Media Mentions

An op-ed by Jason Harrow and Lawrence Lessig: What would happen if a presidential candidate were to die close to an election? All of us should hope President Trump recovers quickly from covid-19, and that this difficult situation never arises. But the president’s illness underscores the reality that this outcome is within the realm of possibility — and that our existing election architecture needs fine-tuning to deal with it. This scenario arose when we argued Supreme Court cases last spring about the role of presidential electors. Based both on history and current state and federal law — including the Supreme Court’s decision in the so-called faithless-elector case, Chiafalo v. Washington— it’s not clear what would happen if a presidential candidate dies either shortly before Election Day or before the electoral college has gathered to ratify the election results. That dangerous ambiguity can be closed if states act quickly to make sensible modifications to their laws, and if the political parties and state officials in the remaining states commit to letting the electoral college carry out the will of the people, as the Supreme Court envisioned in Chiafalo. Many states have laws that, if read literally, would force presidential electors to cast votes for candidates who have won the state’s popular vote — even if the candidate were deceased. Take Colorado, whose law was before the Supreme Court. Colorado law says “each presidential elector shall vote for the presidential candidate . . . who received the highest number of votes” in the general election.

In the midst of America’s racial reckoning, this program provides inspiration from Bryan Stevenson, one of the country’s leading advocates for racial reconciliation, on what motivates him to continue the work toward justice. Featuring Harvard Law professor Elizabeth Bartholet.

Watching the footage now, you can almost see the virus particles swirling in the air, an ominous cloud sprinkling the Supreme Court nomination ceremony in the White House Rose Garden, as Judge Amy Coney Barrett stands behind the podium and in her Jennifer Coolidge-on-helium voice tells Donald Trump that she’s “deeply honored by the confidence you have placed in me.” There they were, a mostly white crowd of Republicans packed together, shank to flank,  hugging, kissing, handshaking, close talking, backslapping, thumbing their exposed noses at the CDC’s social distancing guidelines. The overwhelming majority of attendees declined to wear face masks, including the guest of honor, her husband, and their seven young children...But how about her judgment? It’s “quite bad,” says Laurence Tribe, a constitutional law scholar at Harvard. Over the course of the past week, Judge Barrett has demonstrated “the judgment of someone whose eagerness to please her benefactor trumps (no pun intended) her concern for the health and even survival of others.” ... “Those hearings should be canceled,” said Tribe. “The idea of rushing this confirmation through at breakneck speed to fill the lifetime vacancy created by Justice Ginsburg’s recent death now that the election of the next president is not just imminent but already underway is little short of insane, especially in the face of the pandemic and in light of how the [Merrick] Garlandnomination was handled.”

It was bound to happen. People across the world are trying to trademark QAnon, the American far-right conspiracy theory baselessly claiming that Donald Trump is saving the world from a group of elite satanist paedophiles. According to data from the World Intellectual Property Organisation, a UN agency dealing with patents, copyrights, and trademark, seven applications to register “QAnon” or “Q Anon” as a trademark have been filed since the conspiracy theory debuted on 4Chan in October 2017. Of these, two have been successful – one in Australia and one in Germany – one has been dismissed, and the remaining four are pending. Most applications declare the intention to use the word – the pseudonym of the conspiracy theory’s initiator and now a byword for the whole delusion – as a brand for clothes, hats, coffee mugs, gadgets; some also aimed at registering the trademark to provide entertainment products and consultancy services...But the United States, where QAnon was born and most of its followers are based, is also the country where trademarking it might prove toughest. “Every time there's a cultural phenomenon, someone will try and register the associated phrase as a trademark,” says Rebecca Tushnet, a professor of law at Harvard Law School. “In the US, it usually fails.” That is because trademarks are supposed to work as indications of source: a swoosh on a pair of sneakers will tell you that those shoes were made by Nike rather than Reebok; an apple on a laptop will remind you that your computer was designed in Cupertino. In contrast, a QAnon logo on a T-shirt would not bring to mind any particular stylist. “The US Patent and Trademark Office [USPTO], which is the US entity that scrutinises these things, is likely to say: ‘This is just a name of a dispersed movement’,” Tushnet explains. “It doesn't tell anything about the source of the product.”

An article by Cass Sunstein: Some legal scholars, and some judges, are “originalists”; they believe that judges should be governed by the “original public meaning” of the Constitution’s text. The late Justice Antonin Scalia was an originalist. So is Justice Clarence Thomas. And so is the latest Supreme Court nominee, Judge Amy Coney Barrett. Debates about originalism have become complicated. But one point is simple: A committed originalist is going to have to allow the national government to discriminate on the basis of sex and race. Let’s spell that out. Judges who are committed to the “original public meaning” of the Constitution would almost certainly have to allow the federal government to say, “No women need apply.” They would probably have to conclude that if Congress wants federal agencies to pay men twice as much as women, the Constitution does not stand in the way. Originalist judges would find it exceedingly difficult not to rule that under the Constitution, Congress can segregate the schools in the District of Columbia. Originalist judges would probably have to conclude that if Congress wants to restrict African-Americans to lower-level positions within the federal government, the Constitution is not an obstacle. On originalist premises, a “whites only” policy would be constitutionally fine, insofar as we are speaking of the decisions of the U.S. government. Here’s why.

Top law firms, led by the two major firms that represent Exxon and Chevron, are worsening the climate crisis, according to new research into the role the legal industry plays in climate change. The report, 2020 Law Firm Climate Change Scorecard, was released Thursday by Law Students for Climate Accountability (LS4CA), an organization of law school students from across the country who are committed to holding the legal industry accountable for its role in climate change. LS4CA researchers examined the work of the top 100 firms as ranked by Vault.com, which compiles an annual ranking of the most prestigious firms in the United States. Researchers analyzed litigation, transactional work, and lobbying work done by each firm between 2015 and 2019... LS4CA researchers found the nation’s top firms worked on 286 cases that exacerbate climate change, compared with 27 that address or curb climate change. Two firms were highlighted for their work on behalf of fossil fuel companies: Paul, Weiss, Rifkind, Wharton + Garrison LLP, whose attorneys are defending Exxon in litigation filed by dozens of municipalities seeking restitution for climate damages, and Gibson, Dunn + Crutcher LLP, which works on behalf of Chevron in those same suits, among others... Paul, Weiss’ reputation was questioned earlier this year when students at some of the nation’s top law schools—including Yale, New York University, Harvard and Michigan —staged protests at the firm’s on-campus recruiting events and signed a pledge refusing to work for the firm until it dropped Exxon as a client. Students compared the firm’s representation of Exxon to its work on behalf of cigarette giant Phillip Morris during litigation to hold tobacco companies accountable for the harmful effects of smoking. “My classmates and I came to law school to learn skills to work towards a future that is safer and more just,” Lily Cohen ‘22, a student at Harvard Law School and an organizer of the #DropExxon protests said. “I hope that this scorecard emboldens firms to make decisions about people, not just profits.”

In the run up to the US presidential election on November 3, digital platforms are releasing a number of new or updated policies related to disinformation, election advertising and content moderation. We asked five experts if big tech should be setting the terms of political speech. And if it does, how might this ad hoc and disjointed approach to platform governance impact democracy? ... Evelyn Douek, the Berkman Klein Center: “We are now firmly in a world of second or third or fourth bests. No one’s ideal plan is the current patchwork of hurriedly drafted policies written and enforced by unaccountable private actors with very little transparency or oversight. Nevertheless, here we are. So platforms should be as clear and open as possible about what they will do in the coming weeks and tie themselves to a mast. Comprehensive and detailed policies should not only be the basis for platform action but a shield for it, when inevitable charges of bias arise. Platforms have been talking tough on the need to remove misinformation about election integrity, and rightly so — it’s an area where relying on democratic accountability for false claims is especially inadequate, because the misinformation itself interferes with those accountability mechanisms. You can’t vote someone out if you’re scared or misled out of voting at all.” ... Dipayan Ghosh, the Berkman Klein Center: “The political discourse is increasingly moving online, and particularly to dominant digital platforms like Facebook and YouTube — we know that. Internet companies have variously enforced new policies — such as Facebook’s new restrictions against certain hateful ads, and Google’s limitations on the micro-targeting of political ads. These are half-measures: they are not enough. Dominant digital platforms should be liable for facilitating the dissemination of political advertising at segmented voting audiences. In the absence of such a policy, we will never diminish the disinformation problem — let alone the slate of related negative externalities that have been generated by the business models at the core of the consumer internet.”

An article by Cass Sunstein:  Now that President Donald Trump has tested positive for Covid-19, the Department of Justice is almost certainly focusing on the 25th Amendment, which provides for the transfer of presidential authority to the vice president. No one who works for a sitting president wants to think about that amendment. But in any administration, worst-case scenarios get attention, and if the president is sick, the lawyers and the vice president have to be clear on what the 25th Amendment says and requires. The good news is that for most imaginable health outcomes associated with the virus, it is entirely clear. The less good news is that for some imaginable health outcomes, especially those associated with Covid-19, the 25th Amendment is ambiguous. It offers two different routes by which the transfer of power can occur. Section 3 says this: ‘Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.’ Section 4 says this: ‘Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.’ Under section 3, the president voluntarily transfers power to the vice president. Under section 4, the decision is made by the president’s own team – by majority vote.

An article by Noah Feldman:  A federal judge in California has struck down President Donald Trump’s executive order barring many types of visa entrants into the U.S. As a reminder, Trump issued this order in June because of the supposed threat foreign workers pose to native-born employment during the Covid-19 pandemic. The decision flatly contradicts a different ruling last month by a different federal district court judge in Washington, D.C. Both cases will now go to the respective courts of appeals. If those courts also disagree, and if Trump is re-elected and doesn’t retract the executive order, the issue could eventually make its way to the Supreme Court. Which judge is right? The answer depends on how you read the 2018 Trump v. Hawaii case in which the Supreme Court upheld the 3.0 version of Trump’s Muslim travel ban. The California federal court read the travel ban case narrowly and struck down the Covid-era order as beyond the president’s power and as insufficiently reasoned. The D.C. federal court read the travel ban case broadly and upheld the Covid-era order on the theory that federal law basically lets the president do whatever he wants with regard to immigration. My best guess is that if the case eventually gets to the Supreme Court, the justices would adopt the narrower reading of Trump v. Hawaii. The Covid immigration ban would thus ultimately be blocked. The alternative would be to give the president nearly carte blanche over immigration matters. That result would not sit well either with the court’s liberals or with all of its conservatives.

Barely a week after the death of Ruth Bader Ginsburg, before the late justice had even been buried, President Donald Trump hosted a Rose Garden ceremony to formally announce his nomination of Amy Coney Barrett to fill the open seat on the Supreme Court. A week later, it appears that the inauspicious ceremony may have been at the center of the coronavirus outbreak now plaguing the White House and the Senate. Yet even with the president hospitalized and three Republican senators infected with the virus, the Republican Party is barreling ahead with its effort to install Barrett mere weeks before Election Day. The reckless rush to vote is an indication of the desperate and corrosive power grab at play, one that places the future of the Court at risk. If Republicans succeed, and Democrats win the Senate and the White House in November, Democrats must add seats for additional justices—not as a means of political one-upmanship, but, paradoxically, to save the Court...However, if Biden wins the election, then the Senate should decline to vote on Trump’s nominee and Biden should fill the seat. It is not too late to take this path, which is right for the country and the Court. This is not to say that a Republican-controlled Senate doesn’t have the constitutional power to confirm a nominee right now—it clearly does. But in exercising this power, Republicans would be committing themselves to an extreme form of “constitutional hardball”—a term coined by the legal scholar Mark V. Tushnet to describe the exercise of raw political might that, while legally permissible, violates the “assumptions that underpin working systems of constitutional government.” If Democrats gain the Senate and the White House in 2021, they will be faced with the choice of either engaging in reciprocal hardball—by wielding the raw political power to expand the Court, for example—or doing nothing and acquiescing to the breach.

President Trump might not win the November election, but he could still strip his opponent, Joe Biden, of a dominant tool to limit greenhouse gases. The Supreme Court and its reshaping by Trump, who is verging on his third appointment of an anti-regulatory justice, would be a warning to Biden to rely less on the Clean Air Act to reduce emissions of carbon dioxide and other gases. Expansive readings of the landmark environmental law — like the one EPA used to regulate the power sector under President Obama — are unlikely to pass muster with the court's likely 6-3 conservative majority. That would be a problem for former Vice President Biden, who has offered the most ambitious climate change platform in the history of U.S. presidential elections...Joseph Goffman, executive director of Harvard University Law School's Environmental and Energy Law Program and a former EPA official under Obama, said Biden's environment agency would be forced to write legally conservative rules that nonetheless aim for aggressive emissions reductions. "If eventually it is challenged in court, the challenge won't be about whether the agency had too expansive an interpretation of the law," he said. "But would focus on technology issues where I think even a conservative judiciary would be likely to defer to the agency." Goffman, who helped oversee the development of the Clean Power Plan, said it was too early to guess what ambitious inside-the-fence-line regulations would look like. "But it's a little easier to speculate that the agency would look there first rather than to something that would be perceived by the court as an overly creative reading of the statutory language," he said.

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.