Media Mentions

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.

A book review by Kenneth Mack: What’s wrong with the democratic experiment? As the United States faces what many believe are existential threats to its political processes, and fragile political systems around the world slip into new, technologically savvy variants of authoritarianism, many commentators say we are suffering a crisis of democracy. Some point to recent departures from bedrock norms that govern the conduct of government and the role of free speech in civic life, with campus debates over matters such as sexual harassment and unpopular speakers as examples of a new generation that has yet to learn the lessons of its forebears. Others argue that the nation’s political heritage is the problem rather than the solution, pointing to undemocratic governmental features such as the electoral college, as well as recent efforts by groups with declining electoral numbers to gerrymander legislatures, suppress Black and Latino votes, and engage in hardball politics to sustain illegitimate legislative, executive and judicial power. Ellis Cose, the eminent journalist, grapples with both explanations for our present crisis in his pithy and thought-provoking book, “The Short Life and Curious Death of Free Speech in America.” Cose contends that the death of traditional free-speech norms might in fact be a good thing, given our current challenges. That might sound like heresy coming from a veteran journalist, and Cose knows it.

Joe Biden has won the US presidential election, securing more than the 270 electoral college votes needed to win the race for the White House. Biden was projected by CNN, the Associated Press and other major news outlets, including the right leaning Fox News, as the winner of Pennsylvania on Saturday, taking his total to more than 284 electoral votes, above the threshold needed to clinch victory. But over the past few days, incumbent US President Donald Trump has repeatedly made it clear he won't consider a Biden victory legitimate...It's unlikely Trump will give Biden a congratulatory or concessionary phone call anytime soon, but what happens if he refuses to concede defeat? Following Saturday's announcement, Biden is expected to be sworn in as president at noon on 20 January 2021. At that point, Trump would become a private citizen with no authority or standing in the White House...Laurence Tribe, an American legal scholar and professor at Harvard University, said that regardless of what Trump says he will do, his "concession isn't necessary or even relevant". "The law is clear that the Joint Session of the new Congress that convenes on January 6, 2021, counts the Electoral Votes and designates the winner as the president-elect, who takes the oath as the 46th president of the United States at noon on January 20, 2021," Tribe told Middle East Eye. "Having been defeated, Trump will have no way to exercise presidential power after that point. Federal law makes it a crime for any private citizen to purport falsely to act as an executive officer. That law would apply to Trump, Pompeo, Barr, Mnuchin, DeVoss, and the entire Trump cabinet. Each member’s term ends no later than noon next January 20."

No matter the vote count, legal challenges and resistance in Washington continue to make this election historically fraught. David Remnick speaks about the state of the race with some of The New Yorker’s political thinkers: Susan B. Glasser, Evan Osnos, Jeannie Suk Gersen, and Amy Davidson Sorkin. Plus, Jill Lepore on threats to democracy in the past and how they were addressed.

The Harvard Gazette recently asked scholars and analysts across the University to reflect on lessons learned in a variety of areas from this unprecedented and…

The world cannot meet its most ambitious climate targets without eating less meat, a new study concludes. The research, published in the Science journal, looks at how various strategies involving the food system could help to reduce greenhouse gas emissions. These include a global switch to a “plant-rich” diet, reducing food waste and a move towards greater farming efficiency. Its results show that, even if fossil fuel emissions were immediately halted, some degree of dietary change will be necessary to keep global warming to below 1.5C above pre-industrial levels, which is the most optimistic target of the Paris Agreement...Coming up with policies to encourage people to sufficiently reduce their meat consumption and the wastage of food will be a “real challenge”, Dr. Clark said. Such policies could include environmental labelling on food to give consumers information about the emissions caused in the production of food, he added. The research shows the world “needs to reduce food emissions strongly and rapidly”, says Dr. Helen Harwatt, a senior research fellow at Chatham House and food and climate policy fellow at Harvard Law School, who was not involved in the study. She told The Independent: “This is especially relevant if we want to avoid going above 1.5 degrees Celsius of warming in the next decade or so. While shifting to plant-based eating patterns is the most crucial part, it’s not the only part. We need to see a meaningful inclusion of food systems in revised pledges to the Paris Agreement over the coming year.”

Two years after Missouri voters enacted a first-of-its-kind initiative intended to create “partisan fairness” in voting districts, they have changed their minds. Before the measure could be used, voters reversed key parts of it in Tuesday’s election. They opted instead to return to a method that will let commissions composed of Democratic and Republican loyalists redraw state legislative districts after census results are released. The Missouri vote broke a string of nationwide electoral victories for redistricting reform advocates and opened the potential for Missouri to experiment with another nationally unique model — one that could exclude noncitizens from the population totals used in redistricting. Some supporters of the 2018 initiative, known as Clean Missouri, asserted that voters were tricked into undercutting it by the Republican-led Legislature, which placed Amendment 3 on this year’s ballot. The amendment passed with just 51% of the vote...The Republican-backed measure also deleted a requirement to base districts on the total population tallied by the census. It instead references a Supreme Court standard of “one person, one vote.” Hegeman said the measure’s silence on “total population” could give redistricting commissioners the option of using only the citizen population. Opponents argued it also could let commissioners use only the voting-age population, which could exclude children from the count. All states currently base redistricting on total permanent population. An attempt to exclude noncitizens from Missouri’s redistricting likely would be challenged in court but may have little political effect, because Missouri has relatively few non-citizens, said Nick Stephanopoulos, a law professor at Harvard University. “It’s almost inviting unnecessary controversy,” he said, and “it opens the door to lots of legal jeopardy.”

President Donald Trump and the Republicans have launched a number of lawsuits against battleground states where vote-counting continues, although judges in two states — Georgia and Michigan — had rejected their claims by Thursday afternoon. To discuss, Jim Braude was joined by Margery Eagan of GBH News and Jeannie Suk Gersen, a professor at Harvard Law School and a contributing writer at the New Yorker magazine.

The news-style YouTube video posted Wednesday by the pro-Trump One America News network was loaded with bogus claims: “Boldly cheating” Democrats had stolen a “decisive victory” for President Trump by “tossing Republican ballots, harvesting fake ballots” and calling their “antifa buddies to cause chaos … so that Americans stop focusing on the election and start fearing for their own safety.” Officials at YouTube, the world’s largest video site, said the clip showcased “demonstrably false content that undermines trust in the democratic process,” and they blocked it from pulling in advertising money. But they kept it viewable, attaching only a small disclaimer saying election “results may not be final,” because they said it did not directly break rules against videos that “materially discourage voting.” It has been viewed more than 400,000 times...Evelyn Douek, a lecturer at Harvard Law School who researches online speech, said video sites like YouTube too often get a pass from the discussions over hate speech, conspiracy theories and viral misinformation that have defined Facebook’s and Twitter’s last few years. Part of that is technical: Videos are harder to track and more time-consuming to check than simple, searchable text. But Douek also said it’s because regulators and journalists underappreciate the major pull videos have on our information ecosystem: YouTube’s parent Google says more than a billion hours of video are watched there every day. Unlike other social media sites, Douek said, YouTube had no policy addressing false claims of victory heading into the election, and the site didn’t publish a policy banning medical misinformation about covid-19 until May 20, when more than 90,000 people in the U.S. had already died.

It was a presidential election befitting the past four years, unprecedented and contentious...The Gazette asked scholars and analysts across the University to reflect on lessons learned in a variety of areas...Tomiko Brown-Nagin: “This election crystalized American promise and American peril. Fifty-five years after passage of the Voting Rights Act and 100 years after ratification of the 19th Amendment, the fundamental right to vote — the essence of a democracy —remains ferociously contested and deeply cherished. Turnout was extraordinary! An estimated 67 percent of eligible voters cast ballots — almost 160 million people — the greatest number in more than 100 years...At the same time, we witnessed a concerted effort to suppress the vote, to intimidate voters, and to delegitimize legally cast votes.” ... Sandy Levinson: “What we learned was that the uncertainty of this election is entirely a function of the crazy way that Americans elect their president, which is through the Electoral College. This means, for example, that [President] Trump gets nine electoral votes for carrying the two Dakotas plus Wyoming, which collectively have only about 200,000 more residents than New Mexico, which contributed only five votes. What remains an ‘interesting’ question, if one is an academic, is why Americans persist with such a truly dysfunctional system of presidential election.” ... Carol Steiker: “What I have learned in this election is that despite, or perhaps because of, the anger and divisiveness that have marked this political season, it is possible to substantially shift the needle on popular political engagement. We are seeing levels of voter turnout in this election not seen in more than a century, since William Howard Taft defeated William Jennings Bryan in 1908.” ... Kenneth Mack: “What I have learned from this election so far is both a lot and a little. Historians typically look at elections as vehicles for possible political, economic, or social change. Certainly in the run-up to this year’s election we’ve seen some things change significantly. We have the first woman of color on a major party ticket (who now seems poised to become vice president), Black candidates seeming to run competitively statewide in several Southern states, and efforts to suppress minority voting of a kind we haven’t seen in decades.” ... Yochai Benkler: “ The right-wing propaganda feedback loop, anchored in Fox News and talk radio and supported by online media, has played two critical roles in the election. The first, and most foundational, is that throughout the presidency of Donald Trump it offered an alternative reality, in which the president was a strong, effective leader hounded by an alliance of Democrats who hate America and Deep State operatives bent on reversing the victory of Trump, the authentic voice of the people.”

Facebook removed a viral group falsely claiming that “Democrats are scheming to disenfranchise and nullify Republican votes” after it gained more than 350,000 members in a single day. The hasty enforcement action against a political group was unusual for Facebook and raised questions about the consistency and transparency of the company’s content moderation. The group, “Stop the Steal”, was established by a rightwing not-for-profit group, Women for America First, and run by a team of moderators and administrators that included the longtime Tea Party activist Amy Kremer. Members were encouraged to provide their email addresses to a website calling for “boots on the ground to protect the integrity of the vote”, as well as to donate money...Facebook’s hasty action on the Stop the Steal group stands in marked contrast to its handling of other domestic groups that have organized on its platform. The company dragged its heels for months before taking action against the anti-government “boogaloo” movement, which has been linked to multiple murders, and against the antisemitic conspiracy theory QAnon, which has also been linked to violence and identified as a potential domestic terrorism threat. The inconsistency and lack of transparency around Facebook’s approach to content moderation drew quick criticism from experts in the field and digital rights advocates. “It really matters that platforms should be as clear in advance about their policies and consistent in their application,” said Evelyn Douek, a lecturer at Harvard law school who studies online speech regulation. “That helps fend off charges that any decisions are politically motivated or biased, and gives us a lever to pull for accountability that isn’t purely about who can get the most public attention or generate public outrage.”