Media Mentions

A short-handed Supreme Court — driven from its courtroom by the pandemic, grieving over the loss of a colleague and awaiting the outcome of a divisive confirmation battle — will return to the virtual bench on Monday to start a term that will present Chief Justice John G. Roberts Jr. with a daunting test. “The chief’s leadership of the court, which just a few weeks ago appeared to be at its zenith, is now in peril,” said Richard J. Lazarus, a law professor at Harvard who has taught courses on the Supreme Court with Chief Justice Roberts. “An addition of yet another very conservative justice could quickly eliminate the chief’s ability to steer the court toward moderation.” The court will again hear arguments by telephone, starting with a timely case on the role of partisanship in judging, a subject that will also figure in Senate hearings on the Supreme Court nomination of Judge Amy Coney Barrett, which are scheduled to start a week from Monday. President Trump and Senate Republicans have been working hard to speed her path to the seat left vacant by the death last month of Justice Ruth Bader Ginsburg...Professor Lazarus said the court’s last term had reassured the public that “there was some truth to the chief justice’s admonition that the justices, while on balance very conservative, were not political partisans.” “All that hard-earned good will may soon be in tatters because of how President Trump has responded to Justice Ginsburg’s passing,” he added. “No matter how hard the chief and his colleagues try to stay above the political fray, it is a battle they cannot win when the president treats his nominees to the court as political loyalists.”

To secure elections, paper ballots and risk-limiting audits are needed and systems have to be established to contain the spread of misinformation, a recent Indiana University Bloomington study has found...Election security is discussed in two interconnected yet separate areas of research: the security of the system itself, like voting machines and tabulation systems, and digital repression, which includes misinformation on social media platforms...Beginning to follow other countries, the U.S. did create an information sharing and analysis center for election officials to share cyber threat information and best practices, Shackelford said. Abbey Stemler, an author of the study and a faculty associate at Harvard University’s Berkman Klein Center for Internet and Society, said academics, computer scientists and hacktivists – hackers who use their skills to bring about political and social change – should be apart of discussions on how to secure elections “to detect vulnerabilities.” “We need to figure out a way to solve that problem together, because when you have each jurisdiction trying to do the best they can we’re not enjoying the efficiencies of collective action and collective focus on the problem,” Stemler said. “We need computer scientists, hackers and other academics to be heard because they often feel ignored.”

President Trump’s positive coronavirus test has raised the possibility, however remote, that he could become incapacitated or potentially die in office if his symptoms worsen. While that outcome remains highly unlikely, and few in Washington were willing to discuss it on Friday, when Mr. Trump was taken to Walter Reed National Military Medical Center for treatment, the Constitution and Congress long ago put in place a plan of succession to ensure that the nation is protected from adversaries and internal conflict when the elected president cannot serve. The Constitution makes clear that the vice president is first in line to succeed the president should he or she die in office, and can step in to temporarily take on the duties of the presidency should the commander in chief become incapacitated. Vice President Mike Pence, 61, tested negative for the coronavirus on Friday...Some constitutional scholars have raised doubts about whether the speaker of the House and the president pro tempore of the Senate are eligible to step in for the president, arguing that the framers intended for only executive branch officials — an “officer” is the term in the Constitution — to qualify. Jack L. Goldsmith, a Harvard Law School professor, warned this year that the seemingly arcane dispute could cause a clash. It is possible, for instance, that Ms. Pelosi and Secretary of State Mike Pompeo, the next executive branch official in line, could make competing claims to the presidency. “These are all nightmare scenarios because these points of constitutional law have really never been tested,” Mr. Goldsmith said... “You think about ambiguity in the chains of command when we have adversaries around the world,” he said. “We could end up with some real issues and a government in effect adrift with some competing power players.”

We bring you live coverage of the developing news regarding President Donald Trump and First Lady Melania Trump testing positive for the coronavirus, and take your calls with our panel of experts. Guests: Shira Doron, infectious disease physician and hospital epidemiologist at Tufts Medical Center. Anthony Brooks, WBUR senior political reporter. Michael Curry, Deputy CEO & General Counsel of the Massachusetts League of Community Health Centers, former head of the Boston NAACP, and a member of the national NAACP Board of Directors. Nancy Gertner, WBUR legal analyst, retired federal judge, and senior lecturer at Harvard Law School. David Gergen, advisor to presidents Nixon, Ford, Reagan and Clinton, and founding director of the Center for Public Leadership at the Harvard Kennedy School.

A podcast by Rob Malley and Naz Modirzadeh: This week on Hold Your Fire!, Rob reminisces about his recent trip to Azerbaijan, where he saw warning signs of a “frozen conflict” ready to thaw. Naz explains why the U.S. might regret trying to designate the Huthis as a terrorist organization if it cares about  helping Yemen make peace. They are joined by Aaron Miller, a veteran U.S. diplomat and Carnegie senior fellow, who examines the successes and shortcomings of President Trump’s unconventional diplomacy, and explains how the phrase “nobody ever washes a rental car” applies to conflict prevention.

What are the police for? Producer B.A. Parker started wondering this back in June, as Black Lives Matter protests and calls to “defund the police” ramped up. The question led her to a wild story of a stabbing on a New York City subway train, and the realization that, according to the law, the police don’t always have to protect us. Producer Sarah Qari joins Parker to dig into the legal background, which takes her all the way up to the Supreme Court... and then all the way back down to on-duty officers themselves. Featuring Harvard Law professor John Goldberg.

For Frances Smylie Brown, the upcoming presidential election will mark the fifth time she has worked the polls as an election judge in Denver. But with the novel coronavirus still lurking, she knows that this experience will be like no other. Preparations include a raft of increased safety protocols at polling sites, such as separating voters and judges with plexiglass separators, spacing outlines and disinfecting surfaces...Like Brown, election officials around the country are gearing up for the unique challenges of opening polling places during a global pandemic. Out of the 12 states ABC News did not receive information from, seven have a state-wide mask mandate in place. And 33 -- plus Washington, D.C. -- of the 39 states reached out to by ABC News confirmed that they plan to require or strongly recommend voters to wear face coverings. For them, one of the thorniest challenges has been figuring out what to do with voters who refuse...Some don't agree that election officials are out of line when asking voters to mask up. Nicholas Stephanopoulos, an expert on election law and constitutional law and a professor at Harvard Law School, told ABC News he did not think it would be unconstitutional to turn away a voter who refused. "For challenges like these, the law asks how heavy is the policy's burden on voting?" he said. "Here, the burden on voting is trivial; it's perfectly easy to cast a ballot while wearing a mask."

Many liberals are worried about the conservative direction the Supreme Court could take if Judge Amy Coney Barrett is confirmed by the Senate. Harvard Law Professor and constitutional scholar Noah Feldman says he shares their concerns, but he's written an op-ed in Bloomberg vouching for Barrett, whom he once clerked with on the Supreme Court. Feldman spoke with GBH All Things Considered host Arun Rath.

The Federal Energy Regulatory Commission does have the legal authority to implement a carbon price, legal experts agreed during a Wednesday technical conference on carbon pricing. Under sections 206 and 205 of the Federal Power Act, FERC has the authority to actualize such a policy through the regional transmission operators (RTO) and independent system operators (ISO), six panelists spanning academia and industry law told commissioners. But a slightly murkier question is whether the commission has the power to implement such a tariff unilaterally — an issue Commissioner James Danly was particularly interested in. If FERC were to establish a record, there is no "inherent jurisdictional bar" to prevent the commission from issuing a carbon price without a direct request from grid operators, Ari Peskoe, director of Harvard's Electricity Law Initiative, said. Others said it was possible, but tricky without a legislative mandate. FERC's highly-anticipated carbon pricing conference raised a number of questions about the technical feasibility of implementing a carbon price. For Danly, FERC's newest commissioner, only one question was relevant: Does FERC have legal authority to do this? ... Danly pressed this point further in his line of questioning. "I'm assuming ... from what I've heard that there's nobody on the panel who believes that FERC has the mandate or authority to simply unilaterally impose the universal carbon pricing system," he said. Peskoe countered that he thought the commission did, in fact, have that authority.

An article by Ashley Nunes: Joe Biden is betting big on climate change. Should he win in November, the presidential hopeful vows to pursue a “clean energy revolution”; one that will help American workers and the environment. His proposal, impressively titled “The Biden Plan To Secure Environmental Justice and Equitable Economic Opportunity in a Clean Energy Future”, (say that three times quickly) promises to create “stable, well-paying jobs that drive clean energy here at home and abroad”. It won’t come cheap, of course. What is the estimated sticker price for going green? $2tn. And details on funding the plan remain murky. Publicly, the campaign says the rich will have to pony up more cash (how creative). Privately, officials concede deficit spending is likely (how unsurprising). Biden’s reluctance — for now at least — to stiff taxpayers with a hefty climate tab is to be expected. After all, climate change matters less to the electorate than what they tell polling companies, and they are often unwilling to pay for tackling it, as I have written here before. But don’t just take my word for it. Former California governor Arnold Schwarzenegger expressed similar sentiments in 2017. “We figured out that no one cares about global climate change, because this is something that’s going to happen 20 years from now. If people were worried about 20 years from now, why would they have $20,000 debt on their credit card?” Schwarzenegger noted. “People care about what happens today.” And what’s happening today is that Americans are worried. They’re worried about getting stuck in jobs that offer nothing more than low pay and long hours, with few benefits. Saving the polar bears isn’t a priority. So how do you address economic and environmental concerns simultaneously? Why, by creating green jobs. And contrary to the popular adage, you can — with Joe Biden in charge — have your cake and eat it too, apparently.

Cariol Holloman-Horne's legal team made the first step Wednesday toward a new lawsuit over her firing 12 years ago from the Buffalo Police Department. Her attorneys filed in State Supreme Court in Buffalo paperwork seeking an index number assigned to her old case. It is a procedural motion, but it signals the start of a new legal fight to have her firing overturned and to get a full police pension. Horne was fired in 2008 following an arbitration hearing. She was accused of attacking a fellow officer as he was trying to arrest a man during a domestic dispute on Nov. 1, 2006. Horne said then and has maintained over the years that she was trying to stop the officer from choking the man. At the time, she had 19 years on the job, which meant she was one year shy of the 20 years required to receive a full police pension upon retirement. That meant she would have to wait until she was 55 to retire and receive a partial pension from the state. This is not Horne's first attempt to have her case overturned. Several months after she was fired, she sued to be reinstated,  but then-State Supreme Court Justice Joseph Makowski ruled against her on several procedural matters. Horne's case took on renewed interest after the officer she had fought, Greg Kwiatkowski, pleaded guilty to a misdemeanor charge in an unrelated federal police brutality case. Kwiatkowski, who testified against two other officers who were acquitted in that case, waws sentenced to four months in prison. The uproar earlier this year over the video-recorded death of George Floyd, who suffocated under the knee of a Minneapolis police officer while three others officers stood nearby, also drew new attention to Horne's firing. Horne is represented by a legal team led by Ronald Sullivan and Intisar Rabb of Harvard Law School. Sullivan and his team represented the family of Michael Brown, a Black teenager whose shooting death by a white police officer in Ferguson, Mo., sparked protests there in 2014. The attorneys were not available for comment Wednesday.

It has been called a dead letter, an inkblot, the most important amendment in the Constitution. Although the Ninth Amendment was ratified in 1791, its history and purpose are contested to this day. It reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But what does this mean? How have the courts interpreted it? What does it say about the role of government in protecting our rights? Three distinguished law professors, Laurence H. Tribe, Randy E. Barnett, and Michael W. McConnell, take on these questions and more in Retained by the People.

Carbon pricing in regional wholesale power markets is a good if not necessary step to combat climate change and ensure reasonable rates for electricity customers. That was the consensus yesterday among 30 energy sector panelists who discussed the pricing mechanism before the Federal Energy Regulatory Commission. In an all-day, long-anticipated virtual conference, an array of academics, grid operators and utility executives discussed FERC's legal authority, various designs for adding a carbon price in regional markets — and potential pitfalls... That could send a signal to states that they can develop carbon pricing programs without fear that FERC would reject those proposals, Dennis said...Experts on the first panel yesterday focused on FERC's legal authority to implement carbon pricing in wholesale markets. Kate Konschnik, the director of climate and energy programs at Duke University, and Ari Peskoe, the director of the Harvard Electricity Law Initiative, agreed that such a policy is within the agency's purview. "The Federal Power Act poses no fundamental obstacle to markets incorporating state carbon pricing," Konschnik said. Peskoe said pricing carbon is not merely an environmental issue, noting financial regulators have warned about potential costs from failing to put a price on emissions. "No serious conversation about the future direction of the power industry ignores carbon emissions," he said. "The commission has a duty to encourage the industry's orderly development. It should not dismiss carbon pricing as someone else's job."

More than seven months after the beginning of the COVID-19 pandemic, large segments of the economy are reopening. That includes businesses, offices and restaurants, as well as entertainment and cultural institutions like museums and cinemas. But what are the rights of the people who will be working there? Can they decide not to work if they feel unsafe? And what protections are employers required to provide? Sharon Block is executive director of the Labor and Worklife Program at Harvard Law School and co-author of the Clean Slate report which provides pandemic recommendations for employers and employees. She joins host Robin Young to discuss the issue.

Amy Coney Barrett’s Supreme Court nomination likely will bring renewed attention to the issue of Title IX litigation filed by students accused of sexual misconduct on campus. As a judge on the Seventh U.S. Circuit Court of Appeals, Ms. Barrett wrote a 2019 decision that revolutionized how courts consider Title IX claims from accused students. Lawsuits in this area have multiplied since 2011 guidance from the Obama administration, which pressed universities to adopt biased procedures to favor accusers, hoping that doing so would increase reporting of campus allegations. Several other courts of appeals embraced Judge Barrett’s standard, which now applies to claims in 22 states. Beyond its importance to Title IX law, the opinion speaks to Judge Barrett’s quality as a jurist. The case involved a relationship between two Purdue University students...The Purdue case provided an almost perfect fact pattern for a judge eager to impose a cross-examination requirement. Yet Judge Barrett’s opinion held that because Purdue’s conduct might have violated the student’s rights on more clearly defined questions—insufficient notice of the evidence against him, and possibly a “sham” hearing—the court didn’t need to address the cross-examination issue. Judge Barrett exercised judicial restraint. As Nancy Gertner, a Harvard law professor and a former federal judge, recently observed, “Judges of all stripes around the country have been concerned with fairness in these proceedings.” It’s unlikely that Judge Barrett’s nomination will rise or fall on her decision to join scores of her colleagues in issuing a ruling favorable to a student accused of sexual misconduct. But to the extent that concerns such as intellectual quality or judicial temperament still play a role in the confirmation process, Judge Barrett’s Purdue opinion should serve her well.

The disastrous debate that unfolded in Ohio should prompt us to take the possibility that President Trump will try to steal the election far more seriously — even as it also renders that outcome much less likely to succeed. Trump exhorted his far-right army to mobilize for a sustained conflict over the election results. He refused to say whether he’d accept a legitimate loss. And he confirmed he’s expecting the Supreme Court to help invalidate countless legally cast ballots...The short version is this. At Amy Coney Barrett’s confirmation hearing, Democrats can press a line of questioning that might illuminate whether Trump can pull off one of his most-discussed means for rigging the election: getting a GOP state legislature to appoint substitute pro-Trump electors to the electoral college, regardless of the popular vote in that state...Could this work? To be clear, it shouldn’t. The Constitution does assign to each state the authority to “appoint” its electors, in a “manner” that the legislature “may direct.” But in a terrific piece, three legal scholars — Grace Brosofsky, Michael Dorf and Laurence Tribe — explain that precedent shows this means the legislature must “direct” how the state appoints its electors by making laws that create and define the process for doing so. Virtually all states have made laws that provide for electors to be appointed in accordance with the popular vote outcome in them. (Maine and Nebraska do this by congressional district.) Thus, those scholars argue, legislatures can’t appoint pro-Trump electors without making a new law providing for appointment of electors based on legislators’ own will, not that of the voters.

On the evening of Sunday, Aug. 9, workers at the MKE1 Amazon fulfillment center in Kenosha, Wisconsin, received an alert from the company via text message: More of their colleagues had tested positive for the coronavirus and they needed to maintain social distancing. They’d received about three of these notifications a week in the preceding four weeks...Kenosha County’s health director, Dr. Jen Freiheit, describedAmazon as “less than easy to work with” in an email sent to a colleague in May, referring to efforts to find out how many workers had tested positive for Covid-19. Amazon’s lack of transparency, combined with the lack of federal protections for U.S. workers who contract infectious diseases in the workplace, make it almost impossible to track the spread of Covid-19 at one of America’s largest employers during a coronavirus-led boom in online retail. This has left some of its 500,000 warehouse workers at its 110 U.S. fulfillment centers — deemed essential during lockdown — attempting to fill the information gap... “If we want to stop this virus, we collectively have to be able to keep workers safe and we have to know when people are getting exposed at work,” said Terri Gerstein, senior fellow at the Economic Policy Institute, a labor-funded think tank, and director of the State and Local Enforcement Project at Harvard Law School’s Labor and Worklife Program. “It's just layer upon layer of inadequacy in terms of taking the steps needed to protect people.” ...State and local health departments follow CDC guidelines for tracking the pandemic. Many states have laws requiring doctors and laboratories to report cases, but the standardized form the CDC issued for doing so does not ask for the patient’s place of work or occupation unless the patient is a health care worker. “The idea that occupational information is not being captured when data about Covid is being gathered in any source is absurd. It’s just foolish and a terrible missed opportunity,” said Gerstein, of Harvard and the Economic Policy Institute.

An article by Dustin Lewis: Regular readers of Just Security will know that the United States and Russia do not see eye to eye on many matters touching on war and peace, not least around cyber, information security, and the conflict in Syria. But you do not have to squint to glimpse how the two are, in several important respects, similarly positioned on one side of an enduring impasse on autonomous weapons. While there is no definition in international law of autonomous weapons, one shorthand is weapons that, once initiated, can nominate, select, and apply force to targets without further human intervention. The debate is not purely academic: a handful of systems falling into this relatively narrow definition are already in use, such as so-called loitering munitions; once launched, those systems can linger in the air over several hours while scanning for targets and then strike without in-the-moment clearance by a human operator. The spectrum of States’ views is on display in the Group of Governmental Experts (GGE) on emerging technologies in the area of lethal autonomous weapons. At its core, the deadlock concerns whether existing international law mostly suffices (as the United States, Russia, and a handful of others have asserted) or new legal rules are needed (as dozens of other States have contended). In brief, beyond largely generic reaffirmations of existing rules and agreement on the importance of the “human element” in the use of force, States disagree in certain critical respects on how to frame and address an array of legal dimensions concerning autonomous weapons.

A podcast by Noah Feldman: Dr. Vivek Murthy, the former Surgeon General of the United States and health care advisor to Democratic presidential nominee Joe Biden, discusses how to rebuild public trust in science, why rolling out a COVID-19 vaccine will be challenging, and why despite everything he still feels hopeful.

An article by Noah Feldman: Secretary of Commerce Wilbur Ross appears to be openly flouting the law in connection with the census — again. This is the same cabinet official who was slapped down by the Supreme Court for violating proper legal procedure in trying to introduce a citizenship question to the census. Now, Ross has announced his intent to end the census counting early, on October 5, even though a federal district judge ordered him last week to let the counting continue until the scheduled end date of October 31. If this sounds crazy, that’s because it is. It’s not normal for executive branch officials to violate court orders directed explicitly at them. Violating a federal judge’s order undermines the rule of law. It is ordinarily met with sanctions that can range from large fines to imprisonment. The judge will now have to decide what steps are appropriate, and fast. These recent events grow out of a lawsuit brought by a combination of counties, cities and nongovernmental organizations against Ross and the official in charge of the census, Steven Dillingham. The suit challenged a “replan” issued by the Census Bureau in August that said, among other things, that census counting would end on September 30, 2020, a month before the originally planned end of October 31. On September 24, Judge Lucy Koh, a highly respected judge, issued an injunction blocking the new proposed date. Her reasoning was that Ross and Billingham and their agencies had not offered an adequate, legitimate, reasoned explanation for the change. That failure violated the Administrative Procedure Act. This was essentially the same reasoning used by Chief Justice John Roberts and the Supreme Court in 2019 to block the citizenship question from the census.

In the opening weeks of 1945, with their armies racing to Berlin, the three Allied leaders recognized that the war had reached a critical juncture and called for another strategy session to resolve difficult questions about the defeat of Germany and the future organization of Europe. Weary and coping increasingly with the frailties of age, Britain’s prime minister, Winston Churchill, dreaded the prospect of traveling all the way to the Crimea, as far west as Stalin was willing to go. He harbored grave concerns about holding the meeting on the Black Sea coast, and complained that if the planners had been given 10 years to research a possible rendezvous site, they could not have found a more inconvenient venue. But eager to secure Soviet cooperation to guarantee victory in the Pacific, President Franklin D. Roosevelt, despite his own deteriorating health, accepted Stalin’s proposal for a summit in Yalta. Churchill, who had suffered a serious bout of pneumonia on the way home from the last meeting of the “Big Three,” in Tehran, grudgingly agreed to make the arduous journey, but warned his daughter, Sarah, that this time he knew he was “in for something. According to “The Daughters of Yalta,” Catherine Grace Katz’s ‘22 detailed behind-the-scenes account of the conference, Churchill’s trip did not get off to a promising start. Between the blizzard that chased them east and his percolating anxiety, by the time Churchill arrived at Malta on Jan. 30 for a preliminary huddle with Roosevelt, he was feverish and filled with trepidation about the upcoming negotiations. He was also sweating the state of the British-American friendship, which was not as close as it had been in the early days of the war. It was essential that he find a way to settle Britain’s differences with America, or it would portend badly for postwar cooperation.