Media Mentions

When Amy Cooper, a white woman, called 911 from an isolated patch in Central Park where she was standing with her unleashed dog on Memorial Day, she said an “African-American man” was threatening her life, emphasizing his race to the operator. Moments before Ms. Cooper made the call, the man, Christian Cooper, an avid bird-watcher, had asked her to leash her dog, and she had refused. On Monday, Ms. Cooper was charged with filing a false report, a misdemeanor punishable by up to a year in jail, the latest fallout from an encounter that resonated across the country and provoked intense discussions about how Black people are harmed when sham reports to the police are made about them by white people...People are rarely charged with filing a false police report, legal experts said, because the authorities do not want to discourage the reporting of crimes and because it can be difficult to prove that a person made a false report knowingly. But experts said that the evidence in the case against Ms. Cooper was strong and that it could have broader implications in other instances of white people making false police reports against Black people. “To the extent that this woman was arguably deploying racial stereotypes and weaponizing them, it will make people think twice,” said Nancy Gertner, a Harvard Law School professor and a retired federal judge. “It is a big deal.”

The Supreme Court ruled Monday that states can remove "faithless electors," who vote contrary to the people's wishes, four years after 10 members of the Electoral College broke ranks. The Court unanimously ruled that states can effectively prohibit Electoral College representatives from voting for someone whom they didn't pledge to support. The ruling came from a case in Washington state in which three electors challenged a law that allowed them to be fined for choosing how to cast their ballot...Harvard Law professor Lawrence Lessig, who is representing Chaifalo, denied it was a "good possibility" but said it was possible. "We agree that, of course, the possibility exists that you could flip electors. But look historically at the number of times that could have mattered," Lessig said. "In fact, in the history of electors, there has been one elector out of the 23,507 votes cast who have switched parties against the majority party in a way that could have mattered." Had all the "faithless electors" cast their ballots for Clinton, Trump still would have won the election by more than 60 Electoral College votes. However, swinging 10 electors in five previous presidential races could have changed the results, Lessig said in court papers, according to CNBC. Therefore, it was imperative that the court resolve the issue before November. In a statement to Newsweek, Lessig said that obviously his view (and that of the plaintiffs) of the Constitution differs from the Court's, but he noted he was happy that the question was answered before it created a "constitutional crisis." "But now that the Court has essentially removed 'electors' from the Constitution, it is time we think about why the Electoral College makes any sense at all anymore," Lessig said.

Biotech firm Moderna Inc could reap tens of billions of dollars in sales and stock appreciation if it wins the race for a COVID-19 vaccine. If it loses, the early-stage company’s value could crash. In the meantime, the firm’s chief executive is pocketing millions of dollars every month by selling shares that have tripled in price on news of Moderna’s development progress, a Reuters analysis of corporate filings shows. The sales - by CEO Stéphane Bancel, his childrens’ trust and companies he owns - amount to about $21 million between January 1 and June 26, including $6 million in May. The company’s chief medical officer, Tal Zaks, has cashed out the majority of his available stock and options, netting over $35 million since January, the filings show...Zaks sharply increased the pace of his sales with a new plan he put in place on March 13. That was three days before Moderna announced it had dosed the first human with a vaccine candidate, news that sent its stock price up 24% and signaled that future development milestones might push the shares higher. The sales give the firm’s executives an unusual opportunity to lock in big profits on what could be fleeting market optimism, said Jesse Fried, a Harvard Law School professor who wrote a book about executive compensation. “This may be their one shot at making a boatload of money if the vaccine doesn’t work out,” Fried said. Executives have wide discretion in releasing information, he said, and Moderna’s chiefs have a powerful motivation to “keep the stock price up.” Reuters found no evidence that Bancel, Zaks or Moderna has exaggerated the company’s vaccine progress.

A national advisory panel Wednesday concluded that most recent research involving dogs conducted by the Department of Veterans Affairs was unnecessary and that the agency should do more to justify limited use of canines and improve the lives of those still used. The sweeping report underscored long-standing concerns from lawmakers about the canine experimentation. The report, written by an expert panel convened by the National Academies of Sciences, Engineering and Medicine — an independent agency that advises the government — found that dogs remain important models for four areas of cardiovascular and spinal cord research relevant to veterans’ health. But it strongly urged VA to work far harder at identifying alternatives to laboratory dogs, including trials involving pet dogs and methods and technologies that do not involve animals...But in its final recommendation, the panelists said VA could do much more to improve the dogs’ welfare, including by voluntarily submitting animal welfare inspections to the USDA... “This is one we felt really strongly about,” said committee member Chris Green, executive director of Harvard University’s Animal Law and Policy Program. “If it is absolutely vital that dogs are the only option to conduct an experiment that VA determines to be a valid, necessary biomedical experiment, then you make sure the dogs are treated as well as you possibly can.”

An article by Laurence Tribe: There is a silver lining, or perhaps just bronze, in the way Chief Justice John G. Roberts Jr. joined the Supreme Court’s four liberal justices to strike down an absurdly burdensome and largely gratuitous abortion regulation. Although some advocates of abortion rights fear the chief justice’s approach will open the door to other restrictions on abortion, I believe that Roberts’s analysis, correctly applied, could end up being more protective of abortion rights, not less. At issue in June Medical Services v. Russo was a Louisiana law that required any doctor performing abortions to have admitting privileges at a hospital within 30 miles, a requirement that a lower court found would have resulted in only a single doctor at a single clinic being allowed to perform abortions in the state. Roberts did not approach the case, as his liberal colleagues did, by “balancing” the obstacle that regulation placed in women’s paths against the purported health benefits of the regulation. Such balancing was the approach taken by the court in Whole Woman’s Health v. Hellerstedt in 2016, which struck down a Texas law virtually identical to the Louisiana statute — a ruling from which Roberts dissented. In voting to strike down the Louisiana law, notwithstanding his dissent in the Texas case, Roberts emphasized the importance of precedent. And he said that the correct way to analyze abortion restrictions was the precedent established in 1992 by Planned Parenthood v. Casey, a bright-line test in which the court focused solely on whether the regulation at issue imposed an “undue burden” on a woman’s right to choose.

The Supreme Court issued two momentous opinions last week – but the press coverage only appreciated one of them. A phenomenal panel – Dahlia Lithwick, Ron Klain, and Larry Tribe – joins Harry to break down the Court’s abortion decision in June Medical and its executive power decision in Seila Law. They end with practical reflections on Chief Justice Roberts’s position as the most powerful Justice in a century. And a sidebar of 10 of Tribe’s most famous students toast the master’s retirement.

Pinduoduo (Nasdaq: PDD) is one of the fastest-growing internet companies in the world, nearly surpassing Alibaba and JD in gross merchandise value, active users, and revenue growth in just five years, but is much less well-known to global investors. It sprinted past the trillion yuan GMV mark after less than five years, shattering the 14-year and 20-year records set by Alibaba and JD respectively...Founder and ex-CEO Huang Zheng, a former Googler and serial entrepreneur, became China’s second richest person with a net worth of $45.4 billion dollars, according to Forbes’ Real-Time Billionaires Rankings on June 22. He has expressed his vision for the company as “an exemplification of a multi-dimensional space, seamlessly integrating cyberspace and the physical space. It would be a combination of ‘Costco’ and ‘Disneyland.’” On July 1, Huang unexpectedly announced he would give away nearly 14% of his PDD holdings and step down as CEO. According to a regulatory filing, Huang reduced his personal holdings in PDD from 43.3% to 29.4% that day, worth roughly $14 billion. He still holds near-complete control over PDD, however, as his voting power was only reduced from 88.4% to 80.7%. Additionally, the CEO role in Chinese startups is ambiguous; stepping down from the office is unlikely to have a big impact on Huang’s control, as long as he holds on to his voting power and position as chairman. Also worth mentioning is that PDD does not have a CFO. It constitutes a red flag for the company, according to Harvard Law School corporate governance expert Jesse Fried: “That’s true even if a corporate controller serves as board chair and CEO, but not CFO. But what’s unusual and particularly worrisome here is that the controller is also effectively the CFO.” PDD claims it is looking for a CFO, but has not hired one for years.

The group behind a contentious petition that could curtail net metering nationally dismissed last week thousands of comments filed in opposition to the plan before the Federal Energy Regulatory Commission. The New England Ratepayers Association also revealed in its FERC filing that one of its members is president of an energy company tied to several electric utilities. "[The] arguments Protestors advance are outside the scope of this proceeding and lack merit, and the Commission should promptly grant NERA's Petition," the group's lawyers wrote in the response. The Massachusetts-based nonprofit caused a stir last April when it filed a petition with FERC urging the agency to place net metering under federal jurisdiction. That could effectively upend the widespread practice, which requires utilities to pay rooftop solar owners for the extra electricity they generate and send to the grid (Energywire, April 20)...Ari Peskoe, a director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program who has been critical of NERA's petition, tagged Mitchell in a Twitter post last week asking if the firm president was the same person who signed the affidavit. When Mitchell responded, "Yes," Peskoe asked how long Mitchell has been a member of NERA. "Several years," Mitchell replied. "Do you pay dues to be a member?" Peskoe asked. Mitchell did not respond to that tweet. "I have confidence that FERC staff will read what's been filed in the docket, and FERC will make its decision based on NERA's petition and the actual contents of its opponents' protests," Peskoe said in an email to E+E News. FERC has yet to weigh in on the petition.

An article by Aditi Shah '20: On June 25, the Supreme Court ruled 7-2 that Vijayakumar Thuraissigiam, an asylum-seeker, does not have a constitutional right to habeas corpus review in federal court of his claims that the government violated his constitutional, statutory and regulatory rights in issuing an order for his expedited removal. The decision carries important consequences for noncitizens seeking to ensure the government complies with statutory immigration law and regulations, for the meaning of the habeas writ at large and for the judiciary’s role in holding the executive accountable. In a sweeping opinion, Justice Samuel Alito, joined by four other justices, decided that the limitations on habeas review in 8 U.S.C. § 1252(e)(2) of the Immigration and Nationality Act do not violate the Suspension Clause in Article I of the Constitution or the Due Process Clause of the Fifth Amendment. Specifically, Alito concluded Thuraissigiam lacked a constitutional right to habeas review because he did not request release from detention—the act at the historical core of the habeas writ—and because as an immigrant seeking initial admission, Thuraissigiam’s due process rights are limited to the rights provided by statute, not by the Constitution. Justice Sonia Sotomayor, joined by Justice Elena Kagan, penned a dissenting opinion opposing Alito’s framing of Thuraissigiam’s claims. Sotomayor and Kagan instead interpreted the case law to support Thuraissigiam’s rights under the Suspension Clause and the Due Process Clause to habeas review. In a concurring opinion, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, agreed with the outcome but attempted to cabin the decision’s reach and justify it on narrower grounds.

The mass protests spurred by George Floyd’s killing have been more sustained and widespread than any this country has seen before in response to police abuse. When the initial ones prompted even more police violence—officers driving cars into peaceful demonstrators or beating them with truncheons, using chemical agents and flash grenades to clear crowds for a presidential photo op, pepper-spraying young and old alike—the aggression, much of it captured on video, only inspired more people to join the protests...What police officers spend most of their time doing is enforcing minor offenses, known as misdemeanors. Alexandra Natapoff’s Punishment Without Crime, a damning portrait of the oft-neglected world of misdemeanor enforcement, suggests that changing how we treat such offenses may be the most effective way to reduce unnecessary and costly police–citizen encounters. Scholars, lawyers, and crime-show writers don’t generally pay much attention to misdemeanors. Jaywalking and disorderly conduct don’t make for nail-biting drama or fundamental moral dilemmas. But it’s the misdemeanor system that affects by far the most Americans...Bold reform along these lines is possible—if the political will exists. At the moment, it does. But it often won’t. The politics of crime will far more often favor “tough” over “smart” crime policies. As the Harvard law professor and former deputy attorney general Phil Heyman has remarked, “It takes a little time to explain why one thing’s smart and the other thing isn’t. It doesn’t take any time at all to explain why one thing’s tougher than the next.” The tilt toward toughness is also driven by the fact that the institutional voices on crime policy—police unions, prosecutors, and prison officials—all have a vested interest in promoting longer sentences, more discretion, and more resources for the criminal law–industrial complex.

As shares of biotech firm Moderna soared in May to record highs on news that its novel coronavirus vaccine showed promise in a clinical trial, the nation’s senior securities regulator was asked on CNBC about news reports that top executives had been selling their stock in the company. Jay Clayton, chairman of the Securities and Exchange Commission, responded that companies should avoid even the appearance of impropriety. “Why would you want to even raise the question that you were doing something that was inappropriate?” he said. Notwithstanding Clayton’s statement, there is little public evidence that company leaders slowed their stock selling. Now, corporate governance experts and some lawmakers say the trades could cast a shadow over Moderna, one of the biopharmaceutical industry’s most remarkable stories...Bloomberg in May estimated Bancel’s stake in the company as worth more than $2.2 billion, when measured at Moderna’s peak stock price. He has sold about $17 million worth of shares since Jan. 21, according to the Equilar analysis. Flagship’s 11 percent share of the company was worth $3.2 billion, Bloomberg said, and its sales of Moderna stock represented about 2 percent of that value. Given the large value of those holdings, the relatively small value of stock sales does not raise a major concern, said Jesse Fried, a Harvard Law School professor and expert on executive pay and insider trading. “You don’t want to be exploiting a crisis to make money, but the truth is that any company that is going to sell the vaccine is going to be making money on the crisis,” Fried said, “and that’s great, because we want to incentivize people to wake up early in the morning and stay in their labs late at night coming up with something that will help us.”

An article by Evelyn Douek: At the start of a hearing of the House Permanent Select Committee on Intelligence recently, Rep. Adam Schiff praised representatives from Facebook, Twitter, and Google for having “taken significant steps and invested resources to detect coordinated inauthentic behavior.” The comment passed by without note, as if “coordinated inauthentic behavior”—or CIB, as those really in the know call it—is the most natural thing in the world for tech companies to be rooting out and for members of Congress to be talking about. Such casual use of the phrase is remarkable when you remember that it was only invented, by Facebook itself, around two years ago. It’s more remarkable still once you know, as former Facebook chief security officer Alex Stamos told me on The Lawfare Podcast, that the company was going to call it “coordinated inauthentic activity” but thought it probably best to avoid the acronym CIA, showing the arbitrariness of how some terms of art get created. And perhaps what makes it most remarkable of all is that no one really knows what it means. Most commonly used when talking about foreign influence operations, the phrase sounds technical and objective, as if there’s an obvious category of online behavior that crosses a clearly demarcated line between OK and not OK. But a few recent examples show that’s far from the case. This lack of clarity matters because as the election season heats up, there’s going to be plenty of stuff online that will be varying degrees of coordinated and inauthentic, and as things stand, we’re leaving it to tech companies to tell us, without a lot of explanation, when something crosses over that magical line into CIB. That needs to change.

The latest Economic Impact Payment figures released by the Internal Revenue Service states more than $5.7 billion has been paid out to Arizonans. Adults earning up to $75,000 in adjusted gross income who had a valid Social Security number started receiving the one-time $1,200 payment on April 10 as part of an emergency relief package approved by Congress to help people financially during the coronavirus pandemic. Parents also received $500 for each eligible child. While the report states 3.3 million EIP payments have been given to people in the state so far, not everyone eligible for the funds has received their check...An audit by a government watchdog reported June 25 that nearly 1.1 million coronavirus relief payments totaling around $1.4 billion were sent to dead people. Survivors were asked by the government to return the money in May, but it’s not clear they have to. Some legal experts have said the government may not have the legal right to its return. “I think the IRS will do little or nothing to pursue collection of these payments,” Keith Fogg, clinical professor at Harvard and an expert in tax law, said after the report was released. “The cheapest way for the IRS to collect is offset of a future refund. That avenue will not exist for these taxpayers. I don’t think the IRS will take the somewhat difficult steps to pursue the heirs for this amount of money.”

Whitney Phillips and Ryan Milner speak with Lawfare’s Evelyn Douek and Quinta Jurecic about their new book, You Are Here: A Field Guide for Navigating Polarized Speech, Conspiracy Theories, and Our Polluted Media Landscape. Phillips is an assistant professor in communications and rhetorical studies at Syracuse University, and Milner is an associate professor of communication at the College of Charleston. Here, Phillips and Milner discuss their birds-eye, “ecological” approach to analyzing the online information environment, the role of “internet culture,” and challenges for journalists in understanding and reporting on that culture.

On this episode of Lawfare's Arbiters of Truth series on disinformation, Evelyn Douek and Quinta Jurecic spoke with Darius Kazemi, an internet artist and bot-maker extraordinaire. Recently, there have been a lot of ominous headlines about bots—including an NPR article stating that nearly 50 percent of all Twitter commentary about the pandemic has been driven by bots rather than human users. That sounds bad—but Darius thinks that we shouldn’t be so worried about bots. In fact, he argues, a great deal of reporting and research on bots is often wrong and actually causes harm by drumming up needless worry and limiting online conversations. So, what is a bot, anyway? Do they unfairly take the blame for the state of things online? And if weeding out bot activity isn’t a simple way to cultivate healthier online spaces, what other options are there for building a less unpleasant internet?

The 538 people who cast the actual votes for president in December as part of the Electoral College are not free agents and must vote as the laws of their states direct, the U.S. Supreme Court ruled Monday. The unanimous decision in the "faithless elector" case was a defeat for advocates of changing the Electoral College, who hoped a win would force a shift in the method of electing presidents toward a nationwide popular vote. But it was a win for state election officials who feared that empowering rogue electors would cause chaos...Harvard Law Professor Larry Lessig, who advocates Electoral College reform, told the court that nothing in the Constitution gives states any authority to restrict how an elector can vote, because they act in a federal role when meeting as the Electoral College. Instead of voting for Hillary Clinton, who won the popular vote in Colorado, Micheal Baca cast his vote for John Kasich, the former Republican governor of Ohio. And in Washington state, where Clinton also won the popular vote, three of the state's 12 electors voted for Colin Powell, the former secretary of state. The Supreme Court ruled in 1952 that states do not violate the Constitution when they require electors to pledge that they will abide by the results of the popular vote. But the justices had never before said whether it is constitutional to enforce those pledges. Lessig said he hoped the controversy would encourage more states to adopt a system in which they would assign all of their electors to the candidate who wins the nationwide popular vote for president.

Lawyers representing the New England Ratepayers Association (NERA) on Tuesday filed their response to the almost 50,000 comments opposing the group's petition to federal regulators to effectively upend net metering policies nationwide. In their response, the group defended itself against assertions that utility or other industry interests were behind the petition. "NERA is a ratepayer advocacy organization," the attorneys wrote. "It filed its Petition because ratepayers are being required to pay as much as 20 cents per kilowatt-hour for energy that can be purchased on the market for three cents." They argue broadly that opponents give the Federal Energy Regulatory Commission no legitimate grounds for dismissal or denial of the petition...NERA has generated significant attention in the power sector with its April petition asking FERC to declare "exclusive" jurisdiction over behind-the-meter energy generation. Bipartisan groups of state legislators, regulators, attorneys general, governors and other officials filed almost 100 comments in opposition. Advocacy groups, legal experts and academics filed over 500 comments, while almost 50,000 individuals also commented on the filing, all in opposition to the proposal...Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, who also filed comments opposing the NERA petition, said the group's reply "badly mischaracterizes its opponents' arguments and therefore is not informative." "I have faith that the attorneys at FERC will review NERA's initial petition and the numerous responses in opposition, and FERC will issue an order based on what's actually in the filings," he told Utility Dive in an email.

Facial recognition is having a reckoning. Recent protests against racism and police brutality have shined a light on the surveillance tools available to law enforcement, and major tech companies are temporarily backing away from facial recognition and urging federal officials to step in and regulate...In the midst of the Covid-19 pandemic, some firms have raced to put forward more contactless biometric tech, such as facial recognition-enabled access control. “When we think about all of these seemingly innocuous ways that our images are being captured, we have to remember we do not have the laws to protect us,” Mutale Nkonde, a fellow at Harvard Law School’s Berkman Klein Center, told Recode. “And so those images could be used against you.” The convenience that many find in consumer devices equipped with facial recognition features stands in stark contrast to the growing pressure to regulate and even ban the technology’s use by the government...Some cars, like the Subaru Forester, use biometrics and cameras to track whether drivers are staying focused on the road, and several companies are exploring software that can sense emotion in a face, a feature that could be used to monitor drivers. But that can introduce new bias problems, too. “In the context of self-driving cars, they want to see if the driver is tired. And the idea is if the driver is tired then the car will take over,” said Nkonde, who also runs the nonprofit AI for the People. “The problem is, we don’t [all] emote in the same way."

Harvard professor Annette Gordon-Reed, historian Tim Naftali and Fareed on reconsidering honors and monuments to historical figures with racist legacies.

Amazon.com Inc. fired Emily Cunningham a little before the end of Good Friday, though the human resources rep put it a little differently. “You have ended your relationship with Amazon,” Cunningham recalls being told an hour after her company email account stopped working. She’d been a software engineer at the Seattle headquarters for seven years. The HR rep didn’t cite any deficiencies in her work but said she’d violated company policies. According to Amazon, she’d been breaking its rule against “solicitations.” Cunningham says that’s a policy ignored on a daily basis when it comes to things like selling Girl Scout Cookies in the office. Neither Cunningham nor fellow software engineer Maren Costa, a 15-year Amazon employee fired the same day, were big in the Thin Mints game. But both had been challenging the company’s Covid-19 safety policies and mobilizing others to join them. They’d urged their white-­collar colleagues to rally behind Amazon warehouse workers who’d gone on strike to demand stronger protective measures...In January, Harvard Law School’s Labor and Worklife Program, following a year of discussions among ­working groups of activists and scholars, released a sweeping proposal to reboot labor law from a “clean slate,” including by ending at-will employment, installing elected “workplace monitors” in every U.S. workplace, and establishing a “sectoral bargaining” process à la Europe. Advocates say such a system, in which labor and management hash out industry­wide standards, would help fix one of the flaws baked into the NLRA: As long as collective bargaining rights are limited to the individual companies where workers have won a unionization election, executives have an overwhelming incentive to fight like hell to stop that from happening, and they have cause to fear they’ll be outcompeted by lower-cost rivals if they don’t.

An article by Cass Sunstein: A lot of Americans aren’t taking Covid-19 seriously. They aren’t wearing masks. They aren’t social distancing. They aren’t staying home. That’s one reason that the number of cases is spiking in the South and West. The problem is especially serious in Florida, Arizona, South Carolina, North Carolina, California, Tennessee and Texas, which are reporting the highest numbers of hospitalizations since the coronavirus pandemic started spreading across the U.S. in March. The result is likely to be many thousands of preventable deaths. Why are so many people refusing to take precautions? A key reason is their sense of their identity — their understanding of what kind of person they are, and of the groups with whom they are affiliated. It follows that appeals to adopt responsible practices are unlikely to work unless they take group identity into account. An alarming example: In Alabama, college students have been holding “Covid-19 parties,” including people who are infected and intentionally designed to see who else can catch the virus first. In the last decades, behavioral science has drawn attention to the immense importance of personal identity in motivating behavior. A central idea, pressed by Dan Kahan, a law and psychology professor at Yale University, is that people’s beliefs and understandings are often “identity-protective.” With respect to some risks — such as those posed by climate change, nuclear power and gun violence — people’s judgments about whether a danger is high or low are deeply influenced by their understanding of the group, or tribe, to which they belong. People ask, “Am I the sort of person who thinks and does this, or not?” The answer to that question can be decisive.