Media Mentions

An article by Jack Goldsmith: Four years after Russia’s interference in the 2016 US presidential election, more countries seem to be joining the game in the run-up to this year’s vote on November 3. In August, William Evanina, director of the US National Counterintelligence and Security Center, warned about “ongoing and potential” electoral influence efforts by Russia, China, and Iran. Last week, Director of National Intelligence John Ratcliffe and FBI Director Christopher A. Wray disclosed that Russia and Iran had obtained US voter registration data. “[T]he two countries are stepping in to try to influence the presidential election as it enters its final two weeks,” concluded the New York Times. Americans have been understandably outraged and alarmed about foreign electoral interference. But the practice is not new; in fact, the United States was for a long time its leading exponent. As Dov Levin shows in his book, Meddling in the Ballot Box, the US and the Soviet Union (and subsequently Russia) engaged in 117 covert or overt foreign electoral interventions to help or hinder candidates or parties between 1946 and 2000, with the US accounting for 81 of these cases (or 69% of the total). One of the most famous examples of US foreign electoral interference came at the dawn of the Cold War in 1948, when the CIA (in its first covert action) secretly subsidized public efforts to ensure that communist candidates were defeated in elections in Italy. It also spent millions of dollars on propaganda efforts and supporting favored Italian politicians. These and similar practices, covert and overt, continued throughout the Cold War. CIA historian David Robarge told David Shimer, author of the book Rigged, that during this period, the Agency “‘hardly ever’ altered votes directly,” which implies that it sometimes did.

An op-ed by Jeannie Suk Gersen: This week, Amy Coney Barrett begins her life-tenured appointment as the newest Supreme Court Justice. If she lives as long as did Ruth Bader Ginsburg, whom she replaces, she could serve on the Court for four decades. Barrett’s confirmation may be the last act of a Republican majority for years. In Barrett’s first days as a Justice, the election results will likely flip the party of the President and of the Senate that swiftly confirmed her. Indeed, as it became increasingly clear this fall that the Democrats would probably win the Presidency and both houses of Congress, it became all the more important for the Republicans to push through a Court confirmation while they could. As Mitch McConnell, the Senate Majority Leader, put it, on Sunday, “a lot of what we’ve done over the last four years will be undone sooner or later by the next election,” but Democrats “won’t be able to do much about this for a long time to come.” Democrats certainly can’t undo Barrett’s appointment to the Court, but with the expectation of being able to wield power soon, they have stepped up a discussion of “court-packing,” in order to undermine a 6–3 conservative majority that otherwise may be entrenched for a generation. Some have protested that court-packing would be an abuse of power, but political maneuvering over Court seats dates to the beginning of the country. When Congress established the Supreme Court, in 1789, it stipulated that the Court should have six Justices. Twelve years later, Thomas Jefferson won a bitterly fought campaign against President John Adams, and control of Congress flipped from Adams’s Federalist Party to Jefferson’s Democratic-Republicans. During the lame-duck Congress, the Federalists attempted to hold onto some power by legislating that the next Justice to retire would not be replaced, reducing the Court’s total number to five. But Jefferson and the new Congress changed the number back to six and eventually added another seat. During the following decades, the number of Justices rose to nine, and then to ten, and then came back down to nine.

After years of building political pressure for antitrust scrutiny of major tech companies, this month Congress and the US government delivered. The House Antitrust Subcommittee released a report accusing Apple, Amazon, Google, and Facebook of monopolistic behavior. The Department of Justice filed a complaint against Google alleging the company prevents consumers from sampling other search engines. The new fervor for tech antitrust has so far overlooked an equally obvious target: US broadband providers...Critics of the four companies that dominate US broadband—Verizon, Comcast, Charter Communications, and AT&T—argue that antitrust intervention has been needed for years to lower prices and widen internet access. A Microsoft study estimated last year that as many as 162.8 million Americans lack meaningful broadband, and New America’s Open Technology Institute recently found that US consumers pay, on average, more than those in Europe, Asia, or elsewhere in North America...The Institute for Local Self Reliance, which promotes community broadband projects, recently estimated from Federal Communications Commission data that some 80 million Americans can only get high-speed broadband service from one provider. “That is quite intentional on the part of cable operators,” says Susan Crawford, a professor at Harvard Law School. “These companies are extracting rent from Americans based on their monopoly positions.” ... Crawford and other industry critics say cable companies have used that freedom to erode choice through mergers, and have deployed a deep bench of lobbyists to steer lawmakers to lighten oversight and ban cities from building their own networks. Cities that have done so, like Wilson, North Carolina, generally have higher speeds at lower prices and less restrictive terms, Crawford says.

Cherise Harris noticed a change in her eldest daughter soon after the family moved a block away from a 132-year-old coal-fired power plant in Painesville, Ohio. The teen’s asthma attacks occurred more frequently, Harris said, and she started carrying an inhaler with her at all times. The family didn’t know it at the time, but Painesville’s municipal-owned plant emits nitrogen oxide and sulfur dioxide – two pollutants that the American Lung Association says inflames air passages, causing shortness of breath, chest tightness, pain and wheezing...Under President Donald Trump's rule, the Painesville plant – and nearly 200 other coal-powered electric utilities like it – can emit more such pollutants, according to the U.S. Environmental Protection Agency’s own projections. The rule is one of nearly 100 environmental rollbacks the Trump administration has pursued over the past four years to loosen regulations on everything from air and water quality to wildlife...The void of federal regulations has left some states, which are already in the midst of declining revenues due to the coronavirus pandemic, trying to maintain pre-Trump standards. “The obvious thing (the rules) do is weaken pollution standards, or weaken environmental protections," said Joseph Goffman, a former assistant administrator at the EPA and now the executive director of the Environmental and Energy Law Program at Harvard University. "As they go into effect, the public is exposed to more pollution, more environmental damage, more emissions of greenhouse gases, than they otherwise would be exposed to thanks to these rules.” “But these rules do something else," Goffman said – what the administration really wants is to undo the law...At the same time, EPA's authority has become restricted and limited for the first time in decades since landmark environmental laws were enacted, according to more than a dozen experts and former EPA staff members interviewed for this story. With the rule changes, the “interruption of progress represents a loss of time that will never be recovered," Goffman said. "Time is of the essence, in terms of dealing with climate change.”

An article by Matt Summers ‘21: The emergence of dominant companies that don't charge money to their primary consumers poses serious challenges to current antitrust law around the world. This paper suggests an approach to regulating these ‘zero-price’ companies that considers the data consumers give up to use them as the ‘price’ they pay. The ‘data as price’ model acts as a starting point to assess whether consumers are being ‘overcharged’ by Facebook in the status quo compared to how much data they would give up in a more competitive social media landscape. By surveying thousands of participants and assessing a litany of relevant behavioural considerations, this paper finds that customers are overpaying for Facebook, and that this may come at a serious welfare cost to millions of consumers. While further analysis is warranted, there is substantial cause for concern, and for critical re-evaluation of the standards generally used by antitrust regulators around the world to regulate companies such as Facebook.

The confirmation of Amy Coney Barrett as Supreme Court Justice on Tuesday cemented a 6-3 conservative majority that will shape the country for generations to come, starting with expected rulings on the Affordable Care Act, immigration, abortion, voting rights, and possibly even the results of the upcoming presidential election. To discuss, Jim Braude was joined by retired federal judge Nancy Gertner, who is now a senior lecturer at Harvard Law School.

An op-ed by Noah Feldman: The confirmation of Justice Amy Coney Barrett means that Chief Justice John Roberts is no longer the Supreme Court’s swing voter. Roberts had a good run in the seat of power, deciding cases against on the census citizenship question, the rescission of DACA, and abortion rights. Now, however, he won’t be able to determine a case’s outcome by joining the court’s liberals. With only three liberals left on the court, Roberts would have to convince another conservative to join him to produce a liberal result. The justice who provides that fifth vote becomes the swing voter. Who will now occupy that powerful role? Justice Brett Kavanaugh. Kavanaugh is much less ideological than the court’s other conservatives. He’s a conservative pragmatist; he cares about power and how it is deployed. The only way for a conservative like Kavanaugh to exercise power as the swing voter is to cast some votes that make liberals happy. Otherwise, you are just another reliable member of the conservative majority — one without much power or influence. He won’t be centrist in partisan election cases, as his opinion in Monday’s Wisconsin case shows. That was also true of Justices Anthony Kennedy and Sandra Day O’Connor, who both joined the conservatives in Bush v. Gore. But on big-ticket ideological issues, Kavanaugh could be capable of moving toward the pragmatic. He has already dropped a few tantalizing hints that he might be willing to move toward the center. Consider this past summer’s important Louisiana abortion decision, June Medical Services v. Russo. The all-powerful swing voter in that case was Roberts.

An op-ed by Cass Sunstein: “The Untouchables,” the 1987 movie about gangsters and cops in Prohibition-era Chicago, was defined by these lines, spoken by police officer Jim Malone (played by Sean Connery) to his protégé, Eliot Ness (played by Kevin Costner): He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue! That's the Chicago way. Connery’s character was speaking of Al Capone. But his lines capture something more universal. If you are in some kind of fight, your best response might be to up the ante. If your opponents know that’s what you’ll do, they might back off — in which case you win. And if they don’t back off, they’ll get hurt — in which case you also win. Has the Chicago way become the American way? You could make the argument, at least in Washington. No one should speak of literal violence. But in multiple domains, we have witnessed an escalating political arms race, transgressing longstanding norms. In 2010, Republican Senator Mitch McConnell clearly set the tone with this remarkable statement: “The single most important thing we want to achieve is for President Obama to be a one-term president.” With respect to Supreme Court appointments, Republican efforts culminated in the sprint to confirm Amy Coney Barrett — on the heels of the Senate leadership’s refusal even to allow a hearing for Judge Merrick Garland, nominated by President Barack Obama in 2016. Something much worse is suggested by President Donald Trump’s claim that Joe Biden, his opponent in the presidential race, “should've been locked up weeks ago” for unspecified crimes. If Biden is elected president, and if Democrats gain control of the Senate, both the White House and the Democratic leadership will face a crucial decision on what to do about the spiraling conflict between the parties. This decision would be important in any period. But it has special urgency in light of the public-health crisis and the serious economic downturn produced by the pandemic — in addition to Democrats’ and progressives’ high-priority issues, including climate change, health care, economic inequality and tax reform. There would be three options. In the abstract, none of them could be ruled out.

A podcast by Noah Feldman: Marc Lipsitch, a professor of epidemiology at Harvard's T.H. Chan School of Public Health, comes back to Deep Background to discuss where we are now in the fight against COVID-19.

In August last year, the US-based Business Roundtable created waves when it announced its “Statement on the Purpose of a Corporation” that formally pushed for stakeholder capitalism. Led by Jamie Dimon of JPMorgan Chase, 187 chief executive officers (CEOs) of the top American companies turned away from its decades-long belief that the main goal of a business corporation is to service its shareholders. In its statement, the Roundtable declared that “each of our stakeholders is essential [and] we commit to deliver value to all of them, for the future success of our companies, our communities and our country.” More than a year since this declaration was made, the global pandemic has caused massive job losses in the US amid the highest number of coronavirus disease 2019 (Covid-19) cases and deaths in the world. The Washington Post reported that “the economic collapse sparked by the pandemic is triggering the most unequal recession in modern US history, delivering a mild setback for those at or near the top and a Depression-like blow for those at the bottom.” Ironically, the state of stakeholder capitalism in the US is much worse today than it was before the Roundtable released its statement. Tremendous profits have been made in the stock market while millions have suffered the worst economic setback since the Global Financial Crisis. This led Professor Lucian Bebchuk of Harvard Law School to remark that “stakeholder capitalism seems mostly for show.” He contacted the companies whose CEOs signed the statement and asked who was the highest-level decision maker to approve the decision. Only one of the 48 companies who responded had board approval to sign the statement. Bebchuk further observed that the corporate governance guidelines of JPMorgan Chase stated that “the board as a whole is responsible for the oversight of management on behalf of the firm’s shareholders.”

Just months after the earthquake struck Haiti in 2010, the country was devastated by an epidemic of cholera, a bacterial disease spread through contaminated water. A group of United Nations peacekeepers was later found to be the likely source when sewage from a UN peacekeeping mission's base contaminated a major water supply. The resulting cholera epidemic killed over 10,000 Haitians. Nine months prior, a catastrophic earthquake had killed over 200,000 people and displaced at least a million. Beatrice Lindstrom, a human rights attorney who was in Haiti in 2010 to help earthquake survivors, told The World's host Marco Werman that “cholera hit when Haiti was already in a state of immense crisis.” Yet, the UN “responded by denying responsibility by refusing to engage with the evidence that was clearly available to the public eye,” Lindstrom says. She has been helping Haitians to call the United Nations to account ever since and has filed a lawsuit against the UN. It took six years of advocacy for the UN to admit it played a role in the outbreak, Lindstrom said. “I'm afraid that the way that the UN has handled this so far has amounted to an inadequate act of charity,” Lindstrom told The World. “The families who lost loved ones to cholera who continue to suffer both living in poverty and struggling with the ongoing impacts of cholera really have not received any meaningful assistance from the United Nations.” In 2016, the outgoing Secretary-General Ban Ki-moon issued an apology for the UN's role in the cholera outbreak and committed to raising $400 million in assistance to victims and their families. But so far, they've only raised 5% of this fund, Lindstrom says. The entire situation has led to a “loss of trust" between Haitians and the UN, she adds.

Ships carrying live animals are at least twice as likely to suffer a “total loss” from sinking or grounding as standard cargo vessels, the Guardian has found. In the past year alone there have been two disasters involving animals in transit. Last November, at least 14,000 sheep drowned after the Queen Hindcapsized en route to Saudi Arabia from Romania. And last month, Gulf Livestock 1, a carrier transporting almost 6,000 cattle, sank off the Japanese coast en route to China from New Zealand. Forty crew members remain missing and are presumed dead. “With the Guardian’s shocking findings … [it’s] time for an open and honest assessment of an industry that has caused one crisis after another,” said Prof Kristen Stilt, director of Harvard’s Animal Law and Policy Program, currently writing a book about the transport of live animals. “That assessment should recognise that the transport of chilled and frozen meat is the way that nearly all meat travels in commerce today. The idea of sending live animals is a holdover from a bygone era.” The global live export trade is worth nearly £16bn. For decades, campaigners have been calling on the EU to provide better protections for animals in transit, and an inquiry into the regulatory system is under way. According to Guardian analysis, between January 2010 and December 2019 five livestock vessels were recorded as lost to sinking or irrevocable grounding, killing crew and animals. The total equates to just over 3% of the estimated 150 livestock carriers above 100 gross tonnes (GT) known to operate worldwide. The 100 GT measurement is used by the shipping industry to separate smaller vessels, often owned for pleasure, from larger, more probably commercial, ones.

Four Harvard professors have criticised a recent European Commission report that proposes reforms to encourage long-term strategic thinking. The commission’s report aims to tackle short-term management of companies and make them more sustainable. The wince-inducing conclusion of four Harvard academics is that the commission report contains “deep flaws”, “mistakenly conflates” key factors, fails to engage with alternative sources of evidence and “touts cures” backed by “little evidentiary support”. Some of the cures proposed by the report, the four argue, could be “counterproductive and costly”. Amounting to a brutal comment on the complexity of sustainability, The European Commission’s Sustainable Corporate Governance Report: A Critique, illustrates the difficulty governments may encounter when attempting to legislate for long-term strategic thinking in large listed companies. The European Commission’s report, written by the business advisory firm EY, concludes that far too many company directors across the EU continue to think short term instead of acting in the long-term interests of their stakeholders. It presents evidence and then sets about detailing the remedies. The Harvard professors—Mark Roe, Holger Spamann and Jesse Fried of Harvard Law School, and Charles Wang of the university’s business school—say it’s mostly wrong. First, the academics argue, the report confuses the definition of the problem. In focusing on the issue of “short-term” business thinking, they say the report “conflates” timeframes with problems stemming from “externalities” and the “distribution” of benefits. That’s three topics probably needing different cures, they say. “For policy analysis, however, the conflation is seriously debilitating. Real world companies will often fall short on all three dimensions, but cures for one may exacerbate another,” they write. Then there is the issue of flawed evidence of short-termism.

The rapid evolution of the power grid will require the attention of one critical agency —  the Federal Energy Regulatory Commission. And observers say no matter what happens Nov. 3, the agency will have no choice but to address the industry's transition, even if it means backing away from some of its more controversial policies. Over the past four years, the commission has been accused of trampling on state efforts to move away from fossil fuels and toward zero-carbon, renewable resources...The Biden Administration has an ambitious plan to bring the grid to zero-carbon electricity by 2035, an ambitious target that exceeds the goals of utilities' mid-century decarbonization plans, already considered aggressive by some in the industry. Getting that type of plan through Congress will be difficult in itself, dependent, in part, on which party secures the majority in the Senate. "FERC's role could really hinge on whether Congress does enact any clean energy legislation, even if that energy legislation doesn't specifically task FERC with anything," said Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School's Environmental and Energy Law Program. For example, if Congress were to pass any sort of clean energy standard, FERC would be beholden to that law, regardless of who was in charge of the commission. FERC's efforts over the past few years have been centered around "leveling the playing field" for energy resources, much of it said by NGOs and others to be aimed at state clean energy policies and subsidies, which Chatterjee and fellow conservative Republican-appointed commissioners have characterized as "distorting" the markets by giving renewable or zero carbon resources an advantage over fossil fuel generators. But under a federal clean energy standard, "everybody is under the same obligation," said Peskoe. "I don't think FERC could ignore that."

It started with a tweet from a conservative media personality, accompanied by photos, claiming that more than 1000 mail-in ballots had been discovered in a dumpster in Sonoma county in California. Within hours on the morning of 25 September, a popular far-right news website ran the photos with an “exclusive” story suggesting thousands of uncounted ballots had been dumped by the county and workers had tried to cover it up. In fact, according to Sonoma county officals, the photos showed empty envelopes from the 2018 election that had been gathered for recycling. Ballots for this year’s general election had not yet been mailed. Even so, within a single day, more than 25,000 Twitter users had shared a version of the false ballot-dumping story, including Donald Trump Jr., who has 5.7 million followers...Not all election disinformation is coming from the bottom up, however. Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at Harvard, and colleagues recently examined how claims of potential fraud associated with mail-in ballots entered public discourse. The researchers analyzed more than 55,000 online news stories, 5 million tweets, and 75,000 posts on public Facebook pages between March and August. They found that most spikes in media coverage and social media activity on the topic were driven by Trump himself—either through his own hyperactive Twitter account, press briefings, or appearances on the Fox TV network. “Donald Trump has perfected the art of harnessing mass media to disseminate and reinforce his disinformation campaign,” the researchers write in a preprint posted earlier this month.

As Election 2020 looms, the next Congress will have another important decision to make - what is permitted, and what is not, when it comes to human genetic editing of the gamete (sperm and eggs). Currently, a ban on federal funding of genetic editing of the human embryo is in place. This rider, dating from 2015 and renewed annually, prohibits approval or funding to go to any research project that intentionally creates or destroys a genetically modified human embryo. This ban disallows the FDA approving any drug or other biological products created from such an experiment. However, the rider is unclear if this ban on funding and research applies to genetically modifying sperm and eggs. In a recent article in The Journal of Law, Medicine, and Ethics, Professor I. Glenn Cohen of Harvard Law School, Professor Jacob Sherkow of the University of Illinois Urbana-Champaign, and Professor Eli Y. Adashi of Brown University state that the next Congress will need to address the question and ethics of gamete editing - that is - editing of the sperm and egg...There are many ethical issues when it comes to editing the embryo, yet some of these do not necessarily apply to the editing of the gamete. This is where Cohen, Sherkow, and Adashi step in. They argue that the ethical issues of editing an embryo are quite different from editing gametes. The coming Congress will need to decide if the current ban should include - or exclude - the editing of sperms and eggs... “Sperm and egg editing occurs before that moment [the moment that the sperm and egg meet and the genetic code is set], upending the claim that editing alters ‘a person.’ The activity is more like selecting a sperm or an egg donor,” say the authors.

Barring any major surprises, the Senate is set to confirm Judge Amy Coney Barrett Monday night. She'll fill the Supreme Court seat that had been held by the late Justice Ruth Bader Ginsburg. Harvard Law Professor Noah Feldman is known as a liberal, but he's vouched for the conservative Barrett, with whom he once clerked on the Supreme Court back in the 1990s. Feldman spoke with GBH All Things Considered host Arun Rath ahead of Barrett's hearing before the Senate Judiciary Committee, and he checked in again with Arun ahead of Monday's vote. This transcript has been edited for clarity.

An op-ed by Jeannie Suk Gersen:  Throughout the past four years, there has been chatter about Donald Trump’s mental health and stability, but little political will to make use of the Twenty-fifth Amendment to the Constitution, which allows Congress to deem a President “unable to discharge the powers and duties of his office” and remove him from power. The discussion resurfaced more seriously this month, however, in light of Trump’s hospitalization for covid-19 and the White House’s lack of transparency around his treatment. The news that he was medicated with the steroid dexamethasone, used for seriously ill covid-19 patients, also alarmed many because its known side effects include aggression, agitation, and “grandiose delusions”—behaviors that, judging from the President’s Twitter account, at least, he already seemed to exhibit. On October 9th, House Speaker Nancy Pelosi unveiled a new bill to establish a Commission on Presidential Capacity to Discharge the Powers and Duties of the Office, which would help carry out the Twenty-fifth Amendment process in the event that the President becomes incapable of doing his job. (Sponsored by the Democratic representative and former constitutional-law professor Jamie Raskin, of Maryland, the House bill is similar to one he introduced in 2017.) Announcing the bill only a week after disclosure of the President’s covid-19 diagnosis and three weeks before the election, Pelosi invoked the Amendment as a “path for preserving stability if a President suffers a crippling physical or mental problem.” She added, “This is not about President Trump. He will face the judgment of the voters, but he shows the need for us to create a process for future Presidents.” Section four of the Twenty-fifth Amendment provides two distinct avenues for removing a President against his will. In one, the Vice-President joins with a majority of the Cabinet to send Congress a written declaration that the President is unable to serve. In the other, the Vice-President does so along with a majority of “such other body as Congress may by law provide.”

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this fourth installment of Deep Bench, how Donald Trump and the Federalist Society forged an alliance that played a role in helping him win the presidency and changed the makeup of our courts.

In the middle of a coronavirus pandemic, it is another, more deadly disease that keeps 20-year-old Haitian Loubean Jean up at night - cholera. Jean was about to celebrate his 11th birthday in 2011 when his father was struck with cholera and died aged 49, leaving five children behind. Jean’s mother, who was also sickened by the waterborne disease that ravaged Haiti a decade ago, survived but still suffers from cramps and blurred vision...Haiti was cholera-free until October 2010, when infected sewage from United Nations peacekeepers sent to the Caribbean nation after a devastating earthquake contaminated a river. Since then about 10,000 Haitians have died of the disease, which can cause profuse diarrhea and fluid loss that can kill within hours. More than 800,000 have fallen ill...The U.N. has not accepted legal responsibility for the outbreak, which human rights lawyers and former officials have said would have likely meant the organisation paying large amounts of compensation to affected individuals. Former Secretary-General Ban Ki-moon apologised to Haiti for the organisation’s role in 2016, saying it had a “moral responsibility” to help affected Haitians. The U.N. also pledged to eliminate cholera from the Caribbean nation, set up a $400 million trust fund to help victims and live up to its “moral responsibility” to those most directly affected and provide material assistance... “For the at least 10,000 people who have lost loved ones, the only thing that has happened is a handful of community projects in a couple of the most affected communities in Haiti,” said Beatrice Lindstrom, who was lead counsel in IJDH’s class action lawsuit. “But these projects don’t go to actually addressing directly the injuries that people suffered,” said Lindstrom, who now teaches at Harvard Law School.

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this third installment of Deep Bench, how the Federalist Society network influenced a historic 2012 Supreme Court decision about the Affordable Care Act.