Media Mentions

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.

The confirmation of Amy Coney Barrett to the U.S. Supreme Court would produce a 6-3 conservative majority that could have far-reaching implications for federal energy and climate policy, according to several legal experts. Barrett, 48, did not establish a significant environmental track record from her current seat on the U.S. Court of Appeals for the 7th Circuit before being nominated Sept. 26 to fill the open Supreme Court seat created by the recent death of Justice Ruth Bader Ginsburg. As a former law clerk for the late Justice Antonin Scalia, however, Barrett adopted the conservative icon's strict reading of the U.S. Constitution known as originalism and advanced by the Federalist Society, a group dedicated to confirming originalist judges. Several legal experts said that view of the law, which aims to follow closely the original understandings and expectations of the Constitution’s drafters and ratifiers, could make the conservative-tilting high court even less inclined to grant federal agencies like the U.S. Environmental Protection Agency deference in regulating planet-warming greenhouse gases...And with the retirement in 2018 of Justice Anthony Kennedy and the addition of his replacement, Justice Brett Kavanaugh, the court no longer has the same majority that produced the 5-4 decision in Massachusetts. "You could leave Massachusetts v. EPA untouched, but you could drain it of its efficacy by interpreting away the other authorities within the Clean Air Act to address CO2 in any kind of meaningful way," said Joe Goffman, former general counsel in the Obama EPA's Office of Air and Radiation. Goffman said the addition of another conservative justice to the Supreme Court could have major consequences if it eventually decides Clean Air Act legal challenges dealing with the EPA's authority to regulate methane from oil and gas facilities and California's long-held waiver authority to set its own tailpipe pollution standards. "In both cases, they overturned years and decades of the agency's own precedents," Goffman said in an interview. "That means that to the extent it is potentially a jump ball as to what the courts are going to do, you really need to have as many judges that, let's say signed up for the Federalist Society worldview, on the bench in order to increase your chances of winning what could otherwise be a tough challenge."

Amy Coney Barrett's likely ascension to the Supreme Court would affect climate policy beyond shoving the court rightward in the abstract. Why it matters: If Joe Biden wins the presidential election, his regulations and potential new climate laws would face litigation that could reach the high court. If Trump wins, ongoing cases over his dismantling of Obama-era policies could also reach SCOTUS. Whoever wins, a court with a 6-3 conservative majority will issue rulings that undoubtedly have ripple effects...Several analysts point to Barrett's writings that suggest support for "non-delegation doctrine," a legal theory that massively restricts how much power Congress can hand off to executive agencies. A related area: She could take a narrow view of the "Chevron deference," or the idea agencies deserve running room when statutes are vague or silent on a topic. Both matter when it comes to using the Clean Air Act to tackle global warming, because the 50-year-old law does not directly address the topic...Axios also asked Harvard Law School's Richard Lazarus about whether the more conservative court might upend Massachusetts v. EPA: "While the Court sometimes overrules it constitutional rulings, it almost never overrules its rulings on the meaning of federal statutes. I don’t think they would do it here."

On this edition of Your Call’s One Planet Series, we're discussing the Trump administration’s actions to weaken or dismantle environmental regulations that are meant to protect the environment, public health and curb greenhouse gases. Over the past four years, the administration has repealed or weakened at least 100 environmental regulations, including fuel economy standards, rules governing clean air, and the regulation of methane emissions. Guests: Caitlin McCoy, staff attorney with the Environmental and Energy Law Program at Harvard Law School. Sharon Lerner, investigative reporter for The Intercept, covering health and the environment.

Romaine Bostick & Taylor Riggs bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street and tackle the SCOTUS impact on the Affordable Care Act, the delayed TikTok ban and oil's lackluster demand Guests Today: Meb Farber of Cambria Investment Management, Jonathan Gruber of MIT, David Conrod of FocusPoint, Jose Antonio Vargas of Define American, Chris Davis of Davis Advisors, Jason Katz of UBS, Richard Lazarus of Harvard Law School.

Trump's nomination of Amy Coney Barrett, a Circuit Court judge with strong support from conservatives, could spell trouble for landmark judicial holdings about climate change, Pro's Alex Guillén reports. Barrett is considered an "originalist" in the mold of late Justice Antonin Scalia, for whom she clerked in the late 1990s. She has long advocated for the Supreme Court to show more flexibility in overturning past precedents. That could apply to the high court's 2007 ruling in Massachusetts v. EPA that said the Clean Air Act gave EPA the authority to regulate greenhouse gases, Alex reports. At least two justices still on the court have signaled interest in revisiting the climate ruling — Justices Samuel Alito and Clarence Thomas — and other members of the court's conservative wing may also be sympathetic to arguments to reconsider the decision. With a more conservative judge such as Barrett, the court could weaken Massachusetts without overturning it, said Jody Freeman, director of Harvard Law School's Environmental and Energy Law Program and a former Obama White House adviser. That could include "interpreting provisions to require additional cost benefit analysis, taking a limited approach to the 'co-benefits' that come with climate rules, and otherwise making it harder for the agency to regulate greenhouse gases and other pollution," she said in an email. No case has yet advanced far enough for a court to take a position on the scope of EPA’s authority, but if Trump is reelected, that could provide such an opening.

With Judge Amy Coney Barrett poised to become the sixth Republican-nominated justice on the nation’s highest bench, environmental law experts see her influence tipping the scales on energy and climate rules. President Trump tapped Barrett on Saturday, and Trump—with the help of a Republican-led Senate—is intent on swiftly filling the position left by the late Justice Ruth Bader Ginsburg, who was nominated in 1993 by President Clinton, a Democrat (Greenwire, Sept. 26). Barrett, who currently serves on the 7th U.S. Circuit Court of Appeals, has a relatively slim record on climate and environmental matters. But if she is confirmed to the high court, Barrett, 48, likely would lock up a conservative coalition there, legal experts said. That bloc could smooth the path for future environmental rollbacks or make it more difficult to expand emissions regulations through a broad reading of statutory authority. “I view Barrett being added to the court as taking it even further in the direction it was already going,” said Jody Freeman, founding director of the Environmental and Energy Law Program at Harvard Law School. The court “was already headed in the direction of [being] much more skeptical of broad efforts to regulate new problems, to interpret statutes that may be older, to deal with new risks,” she added...That momentum could be a boon for Trump’s legacy of relaxing environmental standards, as a conservative high court likely would be more amenable to his viewpoint in legal challenges to those efforts. Trump has pushed to roll back regulations on vehicle, power plant and industry emissions.

An article by Noah Feldman: Like many other liberals, I’m devastated by Justice Ruth Bader Ginsburg’s death, which opened the way for President Donald Trump to nominate a third Supreme Court justice in his first term. And I’m revolted by the hypocrisy of Senate Majority Leader Mitch McConnell’s willingness to confirm Trump’s nominee after refusing to even allow a vote on Judge Merrick Garland. Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has told associates he plans to nominate. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court. I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them. I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.

When the Business Roundtable last August issued a statement on corporate purpose shifting from focusing on returns to shareholder to satisfying the needs of a broader range of stakeholders, it was treated as momentous news. But were the U.S. CEOs signing the statement serious? Would anything really change? Two academics decided to follow up, contacting the 184 companies where CEOs pledged their support, asking who was the highest level decision-maker that approved the decision – was it the board of directors, the CEO, or an executive below the CEO? Only 48 companies responded, and 47 said it was approved by the CEO, not the board. There’s no reason to believe the picture would be much different in the non-respondents, suggest the researchers, Harvard Law School professors Lucian Bebchuk and Roberto Tallarita. And they argue the fact the boards weren’t involved indicates the CEOs didn’t regard the statement as a commitment to make a major change in how their companies treat stakeholders. “In the absence of a major change, they thought that there was no need for a formal board approval,” they report in a law school publication. Another explanation, of course, is that the CEOs believe the statement is what their corporations are already committed to. In his just-released book The New Corporation, UBC law school professor Joel Bakan writes about how companies have been trying to present a different face in recent years, more compassionate and committed to social ends. “Visit the website of any major corporation and you’ll wonder whether you’ve accidentally clicked on that of an NGO or activist group. These days all corporate communications lead with social and environmental commitments and achievements,” he notes. Whether this is driven by noble impulses, or an attempt to do well financially by doing good societally, or just blarney is up for debate. You, however, may be happier working for a company that is more socially and environmentally conscious, perhaps with a high-sounding purpose and even giving you time off for volunteer activity, as some companies do.

An article by Noah Feldman: As President Donald Trump and Senate Majority Leader Mitch McConnell move to nominate and confirm a conservative Supreme Court justice, progressive Democrats are increasingly talking about packing the Supreme Court in retaliation — increasing the size of the court and adding new, liberal justices to the bench. At a minimum, the idea rests on the heroic assumption that Democrats will win the presidency and both houses of Congress. But that’s not all. History demonstrates the grave difficulty of successfully mustering even majority-party support to add new Supreme Court seats. To pack the court, Democrats would need more than just the prospect of a conservative court. They would need a sustained argument that the court had become fundamentally illegitimate by its composition or its conduct. The archetypal example of attempted court-packing came in President Franklin Delano Roosevelt’s second term in office. Democratic frustration with the court was at a high point. The conservative, libertarian-leaning majority of the court had been striking down progressive wage and hour regulation for three decades during what came to be known as the Lochner era (named for the 1905 case of Lochner v. New York, which struck down a 60-hour work week for bakers). Then, in 1935, the court struck down the two cornerstones of Roosevelt’s New Deal, the National Industrial Recovery Act and the Agricultural Adjustment Act. Roosevelt got no Supreme Court appointments in his first term. In the 1936 election, he won more than 60% of the vote and carried the electoral college 523-8 — a landslide by any measure. The Democrats held a stunning 74 seats in the Senate to the Republicans’ 17, and ruled the House of Representatives by a margin of 334-88.

An article by Cass Sunstein: Here is a paradox. It is pretty easy to predict the voting patterns of new Supreme Court justices. But it can be exceedingly difficult to predict the votes of justices in specific cases, which means that it can be difficult as well to predict how those cases are going to be decided. When President Bill Clinton appointed Stephen Breyer to the Supreme Court in 1994, those who knew Breyer’s work knew that his voting patterns would be moderately liberal — more centrist than those of progressive heroes Justices Thurgood Marshall and William Brennan, but to the left, for sure, of Justice Antonin Scalia. And when President George W. Bush appointed John Roberts as chief justice in 2005, it was clear, from Roberts’ record, that his voting patterns would be moderately conservative — distinctly more conservative than those of Breyer, but distinctly less so than those of Scalia. Something similar can be said about every Supreme Court nominee over the last half-century. At the same time, the court is capable of big surprises. For example, many experts did not predict that in 2015, it would rule in favor of same-sex marriage; that in 2020, it would strike down President Donald Trump’s decision to repeal President Barack Obama’s Deferred Action for Childhood Arrivals program, designed to protect some unauthorized aliens from removal; or that in the same year, it would interpret the Civil Rights Act of 1964 to forbid discrimination on the basis of sexual orientation.

President Trump announced his nomination over the weekend of conservative Judge Amy Coney Barrett as a replacement for Supreme Court Justice Ruth Bader Ginsburg, who died Sept. 18. If Barrett is confirmed by the Republican majority in the Senate, before or after the November election, Trump will have managed to seat three right-wing justices on the country’s highest court and cement an ironclad 6-3 conservative hegemony for a generation to come. That may thrill Trump’s base and the conservative legal movement that has seen the Trump administration fill numerous federal judicial positions with its ideological allies. But Trump’s impact on the Supreme Court has also stirred growing alarm and anger. The president’s critics and opponents are furious over the naked hypocrisy of many of the same Republican senators who blocked President Barack Obama’s nominee in 2016 on grounds that such a weighty decision should not proceed in the middle of an election year. Moreover, Trump’s critics see his latest move as part of a broader autocratic power play. For months, the president has openly called into question the legitimacy of the upcoming election, ahead of which polls show him trailing by a significant margin nationally. A recent article by the Atlantic’s Barton Gellman outlined the all-too-real, looming set of constitutional crises that could follow, should Trump attempt to remain office or question the credibility of the vote. Key to such an attempt would be both Trump’s considerable executive powers and the conservative majority in the Supreme Court, which Trump has already admitted may be crucial to maintaining his place in the White House. It is difficult for the public to see the court as politically neutral “when a primary reason being given in favor of an expedited Senate confirmation hearing is … so the new justice can be there in time to vote in a way that will ensure the reelection of the president who just nominated them,” Richard J. Lazarus, a Harvard University law professor, told The Washington Post’s Robert Barnes.

An article by Vivek Wadhwa: For a moment in time, there was complete harmony in the social media world. US President Donald Trump demanded that TikTok be sold to a US company, and China’s propaganda outlet Global Times tweeted: “The US restructuring of TikTok’s stake and actual control should be used as a model and promoted globally.” China and the US agreed that having foreign companies control commonly used apps not only poses a threat to national security, but also distorts a country’s culture and values. Global Times went on to say, “Overseas operation of companies such as Google, Facebook shall all undergo such restructure and be under actual control of local companies for security concern.” India could learn from both countries, requiring that Facebook India be sold to one of India’s tech tycoons. This would be ones step to ensuring that all data be kept locally and tightly protected, and that the algorithms That determine the information that users will receive - which, after all, influences their behavior - truly reflect India’s culture and values. The soulless geeks of Silicon Valley and the ruthless autocrats of China simply cannot be trusted to do that. In fact, it would conflict with their interests.

The addition of Amy Coney Barrett to the U.S. Supreme Court will maintain the number of female justices, but the composition of the panel continues to look quite different than the rest of America in gender, race and religion as well as on certain key policy issues. If she’s approved by the Senate, Barrett is expected to be another conservative voice on a court that’s mostly white, male and Catholic. In an era of increasing questions about systemic racism in the judicial system, the court may find itself out-of-step with the rest of the country if the November election results in a substantial shift to the left. “Obviously, demography and anything else that shape one’s experience affects how one thinks about the world and thus one’s judging,” said Michael Klarman, a professor at Harvard Law School. “Chief Justice Roberts implicitly denies this when he talks about judges calling balls and strikes, but I think most people acknowledge that a judge’s experience cannot somehow be abandoned when donning robes.” Some of the issues on which the court may come to be at odds with public opinion include abortion, which 79% of Americans say should be legal, at least under certain circumstances, and upholding the Affordable Care Act, which is viewed favorably by 49% of Americans according to a September Kaiser Family Foundation Health tracking poll, compared to 42% who view the law unfavorably.

Disinformation targeting Latino communities is ramping up ahead of Election Day, when the demographic is expected to play a crucial role in key battleground states. Advocacy groups and election security experts alike say material is circulating on social media platforms and online messaging apps that pushes false conspiracies that echo larger disinformation campaigns in English. The misinformation efforts, some of which reflect the QAnon conspiracy theory, are especially critical in Florida, a crucial swing state where polls show Democratic presidential nominee Joe Biden is running behind Hillary Clinton’s 2016 support among Latino voters. Advocates said the misinformation could dissuade Latino voters, who have historically low levels of voter participation, from voting in this year’s election...Oumou Ly, a staff fellow at Harvard’s Berkman Klein Center, said foreign actors are likely propping up these narratives. Officials have warned against similar foreign interference efforts from four years ago heading into the 2020 election. FBI Director Christopher Wray told a House panel last week that Russia is seeking to denigrate Biden’s campaign through social media interference. Much of the disinformation targeting Latino voters has the intent to dissuade their participation in the election, advocates said, including pushing unsubstantiated claims that vote by mail is not secure or the election system can be hacked. The disinformation is targeting Latino voters beyond Florida.

The animated 1998 film Mulan remains one of Disney's all time greatest hits. Fans greeted Disney’s announcement of a live-action reboot starring an all Asian cast with great excitement. But COVID-19 forced the film from the big screen to Disney streaming, and the film’s recent debut sparked controversy both here and in China. At a time when Asian Americans are being attacked publicly — and being erroneously blamed for the coronavirus — 2020 has been fertile ground for significant growth in Asian themed feature films and TV programs, with independent films helmed by Asian directors and Asian actors in lead roles. What is the power of this expansion of representation? And does it especially matter in this moment? Guests: Elena Creef, professor of Women’s and Gender Studies at Wellesley College. She specializes in Asian American visual history in photography, film and popular culture. Jenny Korn, fellow and the founding coordinator of the Race and Media Working Group at the Berkman Klein Center for Internet and Society at Harvard University.

When the framers of the Constitution debated the document’s careful system of checks and balances, they confronted a question that would only become more important over time: Should there be a mandatory retirement age for federal judges? Alexander Hamilton argued against one. Writing in The Federalist Papers, he dismissed “the imaginary danger of a superannuated bench.” Hamilton won out, and the Constitution placed no term limits on the service of federal judges, including the men and (much later) women who would make up the Supreme Court. More than two centuries later, the United States stands alone in its handling of lifetime appointments to its highest court, and the drawbacks of a “superannuated bench” have become ever more clear. Last Friday, Justice Ruth Bader Ginsburg became the third member of the Supreme Court to die in office in the past 15 years. Her death injects a partisan fight over the judiciary into the tempest of a presidential election, and it has brought about a nightmare scenario for Democrats, who have long feared the possibility that a conservative would replace her progressive vote on the Supreme Court and shift the nation’s jurisprudence dramatically to the right. But it also serves as a reminder that only in the U.S. does the balance of so much national power hang on the ability of an 87-year-old jurist to hold out for a few more months against the ravages of disease and the inevitability of life’s natural course... “Everybody who’s thought about designing a constitutional court since 1900 has thought that a retirement age was a good thing. There’s no reason to think that they were wrong,” Mark Tushnet, a Harvard law professor and legal historian, told me. “The existence of tenure until death or choice is extremely rare around the world.” There’s a fairly simple explanation for why the Framers decided against a mandatory retirement age, Tushnet and other legal historians told me: People didn’t live as long back then, and, as Hamilton wrote, few “outlived the season of intellectual rigor.”