Media Mentions

An op-ed by Gladden Pappin and Adrian Vermeule: It’s the last full week of presidential campaigning, so Americans might be excused for having missed news that the Vatican renewed its preliminary agreement with China over the appointment of bishops. The agreement has drawn the ire of many American conservatives, not least Secretary of State Mike Pompeo, who charges that a compromise with Beijing erodes Rome’s moral witness. Pompeo’s concerns deserve to be taken seriously. They reflect not only the view of the Trump administration, but that of many Catholics, including Cardinal Joseph Zen, the former bishop of Hong Kong, and other senior churchmen. There is no denying that in Beijing, Rome faces an authoritarian regime that has persecuted people of faith, Catholics especially, from its founding. Yet Americans should also consider what the church sees when she looks to China with eyes ultimately fixed on transcendent, theological horizons. The key here is that the agreement is sharply limited in scope. It primarily addresses the appointment of bishops, the very composition of the church herself. For the church, what matters above all is the mystical embodiment of Christ in the structure of pope, bishops and laity. By giving priority to the question of bishops in the preliminary agreement, the Holy See merely follows the proper sequence of events from the church’s standpoint: First, the lines of authority have to be made clear; then, in subsequent talks, other aspects of the relationship may be clarified. Critics go wrong assuming the agreement is some sort of general charter governing relations between Beijing and the Roman church. The agreement isn’t a concordat. A concordat involves the establishment of official diplomatic relations. The Holy See, which still recognizes Taiwan, is the most important sovereign entity not to have diplomatic relations with China, and that remains true under this agreement.

Justice Brett M. Kavanaugh on Wednesday corrected an error in an opinion issued as part of a Supreme Court ruling that barred Wisconsin from counting mail-in ballots that arrive after Election Day. Though not unheard-of, such revisions are rare, experts said, adding that Justice Kavanaugh’s change highlighted the court’s fast pace in handling recent challenges to voting rules. In the opinion, which was issued on Monday and alarmed Democrats worried about mail ballots being counted, Justice Kavanaugh wrote that while some states had changed their rules around voting in response to the pandemic, others had not. “States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots,” he wrote in his original concurring opinion, which was attached to the 5-to-3 ruling against the deadline extension in Wisconsin. The decision, issued just over a week before the presidential election, immediately drew intense scrutiny, and Justice Kavanaugh’s opinion prompted a complaint from Vermont’s secretary of state, Jim Condos. He pointed out that the state had, in fact, changed its rules to accommodate voters worried about showing up to polling stations during the pandemic...The Supreme Court began noting corrections and changes in opinions following a 2014 study that showed how, for years and without public notice, it had been altering its decisions long after they were issued, said Richard Lazarus, a law professor at Harvard University and the study’s author. During the 2019-20 session, the court noted it had changed errors or typos in written decisions about half a dozen times, he said. The court typically issues several dozen decisions each term. In this case, Professor Lazarus said, Justice Kavanaugh’s error was troubling because it revealed the rapid-fire pace with which the court, days before a presidential election, is making decisions that have enormous implications for the country. “The mistake he made is not of an earth-shattering, catastrophic nature but it does underscore the risk of writing quickly, not writing more deliberately and not taking time,” he said...When the justices do not have time to send opinions back and forth to one another and deliberate together, “they’re more likely to make mistakes,” Professor Lazarus said.

Before dawn on January 23, 2019, Mark McConnell arrived at the Key West headquarters of the military and civilian task force that monitors drugs headed to the United States from the Southern Hemisphere...On a computer approved for the handling of classified information, he loaded a series of screenshots he had taken, showing entries in a database called Helios, which federal law enforcement uses to track drug smugglers. McConnell e-mailed the images to a classified government hotline for whistle-blowers. Then he printed backup copies and, following government procedures for handling classified information, sealed them in an envelope that he placed in another envelope, marked “secret.” He hid the material behind a piece of furniture. McConnell had uncovered what he described as a “criminal conspiracy” perpetrated by the C.I.A. and the F.B.I. Every year, entries in the Helios database lead to hundreds of drug busts, which lead to prosecutions in American courts. The entries are typically submitted to Helios by the Drug Enforcement Administration, the F.B.I., and a division of the Department of Homeland Security. But McConnell had learned that more than a hundred entries in the database that were labelled as originating from F.B.I. investigations were actually from a secret C.I.A. surveillance program. He realized that C.I.A. officers and F.B.I. agents, in violation of federal law and Department of Justice guidelines, had concealed the information’s origins from federal prosecutors, leaving judges and defense lawyers in the dark. Critics call such concealment “intelligence laundering.” In the nineteen-seventies, after C.I.A. agents were found to have performed experiments with LSD on unwitting Americans and investigated Vietnam War protesters, restrictions were imposed that bar the agency from being involved in domestic law-enforcement activities. Since the country’s founding, judges, jurors, and defendants have generally had the right to know how evidence used in a trial was gathered. “This was undisclosed information, from an agency working internationally with different rules and standards,” Nancy Gertner, a retired federal district judge and a senior lecturer at Harvard Law School, told me. “This should worry Trump voters who talk about a ‘deep state.’ This is the quintessential deep state. This is activities beyond your view, fundamentally affecting what happens in American courts.”

Promising to “drain the swamp” was a popular line in 2016. Four years on some Republicans still cheer, pointing out admiringly that President Donald Trump forgoes his $400,000 salary. Even critics concede that America continues to support sanctions on corrupt foreigners. And despite Mr Trump’s widely reported wish to scrap the Foreign Corrupt Practices Act, his government still energetically applies the law against paying bribes overseas. Yet concerns about what swamp-draining really meant surfaced early in Mr Trump’s presidency. Federal prosecutors looked into questionable spending around his inauguration. Among his first acts was to scrap a rule requiring oil and other firms to say what they paid foreigners. As for those swamp-dwelling lobbyists, he drained several directly into his cabinet. Mr. Trump’s reluctance to cut ties to his business interests, or to reveal what they were, was unlike anything seen for over a century. He concedes he owes hundreds of millions of dollars, but will not name his creditors...Worse than the venality has been the weakening of institutions meant to keep corruption in check. Take three examples. The first relates to indictments of men—Michael Cohen, Michael Flynn, Rick Gates, Paul Manafort, Roger Stone—who hung close to Mr. Trump. All were convicted of crimes. Steve Bannon, another close adviser, was charged with fraud in August. Scandal has embroiled various cabinet officials. A culture of rule-breaking is encouraged by the boss: in July he commuted the sentence of Mr. Stone, convicted of seven felonies. Next are efforts to break those who would resist, such as the whistle-blowers, professional civil servants, who testified against Mr Trump in his impeachment trial. An executive order he signed in mid-October grants him the power to fire such officials. Matthew Stephenson of Harvard Law School says this “threatens to subvert one of the most important bulwarks against corruption in all of us law”.

We know that elections have consequences, but we are often reminded that ideas do, too. That link between abstract ideas and real-world results could prove especially fateful on the day after the presidential election. At stake is the idea of judicial originalism, which holds, in the words of the late Justice Antonin Scalia, that the U.S. Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” While this assertion has a seductive simplicity, it’s worth noting that this is simply one theory of how the courts should function...Many conservatives have argued that originalism is the only way to ensure that judges stay restrained and modest, not imposing their views on a society that did not elect them. (Chief Justice John G. Roberts Jr. refers to this as calling “balls and strikes.”) And perhaps the self-styled originalists would accomplish their goal if they actually practiced what they preach. But in fact, the new breed of judicial activists seems to be abandoning the restraint that Roberts prizes and is simply seeking conservative outcomes, using whatever means necessary...In a brilliant podcast, “Deep Background,” Harvard Law School professor Noah Feldman outlines this hypocrisy to Jeffrey Sutton, a federal appeals court judge who sees himself as a conservative originalist. Sutton’s response — to my ear — was that he believed Bush v. Gore had been wrongly decided...Feldman’s podcast series — which is well worth listening to — highlights a growing divide between conservatives who viewed originalism as part of a philosophy of modesty and restraint and new activists who are untroubled by the hypocrisy and simply seek conservative outcomes. It is these activists who have been able to weaken Obamacare (clearly violating the original intent of the legislature that passed it) and invent new rights for corporations that had never before been found in the Constitution (as they did in the notorious Citizens United case).

President Trump has spent the run-up to next week’s election touting himself as the finest steward of the nation’s air and water in generations. “Who would have thought,” he boasted during one stop in Florida, “Trump is the great environmentalist?” But over the course of nearly four years, his administration has steadily loosened oversight of polluting industries, eroded protections for endangered wildlife and stymied Obama-era efforts to address the globe’s most daunting environmental threat: climate change. A Washington Post analysis has found that as Trump’s first term winds to a close, he has weakened or wiped out more than 125 rules and policies aimed at protecting the nation’s air, water and land, with nearly 40 more rollbacks underway...Democrats are already planning how they would revive environmental regulation if they win the White House. Biden has pledged to take executive action to block projects such as the Keystone XL oil pipeline and Alaska’s controversial Pebble Mine, and to rejoin the Paris climate accord to help combat global warming. But overhauling many of the rules altered under Trump would take years, and clawing back oil and gas leases would be nearly impossible. If Trump wins reelection, however, he and his deputies will probably try to shrink the federal government’s environmental role further, cement policy changes into law and finalize dozens of rollbacks they are working on now, said Caitlin McCoy, a staff attorney at the Harvard Law School Environmental and Energy Law Program. “Given the opportunity for a second term, they will initiate and detonate everything they’ve set up,” she said. “We will see even more dramatic action now that all the groundwork is set.”

An op-ed by Cass Sunstein: For decades, U.S. government civil servants have had a degree of job security, in the sense that the president, and his political appointees, could not fire them merely because they were not sufficiently “loyal.” That would change under an executive order issued by President Donald Trump that is aimed at undermining the legal protection long given to many thousands of these career employees. On Jan. 19, 2021, they will apparently become closer to “at will” employees. If the president, or political appointees, want to fire them, they can. This is a horrible idea — more horrible even than it seems. A relatively independent civil service, protected against “at will” discharge, serves the national interest. I saw this close-up in 2009, when I joined the Barack Obama administration as administrator of the Office of Information and Regulatory Affairs, which oversees federal regulation in diverse areas that include clean air, clean water, food safety, homeland security, tobacco, health care, occupational safety, disability rights and transportation. OIRA has a staff of about 45 people, all civil servants. All of them had worked for George W. Bush until Jan. 21, 2009. In the blink of an eye, they were supposed to work for a new administration, with very different values and priorities and with a desire, in many cases, to reverse course as quickly as possible. I am sure that some of them thought that, in important areas, the Bush administration had it right, and that the newcomers were quite wrong. Who cared? Nothing got in the way of their professionalism, expertise, commitment to their jobs, and willingness to raise legitimate objections and concerns. In some cases, Cabinet heads were in a hurry to issue a new regulation — involving, say, air pollution, road safety or visas. Career staff knew that was probably not allowed under the law — and they were entirely unafraid to point that out.

Nine months ago, a group of law students invaded a fancy dinner in Cambridge, Massachusetts, to publicly shame Paul Weiss, a corporate law firm, into dropping one of its wealthiest and most powerful clients. Paul Weiss had long enjoyed a reputation as among the most progressive of the white-shoe corporate firms. But more recently, it had begun representing Exxon, the largest oil and gas company in the world. For decades, Exxon’s scientists and managers have known about the fossil fuel industry’s role in perpetuating global warming, and they have done nothing except spread misinformation. To a group of Harvard law students, this was a bridge too far. They decided to infiltrate Paul Weiss’s recruitment dinner, holding a banner reading, “Drop Exxon,” disrupting the chit chat, and chanting their demands. “We have just a few years left to address the climate crisis,” one first-year law student said at the protest. “That means stopping corporate polluters from continuing to block climate action and evading accountability for their malfeasance. And what is the most critical tool these corporations use to get away with climate murder? It’s this right here.” Right here: the legal industry. And in particular, the kinds of corporate firms that take on the richest and most powerful clients—including the big oil, gas, coal, mining, and fracking companies. While many prominent institutions are facing an overdue reckoning with the global impacts of fossil fuels, the legal profession has largely escaped scrutiny. But lawyers play a central role in the transactions that finance fossil fuels, the litigation that prevents climate accountability in the courts, and the lobbying that preserves the destructive status quo in Congress.

Iranian government-backed hackers last week pulled off a feat few were expecting. They became the first foreign adversary to interfere in the 2020 election by sending threatening emails to voters. But that action — so far the only confirmed intelligence operation by a foreign government that directly targeted specific voters in this election — had far less impact than Moscow’s hacking and leaking of Democratic emails four years ago. Officials and disinformation experts warn that overestimating the threat posed by foreign spies and hackers plays into their narrative that they have the power to sow chaos, and undermines the ability to fashion the most effective and proportionate response...Much of the disinformation circulating today is driven by domestic actors, including the White House, said Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at HarvardUniversity. Occasionally the Russians may have amplified some of President Trump’s false claims that mail-in ballots are insecure or the pandemic has been stanched, he said. “But I haven’t seen anything meaningful.” To overstate the effect of Russian efforts, he said, is to enable their success. If policymakers respond out of fear or anger, they risk compounding the problem, he said. A number of researchers have concluded that the effects of Russian efforts on social media in 2016 likely were overstated, and that by contrast, the Russian hack and subsequent leak of emails from the Democratic National Committee and John Podesta in 2016 arguably had an impact. The leaks led to the resignation of the DNC leadership and disrupted the Democratic convention, and also shaped the media and debate narratives in ways that undermined Democratic nominee Hillary Clinton.

An op-ed by Noah Feldman: There has been much worried Democratic speculation about how the Supreme Court might intervene to hand the election to President Donald Trump. Many scenarios are possible, but one is much more probable than the others. After Monday’s Supreme Court ruling blocking late-arriving mail-in ballots from being counted in Wisconsin, we can now say very concretely what the Bush v. Gore redux scenario looks like. The scenario would arise in Pennsylvania. And the decisive vote would likely be cast by Justice Amy Coney Barrett. That’s because of Pennsylvania’s distinctive legal dispute about whether to count mail-in ballots received after 8 p.m. on Election Day. First, it’s important to understand that a Supreme Court decision about Pennsylvania will only truly determine the outcome of the election if the electoral vote is close enough to make Pennsylvania decisive. If either candidate can win without Pennsylvania, this scenario wouldn’t decide the presidency. But if the electoral tally is close, and late-arriving ballots in Pennsylvania could provide the margin of victory, we could be in for a legal nightmare. As I explained in an earlier column, Pennsylvania state law says that ballots can’t be counted if they are received after the polls close on Election Day. But the Pennsylvania Supreme Court, relying on the Pennsylvania Constitution, ruled that under current conditions created by the combination of Covid-19 and U.S. mail delays, the state must count ballots received for three days after the statutory deadline.

A too-close-to-call election night. A supreme court and a legislature at odds with each other. A pivotal swing state with a large number of electoral votes up for grabs. A challenge over which ballots should be counted. A barrage of lawsuits. Sound familiar? Two decades ago, all eyes were on Florida as Election Day came to a close and the fate of the presidency rested in the hands of the Sunshine State. What followed was weeks of litigation over a recount of 537 votes, and an election ultimately decided by the U.S. Supreme Court in Bush v. Gore. In 2020, Pennsylvania has been called the “tipping-point” state— the state that could give either Democratic presidential candidate Joe Biden or Republican candidate Donald Trump the edge to capture enough electoral votes to be declared the winner... This combination of factors — the litigation, the misinformation, and the likely delay in getting millions of mail ballots counted, thus delaying final results — could give Pennsylvania the spotlight on Election Day and beyond, much like Florida received in 2000...Mark Tushnet, a professor of constitutional law at Harvard Law School, said looking at the presidential election one week out, he’s not sure whether the race is going to be close anywhere. But if it were to come down to Pennsylvania, the days following the election would be similar to Florida in 2000, where the state Supreme Court would be the initial actor on a lot of litigation. “At the outset, everything is going to be up for grabs,” he said. “The challengers will use every available challenge to get the initial vote to change in a way favorable to them.”

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.”