Media Mentions

An op-ed by Noah Feldman: On October 5, Supreme Court Justice Clarence Thomas issued a statement, joined by Justice Samuel Alito, expressing ongoing disagreement with Obergefell v. Hodges, the landmark gay marriage decision, arguing that it stigmatized religious opposition to gay marriage. The statement understandably raised concerns that a growing conservative majority on the court could use religious liberty as a cover to roll back rights for LGBTQ people. It is certainly likely that the current conservative majority will recognize exemptions from anti-discrimination law for religious groups like evangelical Christians. However, even after Justice Ruth Bader Ginsburg’s death, and even if Judge Amy Coney Barrett is confirmed, there are still five votes to protect gay and trans rights under most circumstances, including at work and in marriage. That’s because of 2020’s hugely important Supreme Court decision, Bostock v. Clayton. This ruling extended workplace anti-discrimination law to gay and trans people and makes reversal of 2015’s Obergefell extremely unlikely. The 6-3 decision in Bostock was written by conservative Justice Neil Gorsuch, and joined not only by the court’s four liberals, but also by Chief Justice John Roberts. Technically, Bostock was about a question of statutory interpretation — the meaning of Title VII — while Obergefell was about whether the Constitution guarantees a right to gay marriage. A justice could in theory think that Bostock is correctly decided while Obergefell was not. But there are powerful jurisprudential, as well as political, reasons to think neither Gorsuch nor Roberts would vote to overturn Obergefell.

An op-ed by Cass Sunstein: Have a look, if you would, at this image: Is it a duck, or is it a rabbit? Many people see it as a duck; many others see it as a rabbit. You might see it as one and then as the other, maybe with some effort. You might try simultaneously to see the image as both a duck and a rabbit, but that is not possible. At any moment, it is one or the other; it is not both. If you can easily see it as one and then the other, congratulations. You might be especially creative. The philosopher Ludwig Wittgenstein used the duck-rabbit figure to explain that there is a difference between “seeing that” and “seeing as.” When you see a table, you are seeing “that” it is a table. It just is a table. But when you see clouds in the sky forming an image of a face, you are seeing the cloud formation “as” a face. In the latter case, your own perspective is crucial. If you see a duck, you might think that you are seeing “that.” But you are really seeing “as.” People often confuse the two. Why do some people see a duck, and why do others see a rabbit? A likely answer points to the importance of our preconceptions. For example, researchers have found that people of all ages, and particularly those between the ages of 2 and 10, were significantly more likely to see the image as a rabbit on Easter Sunday...The duck-rabbit image is both puzzling and fun. It also helps us understand current social divisions, including those in both law and politics. Supreme Court nominee Amy Coney Barrett is a “textualist,” committed to following the ordinary meaning of congressional enactments. But what is that meaning? Textualists insist that they see a duck. But it might also be a rabbit.

Despite the recent concerns about coronavirus exposure at the Capitol — and the fast-approaching general election — the Senate confirmation hearing for Supreme Court nominee Amy Coney Barrett is still happening. The hearing will air Monday, October 12, through Thursday, October 15, beginning at 9 am each day...Day one of the hearings will start with opening statements from Barrett as well as from every member of the committee, which is helmed by Chair Lindsey Graham (R-SC) and ranking member Dianne Feinstein (D-CA). Meanwhile, questions for Barrett are slated to take place on Tuesday and Wednesday, and a panel of outside witnesses will testify about her nomination on Thursday. The hearings mark one of the key steps in Republicans’ efforts to rush through Barrett’s nomination just weeks ahead of the general election, and its set-up will be somewhat different from confirmations in the past...An area that Democrats are expected to avoid is a focus on Barrett’s faith, which was a centerpiece of her 7th Circuit hearings, because she’s previously written about it in the context of possible judicial decisions, CNN reports. As Millhiser notes, however, some of the questions during those hearings — including a memorable one from Feinstein — came off as attacks on Barrett’s Catholicism rather than its relationship to her work. “It is fair game to criticize a nominee for their political beliefs, including their opposition to abortion. And it is fair game to criticize someone for political beliefs that are inspired by their religious faith,” writes Millhiser. “But, in a disastrous exchange with the future Judge Barrett during her 2017 confirmation hearing, Sen. Dianne Feinstein (D-CA) appeared to go a step further — seeming to attack Barrett’s Catholicism itself.” Harvard Law Professor Mark Tushnet has noted, though, that it’s possible for lawmakers to ask Barrett about her previous writings about faith and capital punishment without “lapsing into anti-Catholicism.”

President Trump publicly pressured the Justice Department on Friday to move against his political adversaries and complained that Attorney General William P. Barr is not doing enough to deliver results of a probe into how the Obama administration investigated possible collusion between Russia and the 2016 Trump campaign. The delayed report is “a disgrace,” and Trump’s 2016 Democratic opponent, Hillary Clinton, should be jailed, Trump said in a rambling radio interview, one day after he argued on Twitter that his current Democratic opponent, Joe Biden, is a criminal who should be barred from running. Three weeks before the election and as he trails Biden in polls nationally as well as in key states, Trump is issuing a new torrent of threats and demands for federal action against Democrats, including former president Barack Obama, that go beyond his familiar and often erroneous claims of wrongdoing by his perceived political enemies...The president’s calls for the Justice Department to target his political opposition in the heat of a presidential campaign is a jarring moment without precedent in modern American history. But it is in keeping with Trump’s actions when he has faced adversity, which now includes testing positive for the coronavirus last week after for months minimizing the threat posed by a deadly virus that has killed more than 213,000 Americans. “The behavior would be shocking in a normal presidency, but Trump has literally been doing this for years,” Harvard Law School professor Jack Goldsmith, a Justice Department official in the George W. Bush administration, said of Trump’s calls to go after Democrats. “So it is reprehensible, but not shocking.”

Supreme Court Justice and liberal icon Ruth Bader Ginsburg, who recently passed away at the age of 87, was best known for championing women’s rights. But she also leaves behind a remarkable environmental legacy. Harvard Law Professor Richard Lazarus, author of “The Rule of Five: Making Climate History at the Supreme Court,” believes the “classic example” of Ginsburg’s contribution to environmental jurisprudence was the 2007 case Massachusetts v. EPA, which is widely considered the most important environmental case ever decided by the US Supreme Court. This was the case in which the court established that EPA had authority to regulate greenhouse gases under the Clean Air Act, an idea that EPA itself had rejected. No less importantly, according to Lazarus, the case established that a plaintiff who alleged climate injury had the right to bring a case in federal court — “a hugely significant decision in its own right,” according to Lazarus. In several other cases, Ginsburg not only cast the decisive note, she wrote the opinion for the court, which Lazarus says was even more notable. Of the cases for which Ginsburg wrote the opinion for the majority, he adds, the most significant was Friends of the Earth v. Laidlaw. In this case, a group of citizens brought a lawsuit under the Clean Water Act alleging hundreds of violations of mercury emissions rules by the Laidlaw industrial facility in the area around South Carolina's North Tyger River. The Court of Appeals had held that the environmentalists lacked the requisite injury to bring the lawsuit, but the Supreme Court reversed the previous ruling. “Justice Ginsburg wrote a tour de force in that opinion,” Lazarus says. Her opinion not only established that these particular environmental plaintiffs had standing to bring their particular Clean Water Act suit.

After Donald Trump's recent hospitalization, the president and his team took a variety of steps to produce images of a "performative show of strength," as CNN's Brian Stelter put it. Referring to North Korea's political model, Stelter added, "This is the kind of thing you see from strongmen who want to appear to be leading -- it's a 'Dear Leader' sort of approach." A Washington Post report went on to note over the weekend, "[A]nalysts who study authoritarian regimes said critics are right to posit that Trump has borrowed from the playbooks of strongman leaders in his messaging. Ruth Ben-Ghiat, a historian at New York University, said Trump shares the authoritarian urge for "constant public adoration," and she emphasized that he is 'very savvy about how the authoritarian leader-follower relationship works.'" But as important as it is to appreciate the degree to which the Republican incumbent emulates an authoritarian style, the substance of Trump's authoritarian tactics is more terrifying...The Times' report noted that this takes Trump's presidency "into new territory -- until now, occupied by leaders with names like Putin, Xi and Erdogan." Indeed, I made the case last week that if this were happening in another country, the world would look to the United States to condemn the authoritarian antics. Except, in 2020, the authoritarian antics, unlike anything in the American tradition, are coming from our own White House. Jack Goldsmith, who led the Justice Department's Office of Legal Counsel in the Bush/Cheney era and who is now a professor at Harvard Law School, added, "It is crazy and it is unprecedented, but it's no different from what he has been saying since the beginning of his presidency. The only thing new is that he has moved from talking about it to seeming to order it."

Even the judge who struck it down this week doesn’t think this is the end of a rule on methane emissions that the Trump administration has been fighting for three-and-a-half years. On Thursday, October 8th, Wyoming federal judge Scott Skavdahl issued a 57-page decision rescinding an Obama-era rule that limited emissions of methane, a greenhouse gas 30 times stronger than CO2, from oil and gas drilling operations on federal and Indian lands...The decision could have big consequences. If Skavdahl’s ruling stands, and if separate court cases cement the Environmental Protection Agency’s view under the Trump administration that it lacks broad rule-setting authority, then “there will be little hope for a future administration to be able to regulate methane emissions from oil and gas operations without an act of Congress,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, in emailed comments...Yet this isn’t the first time that the Obama-era rule has appeared dead. In September 2018 the Trump administration stripped the meat off it and reissued it as a new, far narrower rule — only for a California court in July 2020 to strike down the skinnier replacement and order the original reinstated. Appeals are ongoing. “The roller coaster has returned to the station, though the Court doubts any of the parties will be exiting the ride just yet,” Judge Skavdahl wrote acerbically of the 3.5-year legal saga. “[I]t is likely this Court's decision will not end this ride but simply serve as a lift hill transporting it to another level.” Vizcarra, too, expects the decision to be appealed.

Andrew Crespo, a Harvard Law School professor, discusses how Justice Ruth Bader Ginsburg's death leaves the court's three remaining liberals looking for new alliances. Steve Sanders, a professor at Indiana University's Maurer School of Law, discusses how two conservative justices used the court's rejection of an appeal, to complain that the court's 2015 same-sex marriage ruling threatens religious liberty. June Grasso hosts.

Twitter announced on Friday — less than 30 days ahead of the US election — that it’s enacting a series of significant changes in order to make it harder to spread election misinformation on its platform. It’s one of the most aggressive series of actions any social media company has taken yet to stop the spread of misinformation on their platforms... “As always, the big question for both platforms is around enforcement,” wrote Evelyn Douek, a researcher at Harvard Law School studying the regulation of online speech, in a message to Recode. “Will they be able to work quickly enough on November 3 and in the days following? So far, signs aren’t promising.” Twitter already has a policy of adding labels to misleading content that “may suppress participation or mislead people” about how to vote. But in recent cases when President Trump has tweeted misleading information about voting, it’s taken the platform several hours to add such labels. Facebook has similarly been criticized for its response time...Douek said that platforms “need to be moving much quicker and more comprehensively on actually applying their rules.” But, she added, if “introducing more friction is the only way to keep up with the content, then that’s what they should do.” The concept of “friction” to which Douek is referring is the idea of slowing down the spread of misinformation on social media to give fact-checkers more time to correct it. It’s also an ideal that many misinformation experts have long advocated. Overall, misinformation experts, including Douek, lauded Twitter for introducing friction by nudging users to think twice before sharing misleading content.

In today's segment of "Bloomberg Equality," Tomiko Brown-Nagin, Harvard University professor of constitutional law, discusses what Amy Coney Barrett's inclusion on the Supreme Court bench could mean for the future of women's rights and diversity. She speaks with Bloomberg's Caroline Hyde, Romaine Bostick and Taylor Riggs on "Bloomberg Markets: The Close."

An article by Emma Svoboda ‘23: As dawn broke on Oct. 6 in Bishkek, the Kyrgyz capital, it was unclear who was running the country. Thousands of protestors had taken to the streets the previous day to protest the results of a parliamentary election widely viewed as fraudulent, which shut opposition parties out of government for the first time in Kyrgyzstan’s history. Photos from the city’s central Ala-Too Square show a sea of people holding up their cell phone flashlights. Later in the evening of Oct. 6, protests turned violent, with police using flash bombs and rubber bullets against protestors; more than 500 injuries were reported, along with at least one death. Demonstrators overtook state security guards and broke into the White House, Kyrgyzstan’s parliamentary building, where they were photographed drinking tea in ransacked government offices. Three days later, after tumultuous protests continued around the country, President Sooronbay Jeenbekov bowed to the pressures of protestors and indicated his willingness to resign. Jeenbekov, in a statement, signaled that he is prepared to step down as president as soon as “legitimate heads of the executive authorities are approved and the country takes the path of legitimacy” and committed to maintaining peace and tranquility in the country. Kyrgyzstan is a mountainous country of 6.5 million people tucked between China and Kazakhstan in Central Asia. Colonized by the Russian Empire in the 19th century, the country gained its independence after the fall of the Soviet Union in 1991. Kyrgyzstan is one of the poorest countries in Central Asia, but also the region’s only true democracy—Jeenbekov came to power in a 2017 election in which he won only 55 percent of the vote, unlike the leaders of neighboring Tajikistan and Turkmenistan who have held onto power with sham elections.

Amy Coney Barrett told a Jacksonville University audience in 2016 that the Supreme Court is unlikely to overturn a woman’s right to an abortion, the key holding of the landmark Roe v. Wade decision. However, Barrett has written law review articles that outline arguments attorneys theoretically could use in trying to strike down that ruling and other precedents, though the writings are analyses that don't urge specific action or say how she would decide specific cases. Among them: She cited legal experts who do not count Roe v. Wade among "superprecedents" – Supreme Court decisions that are so ingrained in American life that they can't be overturned. The potential for Barrett to join a 6-3 conservative majority that could erase the controversial 47-year-old ruling is expected to be one flashpoint during her Senate confirmation hearings scheduled to start Monday...If the Senate confirms Barrett's nomination, could she provide the legal impetus to overturn the ruling? Legal experts who have examined her writings and court decisions offer conflicting scenarios. "I don’t doubt that Judge Barrett would be more prepared to overturn significant Supreme Court precedents than anyone on the current Court other than perhaps Justice (Clarence) Thomas," said Laurence Tribe, a Harvard Law School expert on constitutional law who had a young Barack Obama as a law school researcher.  "Her writing on the subject is admirably candid even if shockingly unconservative," Tribe said. "She strongly believes that a Supreme Court justice who believes a prior decision, whether about the Constitution or about the meaning of an act of Congress, was wrong should feel free to overrule it without any substantial concern for the importance of stability and predictability in the Court’s jurisprudence."

The Harvard Gazette interviewed Beatrice Lindstrom, a clinical instructor at the International Human Rights Clinic, about her still unresolved, decade-long efforts on behalf of the victims of the 2010 cholera outbreak in Haiti.

Facebook Inc.’s announcement Thursday that it had shut down a network of phony accounts attempting to influence the November elections reinforced fears that people are working to use social media to undermine U.S. democracy. But unlike 2016, when most attention focused on campaigns associated with the Russian government, this year’s wave of disinformation is coming largely from President Donald Trump and his American supporters, a growing body of research shows, raising new challenges for social media companies.  Facebook tied the campaign it exposed Thursday to Rally Forge, a U.S. marketing firm hired by Turning Point USA, a conservative youth organization that has already been linked to other attempts to manipulate online political debate, and an advocacy organization called the Inclusive Conservation Group. The social network removed 200 Facebook accounts, 55 pages, and 76 Instagram accounts. It also banned Rally Forge.  The fake accounts, created to look like real Facebook users, posted commentary parroting Trump administration talking points on the pages of news organizations...A study published last week by Harvard’s Berkman Klein Center showed how the president promoted disinformation largely by manipulating the mass media into repeating his claims. “There's no question that the leading force of this disinformation campaign has been President Trump himself,” said Yochai Benkler, the study’s main author, a stance that has been echoed by numerous other experts in the field. Benkler thinks the fixation on social media has overstated its relative importance compared to traditional news media in spreading disinformation. “We always focus on Twitter because that's the new shiny object in the media ecosystem, but when we actually looked at the last six months, Trump uses press briefings and news releases every bit as much as he uses Twitter,” he said.

Anthropologist Mary Gray, who said her research focusing on queer and other underrepresented communities often was seen as a "marginal topic" in some academic circles, never thought she would have access to a grant that would give her over half a million dollars with no strings attached. All that changed when Gray was chosen as one of this year’s MacArthur Fellows, which will provide her with a $625,000 grant from the MacArthur Foundation that she can use in any way she chooses. The fellowship, commonly referred to as the MacArthur “genius grant," counts essayist Susan Sontag, journalist Ta-Nehisi Coates, filmmaker Errol Morris and playwright Lin-Manuel Miranda among its past recipients. This year, there are 21 fellows from fields as varied as astrophysics and choreography, and each will receive the same amount of money, which will be disbursed over five years. Gray, 51, is one of three LGBTQ MacArthur “geniuses” in the Class of 2020 who spoke with NBC News about their work, their plans for the grant money and the diversity of voices in this year’s class. She is joined by writer Jacqueline Woodson and econometrician Isaiah Andrews. “This is for every queer kid out there,” Gray said of her selection. “The last thing I would have thought was that the work I do would be acknowledged in this way.” Gray’s recent academic work explores how the digital economy has transformed labor, identity and human rights. Driving this research is her past research on how queer people in rural America have used the internet to form communities around their identities, which stems from her upbringing in California’s rural Central Valley. She is currently a faculty associate at Harvard University’s Berkman Klein Center for Internet and Society, while also maintaining faculty positions in the anthropology and gender studies departments at Indiana University.

EPA will make a high-stakes courtroom argument today in favor of a more restrictive view of the federal government's authority to control greenhouse gas emissions from power plants. The agency is coming before the U.S. Court of Appeals for the District of Columbia Circuit this morning in a long-anticipated hearing to defend the Trump administration's move last year to undo President Obama's landmark 2015 Clean Power Plan (CPP) and replace it with the Affordable Clean Energy (ACE) rule. EPA claims it can only take regulatory action that can be applied directly to coal-fired power plants, rather than take a systemwide approach championed by the agency under Obama... "What really heightens the risk for the government is that you have two judges on the panel that heard not just the agency making a different argument, but — even if in the end they didn't agree with the 2016 version of the agency's argument — they certainly spent a lot of time themselves examining the play in the joints [of the statute]," said Joe Goffman, executive director of the Environmental & Energy Law Program at Harvard University Law School and a key architect of the CPP. "That 4-year-old experience, I would argue, conditioned any judges who participated in that oral argument to see the language in dispute now as being more flexible than the EPA is now insisting that it is," he added.

A three-judge panel appeared divided Thursday on President Trump’s effort to repeal his predecessor’s regulations on planet-warming emissions from the power sector and replace them with far weaker controls. The United States Court of Appeals for the District of Columbiapanel, with two judges named by President Barack Obama and one by President Trump, could well agree to block the Trump administration’s plan, but the issue is almost sure to reach the Supreme Court if Mr. Trump is re-elected. Even if Mr. Trump loses next month, the arguments by the Environmental Protection Agency laid the groundwork for a protracted legal war over future administrations’ ability to cut the pollution responsible for climate change from the power sector, the country’s second largest source of greenhouse gas emissions... “The Trump administration has really taken a go-for-broke approach,” said Joseph Goffman, executive director of Harvard University Law School’s Environmental and Energy Law Program and a former E.P.A. official under President Barack Obama. If the administration’s arguments prevail, he said, “Then they’ve really advanced a broader project that the Trump administration has been pursuing to not only repeal individual rules, but to narrow the foundation of the federal government in doing any kind of regulation.”

Melissa Lavasani took “microdoses” of illegal psychedelic mushrooms to recover from postpartum depression in 2018. After her condition improved, she wanted others to have access to the treatment, working for months to get a ballot initiative decriminalizing it in front of D.C. voters. Initiative 81, also known as the Entheogenic Plant and Fungus Policy Act of 2020, made the ballot after months of wrangling over its legality and a nationwide debate about policing and the medical value of psychedelic drugs. If D.C. voters approve the measure, the nation’s capital would join a handful of cities decriminalizing certain psychedelic plants and fungi, including those known as “magic mushrooms.” ... Vocal opposition to the measure, which was endorsed by the D.C. Democratic Party earlier this month, has been muted. Rep. Andy Harris (R-Md.), who fought marijuana legalization in the city, said in August that psychedelics had “some very limited medical value,” but added that he was concerned about the potential for abuse...Mason Marks, an attorney and physician who teaches health law at Harvard Law School, said “there will still be many critics, but it’s difficult to argue that decriminalization is a bad idea.” Racial justice protests over police shootings that galvanized the nation this summer have made the ballot initiative more relevant, he said. Lavasani, a D.C. Department of Energy and Environment budget officer, called the initiative the “only police reform measure on the ballot.” “Everyone is looking to see how we can improve policing in our jurisdiction, and this is one way to do it,” she said. “This is one step to ending the war on drugs. This is one way to exercise that will if you want to.”

An article by Ashley Nunes:  Without the heavy footedness and over-exuberant steering of human motorists, self-driving cars might seem to be the answer to all of our woes on the road. Algorithms can’t get drunk, drowsy, or distracted, which are the leading causes of road fatalities and are largely responsible for killing 1.3 million people in traffic accidents every year. They are not prone to road rage, eating while driving, or fiddling with the entertainment system. And they can move faster, yet more safely, through traffic, which decreases congestion. Computerised systems are also better than their human counterparts at choosing the most fuel-efficient route. They accelerate and brake more smoothly. These eco-friendly driving practices collectively save fuel, which ultimately reduces exhaust pipe emissions. This all sounds great. After all, cars, trucks and buses currently account for nearly 30% of the US’s global warming pollution. Motor vehicles are also a major source of air pollution in cities around the world. It is easy to see why some see the precision and predictability that comes from handing control of vehicles to algorithms as a solution to not only the safety issues, but environmental problems that road transport faces. But realising this reality means overcoming numerous challenges. Here are three of them.

Environmental law likely won't get the same attention as abortion or health care at next week's Senate hearings for Supreme Court nominee Amy Coney Barrett. But her confirmation, tilting the already-conservative court even further to the right, could have a major impact on the government's ability to address climate change. Nearly all of President Trump's climate rollbacks have been challenged, and several are likely headed to the high court. And some conservative allies with ties to the fossil fuel industry say they'd like to relitigate a key decision that underpins climate regulations. It's difficult to predict how Barrett would rule on specific cases. Environmental law was not her focus as a professor, and not something she dealt with a lot during her time on the U.S. Court of Appeals for the Seventh Circuit...Barrett's judicial philosophy shows skepticism of government and favors deregulation over regulation, according to Jody Freeman, who directs the Environmental and Energy Law Program at Harvard Law School and also served in the Obama administration. "I think, generally speaking, it's going to be a corporate court — good for business, good for corporations," says Freeman. Barrett is skeptical of federal agencies stretching their authority under laws where Congress hasn't given them clear direction, but Freeman says agencies need flexibility. "Even when Congress passes new laws there are always ambiguities," she says. "There always is new science, new understandings, new risks, new problems, new data. And it's impossible to specify each and every small decision that the agencies make."

Veterans kicked out of the military due to negative behavior related to post-traumatic stress disorder, traumatic brain injury and sexual trauma have been upgrading their discharges after a 2017 law change, but there are potentially thousands of others left without access to care or benefits because of less-than-honorable discharges. The landmark Fairness for Veterans Act, included in the 2017 military funding bill, aimed to help veterans upgrade their discharges. It requires a review from military officials to consider medical evidence to see whether mental illness or injury led to the discharge. Since the measure went into effect, 1,580 veterans have upgraded their discharges through 2019, according to the most recent Defense Department data. Despite the boost and efforts from Congress, some say a shockingly low number of veterans are applying for upgraded discharges...For decades, thousands of veterans with other-than-honorable discharges were turned away from the VA unlawfully, according to a study by Veterans Legal Clinic at Harvard Law School and the gay veterans group OUTVETS, released in March. The mass denial of benefits since 1980 has left about 400,000 at risk without care, the study found. Discharges that are other-than-honorable, including general discharges, are given for misconduct ranging from alcohol abuse, drug use and insubordination, but those infractions rarely result in courts-martial, meaning the service member never has their day in court and never gets due process. Those discharges are referred to as “bad paper” because of the negative consequences they have and the stigma they can carry.