Media Mentions

An op-ed by Noah Feldman: The Supreme Court signaled today during oral argument that it won’t be striking down the whole Affordable Care Act as the Trump administration has asked it to do. The swing justices did seem especially eager to make their views clear — and to dispel any public fear that the court’s ever-deepening conservative majority would do now what it failed to do back in 2012 and undo “Obamacare” altogether. That’s probably good news for Republicans, given that the 10-year old ACA is politically popular. And it’s especially good news for Republicans facing runoff elections in Georgia, which will determine control over the U.S. Senate. It will now be much harder for Democrats to argue that Georgians should give both seats to the Democrats to protect or, if necessary, reenact the ACA. In truth, the possibility that the court might listen to the legal arguments of the Trump Department of Justice was always far-fetched. So it isn’t totally fair to quote Mr. Dooley’s famous observation that the Supreme Court follows the election returns. The issue before the court is a little arcane, but it can be summed up with only a little bit of oversimplification. When Chief Justice John Roberts upheld the individual mandate provision of the ACA in 2012, he said the mandate was a tax that must be paid by anyone who didn’t buy healthcare insurance in the private market or on a public exchange. Subsequently, Congress eliminated the penalty entirely. In effect, there is now no longer any penalty for not buying health insurance.

An op-ed by Cass Sunstein: President-elect Joe Biden’s transition team has announced its four top priorities, and no surprise, climate change is among them. For that problem, the social cost of carbon is the straw that stirs the drink. It’s the most important number you’ve never heard of. That number is designed to reflect the monetary equivalent of the damage done by a ton of carbon emissions. For that reason, it is fundamental to decisions about the stringency of coming regulations from the executive branch — governing the fuel economy of cars and trucks, emissions limits for power plants, energy efficiency requirements for appliances and much more. If the social cost of carbon is set high, we’re going to see aggressive regulations, significantly denting the risk of climate change. If the social cost of carbon is set low — well, not so much. In 2009, the administration of President Barack Obama said that the social cost of carbon would be around $52 in 2020. In 2017, President Donald Trump and his appointees slashed that figure to somewhere between $1 and $6. The gap, surprisingly, wasn’t about politics, at least not in any simple sense.

Just as the country cannot seem to agree on whether to wear masks or stay six feet apart, there are also disagreements bubbling up over how to celebrate Thanksgiving. To gather or not to gather? Masks or no masks? Is everyone invited or only a select few? Strong opinions can become a recipe for frustration and disappointment...For other families, however, it won’t be quite so easy to find a solution. In that case, consider it a shared challenge, where everyone’s voice matters. “Look at their underlying interests,” said Daniel L. Shapiro, an associate professor of psychology at Harvard Medical School and McLean Hospital and the author of “Negotiating the Nonnegotiable. How to Resolve Your Most Emotionally Charged Conflicts.” For example, if your relatives want to avoid masks and you don’t, are they worried about autonomy or personal liberty? Or are they exhausted by the pandemic and just want a normal family gathering without worrying about a bunch of rules? The goal is to ask questions, listen and understand where each person is coming from. What probably won’t work “is turning the issue of whether to wear a mask or not into a positional battle,” Dr. Shapiro said.

Since Joe Biden left office almost four years ago, antitrust enforcement has gone from a backwater of Democratic policymaking to a key tool for reshaping the U.S. economy. That trend is expected to continue -- and could even accelerate -- under a Joe Biden administration, according to antitrust experts and those who advised his campaign on competition policy. Biden will take office as progressives have come to see antitrust enforcement as a means for tackling the power of dominant companies and improving economic outcomes for workers. There’s mounting evidence that many industries have grown more concentrated, contributing to such economic woes as income inequality, declining business investment and stagnant wages...Biden economic adviser Ben Harris also has an interest in antitrust and how it can help workers. He is writing a book with Harvard Law School’s Sharon Block titled “Inequality and the Labor Market: the Case for Greater Competition.” It will propose reforms to labor and antitrust laws with the goal of pushing wages higher, making workplaces safer and increasing mobility. Using antitrust law to help workers is one of the policy recommendations from the unity task force, made up allies of Biden and Senator Bernie Sanders of Vermont. The document calls for antitrust enforcers to consider possible harmful effects on labor markets when evaluating mergers.

On November 7, Joe Biden was projected to become President-elect. This news alert provides a high-level review of issues to watch and changes to expect in a Biden administration...The next few years will see significant shifts in U.S. environmental and natural resource law and policy, as well as changes in political and perhaps some career personnel at the U.S. Environmental Protection Agency (EPA) and other federal agencies that establish and implement U.S. environmental regulation. The next six months look to be especially consequential, as the Trump administration seeks to finalize certain ongoing efforts while the new Biden administration identifies and implements early priorities...There are over a dozen, maybe two dozen, different executive orders and many, many guidance documents relevant to environmental policy direction. These do not have the force of law but often direct agencies to take specific actions. The Environmental Law Institute and Harvard Law School’s Environmental and Energy Law Program have produced useful references on this subject. Note that rescinding an Executive Order, which can be done immediately, does not rescind implementing actions, such as new regulations finalized in response to the Executive Order.

Last week, millions of Americans turned to cable news to watch election returns pour in. Some refreshed their Twitter feeds to get the latest tallies. And nearly 300,000 others kept an eye on the YouTube channel of 29-year-old Millie Weaver, a former correspondent for the conspiracy theory website Infowars, who offered right-wing analysis to her followers in a live-stream that carried on for almost seven hours the day after the election. At times, her pro-Trump commentary veered into something else: misinformation. First she aired footage of a man pulling a red wagon into a ballot-counting center in Detroit. That image has been spread widely online by conservatives who contend, without evidence, that it is proof of illegal ballot stuffing. It was, in fact, a TV cameraman pulling his equipment. Then Weaver raised questions with a guest about the integrity of the election, stoking the false theme that the election was rife with fraud...Experts say the streams often occupy an ambiguous gray zone, where it's difficult for the platform's automated detection systems or human moderators to quickly flag this type of content. "That's in part because it's harder to search video content as opposed to text," said Evelyn Douek, a Harvard Law School lecturer who studies the different ways platforms approach content moderation. "It's a lot harder to scrutinize what's going on, and it's a lot more time consuming." ... "Taking a platform-by-platform view of these things is inherently limited," Douek, the Harvard Law School lecturer, said. "What one individual platform can do in the whole of the Internet ecosystem will always be somewhat limited." Yet, she said, platforms have the responsibility "to think about exactly what they can do to help mitigate the harm that their platform can cause."

President Trump’s defiant rhetoric and unprecedented refusal to accept his election defeat have Democrats and the American public feeling increasingly rattled, but there is little reason to believe his actions will change the results, legal and political experts said Tuesday. ... “If it succeeded, it would be a coup,” said Charles Fried, a Harvard Law professor and former US solicitor general in the Reagan administration. “There’s no indication it will succeed, or that anybody expects it to succeed.”

An article by Jeannie Suk Gersen: Among the “firsts” associated with the 2020 election, the most norm-shattering of all will be if the candidate who lost never concedes to the one who won. After the major news outlets called the election for Joe Biden on Saturday, Donald Trump switched from insisting, “I won this election, by a lot,” to claiming that his loss was due to election fraud. Trump’s conduct seemingly has not fazed President-elect Biden as he proceeds into the transition; at the least, it was not a surprise, since Trump spent months making ominous and ungrounded predictions of voter fraud. There is, however, a limit to what Biden’s team can do, particularly in national security, if the Trump Administration holds up a transfer of power, as the head of the General Services Administration has done thus far by not formally recognizing the transition.

The street parties and protests across the nation ignited by the presidential election results have quieted, for now. As the dust settles, scholars and analysts…

President-elect Joseph R. Biden Jr. will use the next four years to try to restore the environmental policies that his predecessor has methodically blown up, but the damage done by the greenhouse gas pollution unleashed by President Trump’s rollbacks may prove to be one of the most profound legacies of his single term. Most of Mr. Trump’s environmental policies, which erased or loosened nearly 100 rules and regulations on pollution in the air, water and atmosphere, can be reversed, though not immediately. Pollutants like industrial soot and chemicals can have lasting health effects, especially in minority communities where they are often concentrated. But air quality and water clarity can be restored once emissions are put back under control. That is not true for the global climate. Greenhouse pollution accumulates in the atmosphere, so the heat-trapping gases emitted as a result of loosened regulations will remain for decades, regardless of changes in policy. “Historically, there is always a pendulum to swing back and forth between Democratic and Republican administrations on the environment, and, theoretically, the environment can recover,” said Jody Freeman, a professor of environmental law at Harvard and a former adviser to the Obama administration. “You can put rules back in place that clean up the air and water. But climate change doesn’t work like that.” Moreover, Mr. Trump’s rollbacks of emissions policies have come at a critical moment: Over the past four years, the global level of greenhouse gases in the atmosphere crossed a long-feared threshold of atmospheric concentration. Now, many of the most damaging effects of climate change, including rising sea levels, deadlier storms, and more devastating heat, droughts and wildfires, are irreversible.

The question has lingered around the edges of the pop-culture ascendancy of Alexander Hamilton: Did the 10-dollar founding father, celebrated in the musical “Hamilton” as a “revolutionary manumission abolitionist,” actually own slaves? Some biographers have gingerly addressed the matter over the years, often in footnotes or passing references. But a new research paper released by the Schuyler Mansion State Historic Site in Albany, N.Y., offers the most ringing case yet. In the paper, titled “‘As Odious and Immoral a Thing’: Alexander Hamilton’s Hidden History as an Enslaver,” Jessie Serfilippi, a historical interpreter at the mansion, examines letters, account books and other documents. Her conclusion — about Hamilton, and what she suggests is wishful thinking on the part of many of his modern-day admirers — is blunt...The evidence cited in the paper, which was quietly published online last month, is not entirely new. But Ms. Serfilippi’s forceful case has caught the eye of historians, particularly those who have questioned what they see as his inflated antislavery credentials. Annette Gordon-Reed, a professor of history and law at Harvard and the author of “The Hemingses of Monticello,” called the paper “fascinating” and the argument plausible. “It just shows that the founders were nearly all implicated in slavery in some way,” she said.

As people and markets around the world brace for Joe Biden’s move into the White House, a key factor is what the veteran Democratic politician could accomplish without having to work with Congress. Biden is widely expected to make use of executive orders that affect health care , the energy sector and other areas. “Biden will presumably be at least as active in issuing Executive Orders as was President Obama, or President Trump for that matter,” said James Lucier, an analyst and managing director at Capital Alpha Partners, in a note. Below are some preliminary expectations around such orders or related executive actions...Biden is expected to push in some way for some forgiveness of student loans, having called during his White House campaign for the cancellation of a minimum of $10,000 in such loans per borrower while also proposing other programs that target student debt. Attorneys from Harvard Law School’s Project on Predatory Student Lending argued in a September letter that the executive branch has the authority to cancel student debt.

On Monday, cable outlet One America News Network posted two videos to its YouTube account titled “Trump won.” The clips echoed several others telling viewers, falsely, that U.S. President Donald Trump was re-elected and that the vote was marred by fraud. YouTube added a label noting that the Associated Press called the election for Joe Biden. But the world’s largest online video service didn’t block or remove the content. That approach differs from Twitter Inc., which has hidden conspiratorial election posts behind warnings. A few months ago, YouTube released a detailed policy prohibiting manipulated media and voter suppression, but left one gap: Expressing views on the election is OK. The result has been an onslaught of videos aiming to undermine the legitimacy of the election, according to online media and political researchers. Some of this material has spread on other social networks. And several clips, like the two OANN videos on Monday, ran advertisements, profiting from a Google policy that lets content framed as news reporting or talk shows cash in. “YouTube saw the inevitable writing on the wall that its platform would be used to spread false claims of election victory and it shrugged,” said Evelyn Douek, a lecturer at Harvard Law School who studies content moderation and the regulation of online speech. One YouTube video claiming evidence of voter fraud in Michigan has more than five million views. Another posted by Trump was selectively edited to appear as if Biden is endorsing voter fraud. That has over 1.6 million views. One of the OANN clips was watched 142,000 times in seven hours on Monday, while the other got 92,000 hits in that time.

With a new occupant in the White House, the National Park Service may get something it never had under President Trump: a permanent director. Sources say at least three candidates are now on the short list to lead the agency: Cassius Cash, the superintendent of Great Smoky Mountains National Park in Tennessee and North Carolina and a 10-year agency veteran; Christine Lehnertz, president and CEO of the Golden Gate National Parks Conservancy in San Francisco and the former superintendent of Grand Canyon National Park in Arizona; and Mike Reynolds, director of the Interior Department's Lower Colorado Basin, Upper Colorado Basin and Arkansas-Rio Grande-Texas-Gulf regions... "The last four years have been brutal for our national parks and public lands," said Theresa Pierno, president and CEO of the advocacy group National Parks Conservation Association. She said running the agency without a permanent director created "instability and damage that could take years to reverse," with the Interior Department emphasizing development of public lands over the protection of parks. A Harvard University study echoed that assessment last month, calling the absence of a permanent director "the largest challenge facing NPS." Among other things, the study said NPS staff had been "disempowered," while "the level of centralized decision making at NPS is unprecedented," with Interior Secretary David Bernhardt making decisions that typically would be delegated to the agency's director (Greenwire, Oct. 21). "The presence of acting directors has decreased accountability and steered the Service away from its core mission of preserving the parks," said the study, conducted by the Harvard Law School Environmental and Energy Law Program.

Uber, Lyft, DoorDash, and California’s other gig companies emerged victorious Tuesday night, as voters endorsed a ballot measure that allows them to continue to treat hundreds of thousands of workers as independent contractors. Fifty-eight percent of the state’s voters approved Proposition 22, which repudiated a recent state labor law that would have required the companies to hire their drivers and delivery people as employees—and pay them traditional benefits, including health care, sick pay, and workers’ compensation. With a $200 million campaign, the companies pulled off what once seemed unlikely: reversing the work of state lawmakers and courts, which had sided against Uber and its peers...The urgency made sense: The gig companies believed that treating their workers as employees would disrupt the disruptors, driving their already precarious business models over the brink. One Barclays analysis estimated that shifting Uber and Lyft drivers to employee status in California would cost the companies hundreds of millions of dollars annually. The companies had threatened to leave California, or at least temporarily shut down service in the state, if they had lost...The gig companies, which made their names by exploiting legal loopholes and gray areas, have found another way to win. “California is, in some sense, a bellwether for the gig economy,” says Benjamin Sachs, a professor of labor and industry at Harvard Law School. The companies’ willingness to spend big in the state, he says, proves how important the labor fight is to them, and how much they have to lose...Labor advocates say that reordering the country’s labor regime may prove a slippery slope. Companies are more likely to “downgrade” employees to quasi-independent contractor status than “upgrade” independent contractors, says Sachs, the law professor. That would make it harder for American workers to access benefits and protections.

A new report released Monday documents the use of incendiary weapons and their horrific human cost on civilians over the past decade in conflict zones like Afghanistan, the Gaza Strip and Syria, with Human Rights Watch and Harvard’s Human Rights Clinic calling on nations to close loopholes in international law and stigmatize their use. The report says the weapons, which may include white phosphorus, inflict excruciating burns and can lead to infection, shock and organ failure. Often, medics also do not have adequate resources in war zones to assist victims with serious burns. White phosphorus burns until it’s gone. It can burn right down to the bone, leaving victims in chronic pain and with permanent disabilities and scarring. The report by Human Rights Watch and Harvard Law School’s International Human Rights Clinic notes that burn victims sometimes need to be intubated in order for intensive wounds to be treated and dead skin scraped away. They may also require multiple surgeries and intense physical therapy to regain mobility...The report said the ongoing human suffering caused by incendiary weapons underscores the need for stronger international law. It urged countries to take concrete action at next year’s conference on the Convention on Conventional Weapons to condemn and continue to raise awareness about the use and harm of such weapons, as well as to block loopholes in existing protocols.

The street parties and protests across the nation ignited on Saturday by the presidential election results have quieted, for now. President Trump and the vast majority of Republican political leaders have steadfastly refused to concede, with some vowing to pursue congressional investigations of the balloting and a notable few like, former President George W. Bush and Utah Sen. Mitt Romney, offering their congratulations to President-elect Joe Biden and Vice President-elect Kamala Harris...The dust is beginning to settle, but much is still unclear. The Gazette turns once again to scholars and analysts across in the University to get their views of what happened and what comes next...Sandy Levinson: “The election of Joe Biden certainly means that a majority of the electorate has had it with Donald Trump. That being said, one should acknowledge that Biden’s ‘coattails’ were minimal. Although we won’t know for sure about control of the Senate until the two Georgia runoffs in January, it would be near-miraculous if Georgia fired both of its incumbent Republican senators in favor of distinctly more liberal Democrats. So we should assume that once again we will be faced with a ‘divided government,’ where Republicans in the Senate will be able to stymie most legislative programs passed by the House and supported by the president. And Republicans will have the power to do that only because of the scandalously undemocratic (and not only un-Democratic) reality of the U.S. Senate, which allocates equal voting power to Wyoming and California, Vermont and Texas. President Biden, like his immediate predecessors, will draw on all of his purported executive powers. That will not be good for the country inasmuch as it will only further confirm the reality of a truly dysfunctional Congress and exaggerated hopes placed in presidents who, even if they are not authoritarians, feel compelled to push the envelope of what might be described as near-dictatorial powers.“

An op-ed by Noah Feldman: If the Supreme Court takes on a case connected to the outcome of the presidential election, Justice Amy Coney Barrett will face the most important decision of her career: not how to vote, but whether to participate at all. The situation is unprecedented. Never before has a president explicitly stated that he is choosing a justice so that she will be able to adjudicate that president’s own immediate re-election. And while there are arguments both for and against recusal, the argument for recusal is stronger. The one Supreme Court case that is most directly relevant is 2009’s Caperton v. A.T. Massey Coal Co. It involved a West Virginia judge who was elected after receiving $3 million in campaign contributions from the chairman of a company appealing a $50 million penalty. The chairman knew whichever judge won the election would review his appeal. The Supreme Court held, in an opinion by Justice Anthony Kennedy, that the due process clause of the Constitution was violated when the judge chose not to recuse himself and participated in the appeal that reversed the $50 million verdict against the company. The vote was 5 to 4, with Kennedy joining the court’s (then) four liberals to form a majority. In a fascinating op-ed in the Washington Post last month, retired conservative judge J. Michael Luttig — who didn’t care for the outcome in the Caperton decision — nonetheless argued that the decision likely obligates Barrett to recuse herself from participating in a 2020 election decision involving President Donald Trump. He emphasized the crucial sentence from Kennedy’s opinion: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the other parties’ consent — a man chooses the judge in his own cause.”

Since Election Day, President Trump has stayed on the attack, repeatedly accusing Democrats of seeking to steal the election and calling the continued counting of votes a “fraud on the American public.” He has said he would appeal to the Supreme Court to intervene, and promised to carry on the fight. Now, with Joe Biden declared the next president, Trump has a choice: Will he concede, making the hard and humiliating choice all his predecessors as presidential also-rans have had to make? Or will he continue to wage a scorched-earth battle in an effort to overturn the results or to poison the well as Biden takes over? ... No matter what he hears, Trump is facing legal peril if he leaves office and loses his immunity from prosecution as a sitting president. Trump is facing two investigations by law enforcement officials in New York. Manhattan District Attorney Cyrus Vance Jr. and New York’s attorney general, Letitia James, have been independently investigating potential crimes in Trump’s business practices before he became president...Jack Goldsmith, a professor at Harvard Law School, said it’s unclear whether a president could pardon himself. “The question is entirely novel,” he said. “The Justice Department has suggested in passing, without analysis, that a president cannot self-pardon. Scholars are all over the map.” But presidential pardons don’t extend to charges emerging from state investigations. If Trump were to try to escape charges by fleeing to another country, it’s unclear what would happen. Trump has mused about leaving the country if he loses. “Extradition treaties will determine this,” Goldsmith said. As the president continues to discredit the election results, the future of the nation’s democracy could hang in the balance.

President Trump will leave the White House with a massive social media following that he could use to shape the nation’s politics throughout his successor’s administration and beyond. When Trump started his first campaign in 2015, he had just 3 million Twitter followers and 10 million on Facebook. But should Democrat Joe Biden’s apparent electoral edge withstand legal challenge, Trump would leave office with a singularly powerful online megaphone — at least 88 million followers on Twitter, 31 million on Facebook and 23 million on Instagram — that will give him a unique ability to communicate his thoughts to legions of supporters accustomed to hearing from him more than three-dozen times a day...One critical test of whether Trump’s megaphone will be as potent after he leaves office will be whether he can forge the same close alliance with Fox News that he enjoyed during his presidency, said Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at Harvard University and an expert on the news media and misinformation. Fox pundits have consistently repeated White House talking points, as has the news side of Fox, Benkler said, giving significant credence to and amplification of Trump’s messages. Another issue will be whether Trump tries to capitalize financially on his audience in the months ahead, Benkler said. He suggested Trump could go into competition with Fox if he doesn’t regain the same level of support following a bruising election in which the president and his allies criticized the network for its polling and its election-week declarations about which states had been won by Biden. So far, he said, the news network has shown “restraint,” in its coverage of the Trump campaign’s allegations of voter fraud and attempts by Democrats to steal the election. “But I’m not sure it will hold,” he said.

Years of anger and anxiety over Donald Trump’s presidency were released in a giant nationwide rush of elation Saturday as throngs of supporters celebrated in the streets of Boston, Washington, and other cities within moments of Joe Biden being declared the winner of the 2020 election. Dancing down the sidewalks of Harlem, fireworks in Atlanta, champagne toasts in Louisville. In the nation’s capital, a defeated Trump was greeted on his return from a morning of golfing by a throng of jeering protesters outside the White House, while a brass band entertained a jubilant crowd nearby. Even for those who were not ardent Biden supporters, the day brought a sense of relief. After four excruciating days of the presidency hanging on the slow drip of returns in just a few cities, Americans had closure on one of the great questions facing a torn nation...Mazelle Etessami ‘22, a second-year student at Harvard Law School, said Biden’s victory felt like “a weight off your shoulders,” even as she wondered what would come of the country’s deep partisan divides. “We have a lot of work to do across the aisle, but I think this is a moment for democracy,” Etessami, 24, said on Saturday afternoon as she weaved through a lively crowd assembled in Harvard Square. “Today we celebrate, and tomorrow we get to work.”