Media Mentions

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.

An article by Noah Feldman: The John Roberts show continued today at the Supreme Court. The chief justice cast the deciding vote to overturn a decision by the Montana Supreme Court that barred a state scholarship program from funding education at religious schools. In effect, the decision says that if a state has a program that provides scholarship funding for schools, it has to make those scholarships available to religious institutions — even when the state constitution has a provision barring aid to religion. The conservative ruling followed others in previous years by Roberts. Like those that came before, it took yet another brick out of the wall separating church and state. In the foreseeable future, there may be no wall left at all. The context for today’s decision, Espinoza v. Montana Department of Revenue, goes all the way back to the 19th century and the earliest days of the public school movement. From the start, public schools in the U.S. were labeled as “non-denominational” or “non-sectarian.” As Catholic immigrants began to arrive in large numbers, some of them pointed out that the public schools were effectively Protestant, often featuring Bible readings from the King James version of the Bible and recitation of the Protestant version of the Lord’s Prayer. Catholics sought state funding for their own schools, or, barring that, the elimination of what they saw as distinctively Protestant practices. The response of America’s Protestant majority was essentially to tell Catholics, “No way.” In the run-up to the 1876 election, the Republican Party introduced a federal constitutional amendment that would have gone so far as to bar states from providing any funding to “sectarian” institutions, which meant Catholic ones. There was lots of anti-Catholic rhetoric in the public discussions of the proposed amendment, including on the floor of the U.S. Senate.

Supreme Court Chief Justice John Roberts’ role as the court’s new swing vote has become abundantly apparent in recent weeks, as he has been the deciding justice in several high-profile 5-4 decisions in which he sided with the court’s liberal bloc -- providing hope for Democrats and angering Republicans. The jurist kept court watchers on their toes yet again this week, siding with the conservatives in a tight decision that delivered a win for the school choice movement on Tuesday. But in Monday’s decision in June Medical Services v. Russo, Roberts sided with the liberal members to rule against a Louisiana law restricting who can perform abortions, upholding precedent from a similar case in 2016 in which he was on the other side. This followed his vote in rejecting the Trump administration’s attempt to rescind DACA and his vote in a 6-3 decision that prohibited employment discrimination based on sexual orientation and gender identity...Well-known liberal law professor Laurence Tribe, who taught Roberts at Harvard, expressed pride for his former student after Monday’s decision. “Adding the Louisiana abortion decision to the DACA decision and the LGBTQ decision makes me especially proud of my former constitutional law student, Chief Justice John Roberts,” Tribe tweeted. Roberts' history of separating himself from the court’s conservative contingent in key cases goes back years. In 2012, by siding with the liberal wing and reinterpreting an individual mandate as a tax, he allowed ObamaCare to be found constitutional. Additionally last year he joined with liberals again in shutting down the Trump administration’s efforts to add a citizenship question to the census.

An article by Noah Feldman: You might think this is a bad historical moment to give the president more power to boss around his subordinates. Chief Justice John Roberts disagrees. In a decision that counts as a modest win for the idea of a “unitary executive,” he has written an opinion for the Supreme Court holding that the president must have the power to fire the director of the Consumer Finance Protection Bureau for any reason. The court didn’t strike down the CFPB as a whole, thankfully. The bureau can stay in place. And the court didn’t strike down the organizational form of other independent agencies, like the FTC or FCC, which are run by multi-member, bipartisan commissioners. Roberts limited the decision to the CFPB. Roberts’s moderation here actually echoed his moderation in the Louisiana abortion case handed down today. The CFPB ruling was a moderate decision that conservatives will like, while the abortion decision is a moderate decision that liberals will like. But both reflected Roberts’s commitment to cautious conservatism in the vein of Edmund Burke. He does not favor rapid change — whatever the court’s other conservatives may want. In practice, so long as the CFPB is run by a single director, it can’t be independent in the sense of having its leadership insulated from the president. Either Congress will have to re-form the CFPB by creating a multi-member commission, or else the CFPB will cease to be independent. The stakes of the decision, Seila Law v. CFPB, are particularly high because the case is essentially about whether and how the Constitution allows independent agencies to be shielded from presidential control. That matters when you have a president who has set out to politicize nearly every aspect of decision making, including in areas, like criminal justice, where there is a robust tradition of independence.

An article by Cass Sunstein: On rare occasions, the Supreme Court answers the most fundamental questions, going to the very heart of our constitutional system. In striking down the independence of the Consumer Financial Protection Bureau, the court today did exactly that. Since the founding itself — and with mounting intensity over the 40 years — the United States has been divided over two visions of the Constitution. The first insists that we have a “strongly unitary executive,” which means that the president must be in charge of all those who implement federal law. For those who believe in a strongly unitary executive, all departments, all agencies and all administrators work under one person: the commander in chief. Congress lacks the power to create “independent” agencies, headed by people whom the president cannot fire, and who are not subject to his will. According to the second vision, we have a “weakly unitary executive,” which means that Congress has the authority to restrict the president’s power to control some officials who implement federal law. If Congress wants to create independent regulators, such as the Federal Trade Commission, the Federal Communications Commission and the Consumer Financial Protection Bureau, it’s perfectly entitled to do that. Sure, the president must be allowed to carry out his constitutional functions, meaning that he has to be allowed to control the secretary of State and the secretary of Defense (and perhaps the attorney general). But for those who believe in a weakly unitary executive, Congress is allowed to make some regulators independent of the president.

An article by Eli Nachmany '22: As the COVID-19 pandemic has shifted many universities online for the upcoming fall semester and dramatically increased the number of individuals enrolled in online-learning platforms such as Coursera, one thing is clear: The way we approach higher education in the United States is changing. And President Trump’s recent executive order directing the federal government to consider skills as well as degrees in hiring employees is a big win for those who want our federal workforce to keep pace with that change. To keep the American workforce competitive in the 21st century, we need to be deliberate about how our nation finds and develops talent. In the post-pandemic economic recovery, leveraging all of the educational tools at our country’s disposal is not a luxury, but a necessity. And to that end, the Ivanka Trump–led American Workforce Policy Advisory Board has spearheaded the administration’s advocacy for apprenticeships, online learning, and vocational training as cornerstones of educational reform. We cannot, of course, discount the importance of liberal-arts education. To take one example, Goldman Sachs CEO David Solomon noted last year that the ability to write well is increasingly rare, even at his firm. He praised liberal-arts institutions for equipping students with the communication and interpersonal skills necessary to succeed in the professional world. Any national workforce policy must recognize the importance of these “soft skills.”

An article by Adira Levine '22: In 2018, Congress established the National Security Commission on Artificial Intelligence (NSCAI)—a temporary, independent body tasked with reviewing the national security implications of artificial intelligence (AI). But two years later, the commission’s activities remain little known to the public. Critics have charged that the commission has conducted activities of interest to the public outside of the public eye, only acknowledging that meetings occurred after the fact and offering few details on evolving commission decision-making. As one commentator remarked, “Companies or members of the public interested in learning how the Commission is studying AI are left only with the knowledge that appointed people met to discuss these very topics, did so, and are not yet releasing any information about their recommendations.” That perceived lack of transparency may soon change. In June, the U.S. District Court for the District of Columbia handed down its decision in Electronic Privacy Information Center v. National Security Commission on Artificial Intelligence, holding that Congress compelled the NSCAI to comply with the Federal Advisory Committee Act (FACA). Under FACA, the commission must hold open meetings and proactively provide records and other materials to the public. This decision follows a ruling from December 2019, holding that the NSCAI must also provide historical documents upon request under the Freedom of Information Act (FOIA). As a result of these decisions, the public is likely to gain increased access to and insight into the once-opaque operations of the commission.

In a series of stunning decisions over the past two weeks, Chief Justice John G. Roberts Jr. has voted to expand L.G.B.T.Q. rights, protect the young immigrants known as Dreamers and strike down a Louisiana abortion law. In all three decisions, he voted with the court’s four-member liberal wing. On Tuesday, he joined his usual conservative allies in a 5-to-4 ruling that bolstered religious schools. The decisions may be hard to reconcile as a matter of brute politics. But they underscored the larger truth about Chief Justice Roberts: 15 years into his tenure, he now wields a level of influence that has sent experts hunting for historical comparisons...Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision vindicated Chief Justice Roberts’s statements. “The chief is sending a broader message to both parties, and this time in this case it is the Republicans who take the hit,” Professor Lazarus said. “But the message would be the same if it were the Democrats and their favored position had lost.” The message was this, Professor Lazarus said: “You cannot expect us to behave like partisan legislators.” The abortion case concerned a Louisiana law that was essentially identical to one from Texas that the court had struck down just four years ago, before Mr. Trump appointed two new justices. In dissent in 2016, Chief Justice Roberts had voted to uphold the Texas law. Professor Lazarus said he suspected the chief justice was offended by the idea that a change in the composition of the court should warrant a different outcome in what was, at bottom, the identical case.