Media Mentions

On Tuesday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe suggested that lame-duck President Donald Trump could be guilty of a federal crime if he continues to refuse the peaceful transition of power following his election loss. “There’s nothing that Pompeo or Trump or any of those guys can do to prevent Biden from becoming the president,” said Tribe. “On January 20, at high noon, he becomes the president of the United States when he takes the oath. And any Trump administration official, including the president himself, who pretends to have power under the executive branch after that point is committing a federal felony, punishable by imprisonment, in addition to any other crimes they might have committed. It’s as though he’s going to build an alternative White House in Mar-a-Lago, and he will pretend to be president even though he’s not.” “When you look through all the cases they’re mounting, every challenge out there, do you see any legal challenge that the president could pursue right now that would change the outcome of this election?” asked anchor Erin Burnett. “Absolutely not,” said Tribe. “And to say that he hasn’t succeeded is an understatement. He’s 0 for 12 in the cases that I’ve counted. I’ve read the complaints. There’s nothing there.”

Even as the pandemic roils the American economy, compensation for US chief executives has largely held up as many corporations adjust their criteria for performance pay and bonuses during the crisis. Only about one-fifth Russell 3000 index of publicly traded firms have reduced CEO pay, according to data compiled by the Conference Board with the consultancies Semler Brossy and Esgauge. Corporate boards have opted for generous packages for executives at the top even when, in many cases, firms have been laying off workers. For CEOs, "it's heads I win, tails I don't lose," said Jesse Fried, a Harvard Law School professor specializing in executive compensation. Fried said boards of directors appear to be willing to make adjustments to compensation criteria when it results in a boost for CEOs, but rarely will cut pay. "Sometimes, there are good reasons for such adjustments: the need to retain talent, or better motivate managers," he said. "But there is a problem here: when firms experience positive shocks that have nothing to do with the CEO's own performance, the compensation committee never adjusts CEO pay downwards so that the CEO is not overcompensated."

The Supreme Court heard arguments today on a Republican challenge to the Affordable Care Act. Harvard Law School professor Alan Jenkins joins CBSN's Tanya Rivero to discuss the implications of the case.

One rare political arena with bipartisan support is the movement to break up and curb the power of tech giants, particularly those operating in search and social media. Early reports indicate that President-elect Joe Biden is aware of this, and that his upcoming policy agenda may reflect that. Some of these reports come directly from the Biden campaign itself, with former head of press Bill Russo retweeting "Hell yes" to a Sacha Baron Cohen post that depicted outgoing President Donald Trump alongside Facebook CEO Mark Zuckerberg paired with the caption, "One down, one to go." There are also reports from reputable outlets like The New York Times, which on Tuesday revealed that Biden is not only expected to pursue an antitrust lawsuit filed against Google last month, but may pursue additional antitrust cases against Amazon, Apple and Facebook...One key difference between Trump and Biden is that the current president has made it clear he views his policies toward Big Tech as ways of inflicting punishment. In May, after threatening to "close down" social media platforms that fact-check him, Harvard Law professor Laurence Tribe told Salon by email that "the threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment." He added, "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

President Donald Trump's campaign launched its broadest challenge yet to the results of the election that appears destined to push him from office, accusing Pennsylvania officials of running a "two-tiered” voting system – in-person and mail – that violates the U.S. Constitution. Legal experts said the case has little chance of succeeding, for a variety of reasons: Courts are wary of invalidating legally cast ballots. The issues raised, even if true, don't represent a constitutional question. And mail voting, used in many states, is both common and constitutional...Laurence Tribe, a constitutional law expert at Harvard Law School, said the lawsuit "fails to allege facts sufficient to support a conclusion that the relief sought would alter the election's result – a key difference between this complaint and the submission leading the Supreme Court to intervene in the state recount in Bush v. Gore" in 2000. As of Monday, Biden led in Pennsylvania by more than 45,000 votes – greater than Trump’s lead when he won Pennsylvania in 2016.

At a frenetic and freewheeling rally in Macon, Ga., in mid-October, with less than three weeks to go before the election, President Trump turned introspective. He reflected on what sets him apart from every other president in American history: his refusal to be presidential...One of the things Trump has forced presidential scholars to realize “is the extent to which shamelessness in a president is really empowering,” says Jack Goldsmith, a former Justice Department official in the George W. Bush administration who teaches at Harvard Law School. The current presidency also reveals “the extent to which the whole system before Trump was built on a basic assumption about a range of reasonableness among presidents, a range of willingness to play within the system, a range of at least a modicum of understanding of political and normative constraints.” Goldsmith and others argue that Trump’s steamrolling of norms could do lasting damage to both the stature of the presidency and the institutions of democracy if reforms aren’t devised to bolster the fragile tissue of these shared understandings... “When you pound the Justice Department and pound the intelligence community as being corrupt, incompetent, making up stories about what they do, it’s enormously demoralizing for those institutions,” says Jack Goldsmith, the former Justice Department official. “It reduces the legitimacy of those institutions in the eyes of the country.”

An op-ed by Noah Feldman: The Supreme Court signaled today during oral argument that it won’t be striking down the whole Affordable Care Act as the Trump administration has asked it to do. The swing justices did seem especially eager to make their views clear — and to dispel any public fear that the court’s ever-deepening conservative majority would do now what it failed to do back in 2012 and undo “Obamacare” altogether. That’s probably good news for Republicans, given that the 10-year old ACA is politically popular. And it’s especially good news for Republicans facing runoff elections in Georgia, which will determine control over the U.S. Senate. It will now be much harder for Democrats to argue that Georgians should give both seats to the Democrats to protect or, if necessary, reenact the ACA. In truth, the possibility that the court might listen to the legal arguments of the Trump Department of Justice was always far-fetched. So it isn’t totally fair to quote Mr. Dooley’s famous observation that the Supreme Court follows the election returns. The issue before the court is a little arcane, but it can be summed up with only a little bit of oversimplification. When Chief Justice John Roberts upheld the individual mandate provision of the ACA in 2012, he said the mandate was a tax that must be paid by anyone who didn’t buy healthcare insurance in the private market or on a public exchange. Subsequently, Congress eliminated the penalty entirely. In effect, there is now no longer any penalty for not buying health insurance.

An op-ed by Cass Sunstein: President-elect Joe Biden’s transition team has announced its four top priorities, and no surprise, climate change is among them. For that problem, the social cost of carbon is the straw that stirs the drink. It’s the most important number you’ve never heard of. That number is designed to reflect the monetary equivalent of the damage done by a ton of carbon emissions. For that reason, it is fundamental to decisions about the stringency of coming regulations from the executive branch — governing the fuel economy of cars and trucks, emissions limits for power plants, energy efficiency requirements for appliances and much more. If the social cost of carbon is set high, we’re going to see aggressive regulations, significantly denting the risk of climate change. If the social cost of carbon is set low — well, not so much. In 2009, the administration of President Barack Obama said that the social cost of carbon would be around $52 in 2020. In 2017, President Donald Trump and his appointees slashed that figure to somewhere between $1 and $6. The gap, surprisingly, wasn’t about politics, at least not in any simple sense.

Just as the country cannot seem to agree on whether to wear masks or stay six feet apart, there are also disagreements bubbling up over how to celebrate Thanksgiving. To gather or not to gather? Masks or no masks? Is everyone invited or only a select few? Strong opinions can become a recipe for frustration and disappointment...For other families, however, it won’t be quite so easy to find a solution. In that case, consider it a shared challenge, where everyone’s voice matters. “Look at their underlying interests,” said Daniel L. Shapiro, an associate professor of psychology at Harvard Medical School and McLean Hospital and the author of “Negotiating the Nonnegotiable. How to Resolve Your Most Emotionally Charged Conflicts.” For example, if your relatives want to avoid masks and you don’t, are they worried about autonomy or personal liberty? Or are they exhausted by the pandemic and just want a normal family gathering without worrying about a bunch of rules? The goal is to ask questions, listen and understand where each person is coming from. What probably won’t work “is turning the issue of whether to wear a mask or not into a positional battle,” Dr. Shapiro said.

Since Joe Biden left office almost four years ago, antitrust enforcement has gone from a backwater of Democratic policymaking to a key tool for reshaping the U.S. economy. That trend is expected to continue -- and could even accelerate -- under a Joe Biden administration, according to antitrust experts and those who advised his campaign on competition policy. Biden will take office as progressives have come to see antitrust enforcement as a means for tackling the power of dominant companies and improving economic outcomes for workers. There’s mounting evidence that many industries have grown more concentrated, contributing to such economic woes as income inequality, declining business investment and stagnant wages...Biden economic adviser Ben Harris also has an interest in antitrust and how it can help workers. He is writing a book with Harvard Law School’s Sharon Block titled “Inequality and the Labor Market: the Case for Greater Competition.” It will propose reforms to labor and antitrust laws with the goal of pushing wages higher, making workplaces safer and increasing mobility. Using antitrust law to help workers is one of the policy recommendations from the unity task force, made up allies of Biden and Senator Bernie Sanders of Vermont. The document calls for antitrust enforcers to consider possible harmful effects on labor markets when evaluating mergers.

On November 7, Joe Biden was projected to become President-elect. This news alert provides a high-level review of issues to watch and changes to expect in a Biden administration...The next few years will see significant shifts in U.S. environmental and natural resource law and policy, as well as changes in political and perhaps some career personnel at the U.S. Environmental Protection Agency (EPA) and other federal agencies that establish and implement U.S. environmental regulation. The next six months look to be especially consequential, as the Trump administration seeks to finalize certain ongoing efforts while the new Biden administration identifies and implements early priorities...There are over a dozen, maybe two dozen, different executive orders and many, many guidance documents relevant to environmental policy direction. These do not have the force of law but often direct agencies to take specific actions. The Environmental Law Institute and Harvard Law School’s Environmental and Energy Law Program have produced useful references on this subject. Note that rescinding an Executive Order, which can be done immediately, does not rescind implementing actions, such as new regulations finalized in response to the Executive Order.

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.