Media Mentions

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.

Supreme Court Justice Samuel A. Alito Jr. took aim at legal interpretations of a historic Massachusetts lawsuit, appeared to mock Cambridge, and slammed two New England senators as he offered an unusually blunt critique of coronavirus lockdowns and other measures in a speech to a conservative legal group. Alito’s Thursday address to the Federalist Society, which held its annual convention virtually due to the pandemic, overstepped the usual boundaries for a Supreme Court jurist and could undermine the public’s faith in the court, legal observers said. “This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School. “I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again. Alito criticized the use of a 1905 Supreme Court decision in a Massachusetts case to justify COVID-19 restrictions — while taking a dig at Cambridge...Laurence H. Tribe, a Harvard Law School professor emeritus, said Alito’s remarks were “extremely unusual” and that it was “injudicious and highly inappropriate” for a Supreme Court justice to comment “on issues that are bound to return to the Court, like same-sex marriage and religious exemptions and restrictions on personal liberty designed to control the spread of COVID-19.” “He seriously compromised the integrity and independence of his role as a Supreme Court Justice by offering hints and intimations and sometimes all but explicit forecasts of how he would approach matters not yet briefed and argued before him in the context of a specific case or controversy,” Tribe said in an e-mail.

Harvard Law professor Laurence Tribe spoke with MSNBC’s Joy Reid Friday about the lawyers defending President Donald J. Trump, saying they have “an ethical obligation” and should be “ashamed” for “frivolous” lawsuits of this kind. Tribe said, “They are supposed to be officers of the court. There’s an ethical obligation. It’s true you can defend somebody who might be guilty, but helping someone undermine democracy and delegitimize the transfer of power, something we have done ever since John Adams handed the presidency over to Thomas Jefferson, is way beyond that. I think any lawyer worthy of the name would be ashamed to be involved in a frivolous lawsuits of this kind.” Tribe has an impressive 50 years under his belt at Harvard Law and has argued 36 cases before the U.S. Supreme Court. He is co-founder of the American Constitution Society.

Decades of Supreme Court Precedent says colleges can use affirmative action in admissions—but the court's new composition could change all that. In this episode, Harvard Law School professor Jeannie Suk Gersen breaks down everything you need to know about the lawsuit alleging that Harvard discriminates against Asian Americans in admissions. She explains why the stakes of this case may be different from what you think, and why the question of whether Harvard discriminates against Asian Americans can be treated separately from affirmative action. And she speaks so poignantly about her own experience as an Asian American in elite institutions: "At some point in my past," she says, "I might've been one of the students who might've been rated lower" by the "personal" score used in Harvard's admissions process. This is a moving, wide-ranging conversation that goes deeper than most analyses of the admissions lawsuit.

On Thursday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe suggested that President Donald Trump could face criminal charges if he reveals national security secrets after leaving office. “One former White House official said Trump asked about self-pardons, as well as pardons for his family,” said anchor Erin Burnett. “Could he do that, pardon himself and anyone he wanted to for any unknown criminal acts found subsequently before he leaves office?” “He can certainly pardon his family, but pardoning himself would be an extraordinary and unprecedented act,” said Tribe. “Hundreds of years ago, Lord Cook in England established a principle that has been accepted in American law for centuries, and that is you cannot be a judge in your own case. If he tries to pardon himself, I think in the end that pardon would not hold up. But predicting what a court would do with such an unprecedented exercise of power is hard.” “One thing we do know, he certainly cannot pardon himself vis-a-vis New York prosecution, either by Letitia James on behalf of the State of New York or by Cyrus Vance on behalf of Manhattan,” said Tribe. “State and local crimes, serious crimes, often punishable by years in prison, are not subject to the president’s pardon power. Another thing, we know he can’t pardon himself from the possible espionage he might commit after leaving office when he leaks secrets for his own benefit, classified information from his own government. He’s not good at keeping silent. Those future crimes are beyond the reach of the pardon power, vis-a-vis both the state and federal government.”

What can President-Elect Biden do to reverse course on the environment and climate change? What can he accomplish with a Republican-controlled US Senate, pending results of two runoff elections in Georgia? What can he pursue in the executive branch? And how will the left wing of the Democratic Party play into his plans? For our podcast, Trump on Earth, Reid Frazier unpacks all of this with Jody Freeman, law professor and director of the Environmental and Energy Law Program at Harvard Law School. Before that she worked for the Obama EPA, where she helped write fuel efficiency regulations for cars, which were later rolled back under President Trump.

A majority of voters in five states, both red and blue, passed ballot measures that legalized marijuana on Election Day. This show of support at the polls will put more pressure on other states and the federal government to update its drug policies, according to advocates and experts. "This indicates that people are frustrated with the outdated drug policies from the 1970s," Mason Marks, a law professor at Gonzaga University and a fellow in residence at Harvard Law School's Petrie-Flom Center for Health Law Policy, told ABC News. In some cases, like New York, elected officials are publicly sounding the call for major policy changes. In ballot measures passed in New Jersey, South Dakota, Montana and Arizona, residents over 21 will be able to purchase and consume marijuana for recreational purposes. South Dakotan voters also passed a separate measure that legalized medicinal marijuana in the state. Mississippi will also allow adults to use medical marijuana after voters passed an initiative on Election Day. State legislatures and health departments in the five states will come up with the specific regulations for recreational marijuana next year.

Twitter said on Thursday that it had labeled as disputed 300,000 tweets related to the presidential election, or 0.2 percent of the total on the subject, even as some users continued sharing misleading information about the outcome. The disclosure made Twitter the first major social media platform to publicly evaluate its performance during the 2020 election. Its revelations followed intense criticism by President Trump and other Republicans, who have said Twitter’s fact-checking efforts silenced conservative voices...The high-profile changes showed that social media companies are still evolving their content moderation policies and that more changes could come. Misinformation researchers praised Twitter for its transparency but said more data was needed to determine how content moderation should adapt in future elections. “Nothing about the design of these platforms is natural, inevitable or immutable. Everything is up for grabs,” said Evelyn Douek, a lecturer at Harvard Law School who focuses on online speech. “This was the first really big experiment in content moderation outside of the ‘take down or leave up’ paradigm of content moderation,” she added. “I think that’s the future of content moderation. These early results are promising for that kind of avenue. They don’t need to completely censor things in order to stop the spread and add context.” Facebook, which initially said it would not fact-check political figures, also added several labels to Mr. Trump’s posts on its platform. Although Twitter was more aggressive, other social platforms may copy its approach to labeling disputed content, Ms. Douek said.

An op-ed by Cass Sunstein: Facing urgent national challenges and probably a Republican-controlled Senate, President-elect Joe Biden will need to use executive actions to respond to problems such as Covid-19, economic recovery, racial equity and climate change. To understand how that works, it is essential to ask: What are executive actions, anyway? How do they happen? How fast, and how slow? The answers speak volumes about the operation of U.S. government, particularly but not only when Congress is gridlocked. Early in any new presidency, some of the most important initiatives begin with an executive order or presidential memorandum, by which the president issues a formal, public directive to those who work for him — typically members of his cabinet. For example, he might direct the secretary of Health and Human Services to take specific actions to control the pandemic, or he might order the Environmental Protection Agency to come up with a plan to reduce greenhouse-gas emissions from power plants. Orders of this kind get a lot of attention, but they merely start a process. It usually works like this: After a period of weeks or months, a department or agency comes up with a proposed rule, often consisting of hundreds of pages. The proposed rule outlines, and tries to justify, regulatory requirements that the agency plans to impose on the private sector, or perhaps on state and local governments. It might also contain alternatives — for example, more stringent and less stringent options.

An op-ed by Noah Feldman: President Donald Trump’s refusal to concede defeat and allow an orderly transition doesn’t violate our Constitution, as his Republican allies have pointed out. But it does violate unwritten norms that have attained a quasi-constitutional status in American elections. His defiance is dangerous. Even without violating the letter of the law, Trump’s resistance has the capacity to undercut the democratic legitimacy of this election, and the election process as a whole. From the standpoint of the Constitution (the 12th Amendment, if you’re following along at home), the transition to a new president doesn’t officially begin until the states send their slates of electors to be opened in the presence of the vice president and both houses of Congress. Once those electoral college votes are counted, the candidate who gets a majority “shall be the president.” This election cycle, the electors are supposed to vote in their states on December 14, 2020. Congress is supposed to meet in joint session to count the votes on January 6, 2021. In fact, the modern practice of peacefully transferring power operates quite differently. Concession is usually triggered by a custom that appears nowhere in the Constitution, namely the decision desks of the TV networks and newspapers calling the election for the candidate who amasses an unbeatable lead. That custom has developed into a quasi-constitutional norm, one that has been repeatedly followed for many election cycles. There is even a federal statute that arguably relies upon this norm without expressly mentioning it. The law that governs transitions says that the transition begins when the director of the General Services Administration “ascertains” the “apparent” winner of the election and issues a letter saying so, triggering the statute’s transition provisions. The statute doesn’t give the director of the GSA any guidance on how to ascertain the apparent winner, perhaps because the drafters of the statute — and those who have applied it — think it’s obvious: The winner is apparent by the consensus of the networks and newspapers, and the subsequent concession of the loser.

For Sarah Sadlier ’22, studying history isn’t merely about understanding the past but about the insight it lends the present and guidance it provides for the future—especially when it comes to law.