibility in the short term, experts say he is not the first president to be accused of abusing pardons and is unlikely to do lasting constitutional damage.

With miles of barbed wire and electric fencing along its border and open government hostility to migrants, Hungary's borders aren't always the friendliest place for foreigners. That's during normal times. Amid the pandemic, Hungary has shut its doors to almost everyone, even its European neighbors. Unless, they've had COVID-19. It's not the place you'd expect to find such a novel exception to otherwise tough entry rules. The policy, which came into force in early September, opens the door to visitors who can provide evidence that they've recovered from COVID-19 -- proof of both a positive and negative test in the past six months...The World Health Organization (WHO) advised against immunity passports in April. "There is currently no evidence that people who have recovered from COVID-19 and have antibodies are protected from a second infection," read its scientific brief. On Thursday, the WHO confirmed it has not changed its position, but, Regional Advisor Dr. Siddhartha Sankar Datta said it was looking to help countries implement electronic vaccination certificates. Other experts have also raised concerns about immunity passports. "I think the worst-case scenario is that you see a spike in cases that happens because people are incentivized to try to get COVID to demonstrate immunity," Carmel Shachar, a Harvard University bioethics and health law expert, tells CNN. "So, all of a sudden, you'd see people not wearing masks, not respecting social distancing, because they want to get COVID. Especially if more and more countries adopted a similar scheme."

President Donald Trump has a bill on his desk that could kick several Chinese companies off U.S. stock exchanges and inflame an already strained relationship between Washington and Beijing. The Holding Foreign Companies Accountable Act would force companies to give up their listings on Wall Street if they refuse to open their books to U.S. accounting regulators. It could also bar them from raising money from American investors. While the law technically applies to companies from any country, it is mainly targeting Chinese corporations...If the law is passed, it could affect companies like Alibaba, oil giant PetroChina, JD.com and more than 200 other names. Chinese companies listed on U.S. exchanges have a combined market capitalization of about $2.2 trillion, so a mass delisting would mean major movements of capital. Something that experts say could backfire on American investors. “If the bill becomes law, I think these companies are going to leave our exchanges and they’re going to leave on prices that are not going to make American investors better off,” said Jesse Fried, a professor of law at the Harvard Law School, in an interview on CNBC’s “Street Signs Asia.” ...A company like Alibaba leaving the United States also appeals to Beijing, because it reduces the role of U.S. regulators. “Having these companies trade in the United States gives rise to frictions with the Chinese authorities, because the U.S. authorities want to impose their rules on these companies,” Fried explained.

Imagine a robot trained to think, respond, and behave using you as a model. Now imagine it assuming one of your roles in life, at home or perhaps at work. Would you trust it to do the right thing in a morally fraught situation? That’s a question worth pondering as artificial intelligence increasingly becomes part of our everyday lives, from helping us navigate city streets to selecting a movie or song we might enjoy — services that have gotten more use in this era of social distancing. It’s playing an even larger cultural role with its use in systems for elections, policing, and health care...Jonathan Zittrain, Berkman Klein Center director and Harvard Law School’s George Bemis Professor of International Law, said it’s important that we think hard about whether and where AI’s adoption might be a good thing and, if so, how best to proceed. Zittrain said that AI’s spread is different from prior waves of technology because AI shifts the decision-making away from humans and toward machines and their programmers. And, where technologies like the internet were developed largely in the open by government and academia, the frontiers of AI are being pushed forward largely by private corporations, which shield the business secrets of how their technologies operate. The effort to understand AI’s place in society and its impact on all of our lives — not to mention whether and how it should be regulated — will take input from all areas of society, Zittrain said. “It’s almost a social-cultural question, and we have to recognize that, with the issues involved, it’s everybody’s responsibility to think it through,” Zittrain said.