Media Mentions

EPA's move this month to kill federal methane controls for oil and gas could do more than just make it easier for the greenhouse gas to enter the atmosphere. It could also make it harder for the agency to use the Clean Air Act to regulate in the future. That's because EPA's decision in mid-August to roll back Obama-era methane rules includes new guardrails on how EPA can use the Clean Air Act (Energywire, Aug. 14). Specifically, it asserts that before EPA can use the Clean Air Act to limit a new pollutant from a new source category — such as power plants, manufacturing or petroleum development — the agency first must prove that sector is a significant source of whatever pollutant EPA would regulate. The additional requirement — if it survives court challenges — could slow, or even deter, EPA rulemaking. That could prove especially true for regulation of greenhouse gases, where even high-emitting sectors in the United States supply a tiny percentage of the global atmosphere's load of carbon dioxide, methane or other gases. EPA has said it plans to issue proposed criteria later this year. "They're talking about providing regulatory certainty and providing a clearer framework, but they seem to be failing to consider that it could undermine the purpose of the Clean Air Act — that is to undermine its ability to protect public health and welfare and to continuously improve the country's air quality," said Hana Vizcarra, a staff attorney with the Harvard Law School Environmental and Energy Law Program. "It's an opportunity to not regulate." ...Vizcarra said the wording of the Trump administration's move on methane "follows their pattern of slicing and dicing their regulatory authorities" to justify deregulation. The rule deregulates transmission and storage — which were covered under the Obama rule — and employs an equation for climate damage done by methane that looks only at impacts within the United States. The intent is to support a cost-benefit analysis that doesn't demand tougher regulations, Vizcarra said.

While the Science Weekly team take a summer break, we’re bringing you an episode from the archives – one that seems particularly pertinent as the pandemic continues and governments take a more prominent role in our day-to-day lives. Back in 2017, Ian Sample investigated how we’re constantly “nudged” to change how we act. Exploring the psychology, history and ethics of nudge theory, Ian spoke to the Harvard Law School professor Cass Sunstein and Dr. David Halpern, one of the field’s founders, who is currently advising the UK government on nudging during the coronavirus outbreak.

In a move that reform advocates call an alarming turn away from the effort to reduce the role of bail in the criminal justice system — a movement her own campaign embraced two years ago — Suffolk County District Attorney Rachael Rollins’s office is seeking a dramatic increase in bail for a defendant after learning that the Massachusetts Bail Fund was prepared to post the money to free him. Barry Twomey, a 58-year-old homeless Boston man, was arraigned on July 7 on armed robbery charges after he was arrested on July 2 at the South Bay Mall, where two robberies occurred. Prosecutors asked that he be held on $5,000 bail, an amount Boston Municipal Court Judge Eleanor Sinnott agreed to. But when the district attorney’s office learned that the Bail Fund planned to post the $5,000, it filed a request on August 14 for a new hearing at which prosecutors want the court to order a 10-fold increase in Twomey’s bail to $50,000. The nonprofit Bail Fund raises money to free indigent defendants who are awaiting trial, arguing that the legal system discriminates against poor people, who often remain behind bars for months before their cases are heard, while those from more well-off backgrounds have family that can post bail and have them released...On any given day, nearly half a million people who have not been convicted of a crime are held in US jails, according to a report issued last year by the Criminal Justice Policy Program at Harvard Law School. The widespread use of cash bail payments to secure the release of defendants before trial, the report says, “discriminates based on wealth, exacerbates racial disparities, results in over-incarceration, and imposes unnecessary costs on individuals and society at large.”

Despite his racism, his incompetence, his soliciting of foreign intelligence to boost his presidential bids, what may be multiple attempts at obstructing justice, and his undermining of American democracy, Donald Trump is still eligible to serve as president of the United States. And that’s because, like his running mate and their Democratic opponents in the race for the White House, he meets the two main constitutional requirements to serve as commander-in-chief: He’s over 35 and a natural-born citizen. While setting a minimum-age for the president seems somewhat arbitrary, the requirement to be a natural-born citizen is rooted in a xenophobic fear of recent immigrants as potentially disloyal Americans who might be foreign agents. It creates a tiered citizenship both legally and psychologically: Through the “natural-born” clause, the Constitution grants more rights to those who are Americans by birth than those who are Americans by choice. As a result, naturalized citizens are made to feel — whether consciously or not — that they are not actually every bit as American as their natural-born counterparts, despite what they’re told when they swear their allegiance to the United States. “We’re told various stories about our democracy,” Randall Kennedy, a professor at Harvard Law School, said in an interview. “We’re told all citizens are the same. Well, all citizens are not the same because the United States Constitution makes a distinction.” That’s why, as Kennedy has argued, the Constitution should be amended to allow naturalized citizens to serve as president... “What matters to me is that we’re not in the 18th century,” Kennedy said. “We’re in the 21st century and there are millions and millions of people who were born abroad, who have become American citizens, and are willing to give their all to the betterment of this country.”

Students at some for-profit career schools could find themselves paying hefty interest charges when using a credit line offered by PayPal, a group of consumer watchdog groups warned this week. More than 150 small career schools and technical programs, most of which aren’t accredited and are loosely regulated, offer students the option to pay tuition using PayPal Credit, a digital credit line marketed by PayPal Holdings and issued by Synchrony Bank, the groups found. The line, similar to a credit card but without the plastic, currently has an interest rate of about 24 percent, and is typically promoted with a six month, no-interest period. Borrowers are charged interest retroactively if the entire balance isn’t paid by the end of the promotion, a feature known as “deferred interest,” the groups said in a letter to federal regulators...How should I evaluate a technical or career program Students should vet a program before borrowing to fund educational costs. “Any loan for a program of unknown quality is a potential problem,” said Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School’s Legal Services Center. Look for a school that is licensed by the state where it operates, and is accredited by an independent authority (such as one on the list of accreditors recognized by the federal Education Department).

Andrew Lelling has put almost two dozen parents behind bars in the U.S. college admissions scandal. On Friday a federal judge sentenced the most famous of them all, “Full House” star Lori Loughlin. The massive prosecution, which also snared top financial and real estate executives as well as a Napa Valley vintner, is one of the most high-profile led by Lelling, the U.S. attorney for Massachusetts and a self-described “red dot in a blue state.” Appointed by President Donald Trump in 2017, he has brought an ambitious series of controversial cases and drawn sharp criticism from liberals who say he’s sometimes more driven by conservative politics than by crime-fighting. The 50-year-old lawman outraged top Democrats, including Massachusetts Attorney General Maura Healey, last year by bringing obstruction of justice charges against a state court judge for allegedly helping a man slip out the back door of a courthouse to evade federal immigration agents. Last month he defended a new administration rule that barred foreign students from remaining in the U.S. if their universities offered only online classes... His critics see Lelling as a self-righteous foot soldier for the Trump administration, prone to overreach and grandstanding. Nancy Gertner, a senior lecturer at Harvard Law School and a retired U.S. district judge, called the federal case against the state judge “an abomination,” saying in an interview that “there were other ways of doing it without doing violence to the constitutional structure.” ...On Friday he saw Loughlin -- unjustly the “face of the national scandal,” as her lawyer described her -- sentenced to two months in prison for paying $500,000 to get her daughters into the University of Southern California as purported crew stars. But the college case has had mixed reviews, too. Some legal pundits, including Harvard’s Gertner, criticize Lelling’s decision to flip William “Rick” Singer, the corrupt admissions strategist at the top of the scheme, against nonviolent offenders with no criminal records on the lower rungs of the racket. “The way it was handled was overreach from beginning to end,” she said.

An article by Noah Feldman: A new narrative is gradually emerging around the balance of power on the Supreme Court. Chief Justice John Roberts may be the nominal boss and the swing vote; Justice Ruth Bader Ginsburg may be the unlikely octogenarian pop icon; and Justice Neil Gorsuch the newest conservative maverick. But according to this story, the real power on the court isn’t any of these headline-grabbing justices. It’s Justice Elena Kagan, the moderate former law school dean and solicitor general. To conservatives, who are the ones pushing the narrative right now, Kagan is a silent strategic genius, tempting and manipulating pliant conservatives like Roberts and now Gorsuch to betray their Federalist Society origins. After Gorsuch and Roberts voted in June to extend antidiscrimination protections to LGBTQ people, the Wall Street Journal editorialized, “Congratulations to Chief Justice Elena Kagan on her big win Monday at the Supreme Court on gay and transgender rights.” The Journal’s editorial board said that Kagan “might as well be” the chief justice and that her ideas were “all over” Gorsuch’s opinion. Writing about a religious liberty opinion that Kagan joined in July, a conservative commentator wrote that she was “a master tactician.” Offering his “rueful praise,” he bluntly stated, “I wish she were on my side.” A right-wing think tank also condemned “the Kagan court” after the court’s refusal to overturn precedent in 2020’s big abortion case. On the surface, this analysis of Kagan’s rule not only sounds insulting to Roberts and Gorsuch, who doubtless believe that they formed their views entirely on their own. It also sounds paranoid: How could carefully vetted conservatives be deviating from conservative orthodoxy if not for the secret influence of a liberal? It’s also possible to hear some hint of sexism in the suggestion that Kagan has tempted the conservative men of the court to tread the unholy path of centrism.

Housed at the Harvard Immigration and Refugee Clinical Program (HIRC) of Harvard Law School, the Harvard Representation Initiative gives legal advice on immigration to students, scholars, and staff concerned about their immigration status.

Students at some for-profit career schools could find themselves paying hefty interest charges when using a credit line offered by PayPal, a group of consumer watchdog groups warned this week. ... More than 150 small career schools and technical programs, most of which aren’t accredited and are loosely regulated, offer students the option to pay tuition using PayPal Credit, a digital credit line marketed by PayPal Holdings and issued by Synchrony Bank, the groups found. ... Students should vet a program before borrowing to fund educational costs. “Any loan for a program of unknown quality is a potential problem,” said Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School’s Legal Services Center.

The VERIFY team fact-checked what Joe Biden and other speakers said during the final night of the DNC. …  Claim:  Biden said “He’s (President Donald…

The Justice Department will seek to reinstate the death penalty against Boston Marathon bomber Dzhokhar Tsarnaev. A three-judge appeals court panel overturned the sentence last month, ruling that the trial judge did not adequately question jurors. In a statement released Thursday night, U.S. Attorney Andrew Lelling said the Justice Department will go directly to the U.S. Supreme Court and ask justices to review that decision. Lelling said the department hopes to reinstate the original sentence, and avoid a retrial of the penalty phase. Judge Nancy Gertner, a senior lecturer at Harvard Law School and a former federal judge, joined WBUR's Morning Edition to discuss.

Stakeholder-centric capitalism may be the hot new trend in the corporate world, but the concept traces its roots back much further than last year’s headline-grabbing statement from the Business Roundtable. In fact, the US already tried a version of “stakeholderism” back in the 1980s when it introduced “constituency statutes” which allowed companies to consider how an acquisition might negatively affect people and communities as they defended themselves against corporate raiders. Given the myriad global catastrophes that have led to this new wave of stakeholder capitalism, it is safe to surmise that “constituency statutes” did not achieve everything they set out to. Lucian Bebchuk, a Harvard Law professor, has looked more deeply into the issue and has a sobering message. In new research released this week, Mr Bebchuk — along with Kobi Kastiel of Tel Aviv University and Roberto Tallarita of Harvard Law School — found “constituency statutes” to have been an abject failure for stakeholders.

A reader once said to me that Robinhood, the retail brokerage for young people trading on their phones, “is one giant momentum algo.” If you are bored during a coronavirus lockdown and you can’t go to a casino or bet on sports, you might decide to start gambling on stocks instead. If you decide to start gambling on stocks you might download Robinhood, which is, stereotypically, the app for gambling on stocks. If you download Robinhood … then what? You have heard that it might be fun to gamble on stocks, but you do not necessarily know which stocks are fun to gamble on. There are a lot of stocks and they all, from inside an app, look kind of the same. What is the stock discovery mechanism? If you walk into a casino, the layout of the casino will tell you what to gamble on: There are slot machines right in front of you with blinking lights, there are people shouting around the craps tables, etc. ... I was too generous to the CEOs! I shouldn’t have said “and the board.” Lucian Bebchuk and Roberto Tallarita did a study of the Business Roundtable statement and got this hilarious result: To probe what corporate leaders have in mind, we sought to examine whether they treated joining the Business Roundtable statement as an important corporate decision. Major decisions are typically made by boards of directors. If the commitment expressed in the statement was supposed to produce major changes in how companies treat stakeholders, the boards of the companies should have been expected to approve or at least ratify it.

On August 19, 2019 , the Business Roundtable, a collection of CEOs of the country’s biggest companies, at the time helmed by JPMorgan Chase CEO Jamie Dimon, announced a fundamental rethinking of what it means to be a corporate entity in the U.S. Previously, the Roundtable had held that a company’s key obligation was to increase the value of its stock for its shareholders. But the 2019 announcement, signed by 181 business leaders, committed to provide value to the full range of a company’s “stakeholders,” including their employees, their customers, and their communities—as well as shareholders. The move was praised as a monumental step in the idea of corporate responsibility but also held up as a possible empty promise. One year later, how has the commitment held up? It depends on whom you ask. Lucian A. Bebchuk and Roberto Tallarita, researchers at the Harvard Law School Program on Corporate Governance, say it’s been little more than words. They examined promises of stakeholder governance by looking at how involved a company’s board was in the decision to adopt that pledge, and if the board’s corporate governance guidelines were amended afterward to reflect a commitment to bring value to stakeholders.

In 2009, the year Uber launched, FedEx made a change to its business model. The shipping firm had previously relied on independent contractors who owned their own trucks and were paid by the delivery or mile rather than the hour. For years, the company faced an onslaught of lawsuits arguing that the people who delivered mail in a FedEx branded truck and uniform should actually be classified as employees, rather than contractors, and protected by minimum wage and other labor laws. ... As FedEx and other franchises have already shown, the franchise model can serve a similar purpose to the independent contractor model. While there are legitimate uses for both models, says Benjamin Sachs, a professor of labor and industry at Harvard Law School, “they are also schemes to avoid taking responsibility for workers […] And if they offload their responsibility onto someone who can’t bear it, then the driver is left holding an empty bag.”

An op-ed by Cass Sunstein: What if nudges fail? Because of the coronavirus, that question has suddenly become urgent. Efforts to nudge people to wear masks, to engage in social distancing, and to use other protective measures have done some good. But with more than 170,000 deaths, they cannot be counted a smashing success. A nudge is an intervention that steers people in particular directions, but that fully preserves freedom of choice. A GPS device nudges. So does a calorie label or a warning (“this product contains peanuts”). Whenever a nudge fails, there are three major options. The first is to give up — declare victory and insist that freedom worked, because a major point of nudging is to allow people to go their own way. The second is to nudge better. The third is to turn to some other tool, such as a mandate or a ban.

An article Bob Bauer and Jack Goldsmith: The final report on Russian electoral interference by the Senate Select Committee on Intelligence notes “several ways in which hostile actors [are] able to capitalize on gaps in laws or norms and exert influence.” And it highlights in particular the problem posed by “a campaign’s status as a private entity intertwined with the structures of democracy.” The report calls on campaigns to build protections against becoming channels for illicit foreign state influence. It urges future campaigns to “perform thorough vetting of staff, particularly those [with] responsibilities that entail interacting with foreign governments”; “ensure that suspicious contacts with foreign governments or their proxies are documented and can be shared with law-enforcement”; and reject the “use of foreign origin material, especially if it has potentially been obtained through the violation of U.S. law.

"Bloomberg: Balance of Power" focuses on the intersection of politics and global business. A preview of night 3 of the Democratic National Convention, as vice presidential nominee Kamala Harris takes the stage. Guests: Rep. Joyce Beatty, National Urban League CEO Marc Morial, Harvard Law Professor Cass Sunstein, Pattern Energy CEO Mike Garland.

Some Connecticut school districts across the state are getting ready to reopen their doors, but with coronavirus cases rising across the country, more parents are considering keeping children at home, Online learning continues to come with a lot of roadblocks and technical issues for parents, students and teachers. So what is the alternative? How can students get a quality education while still staying safe? ... Guests: ... Elizabeth Bartholet - Morris Wasserstein Professor of Law and Faculty Director, Child Advocacy Program at Harvard Law

An op-ed by Cass Sunstein: In the near future, Congress should create a Commission on Electoral Integrity, with only one task: protecting the U.S. from foreign interference in its elections. That is the unmistakable lesson of Volume 5 of the Senate’s Select Committee on Intelligence report on “Russian Active Measures Campaigns and Interference in the 2016 Election.” Put to one side your own political convictions. Don’t ask whether members of Donald Trump’s campaign worked in concert with Russian officials to turn the election to him.

The one certainty about the Business Roundtable’s “Statement on the Purpose of a Corporation” is that it has elevated that topic to a new height in global policy debates. A year after the BRT announced its new view of purpose on Fortune’s cover, “stakeholder capitalism”—what it means, and what, if anything, should be done to advance it—is a hot issue, sparking hotly opposed views. As the U.S. election approaches, it will only get hotter. The BRT’s statement was prompted by JPMorgan Chase CEO Jamie Dimon, who was then the BRT’s chairman, and was signed by 184 CEOs of major U.S. corporations... “The statement is largely a rhetorical public relations move rather than the harbinger of meaningful change,” say Lucian Bebchuk and Roberto Tallarita of the Harvard Law School in a 65-page article, “The Illusory Promise of Stakeholder Governance.” They argue that the incentives CEOs face have not changed, so their behavior won’t change. The authors also examine corporate behavior when state laws have permitted companies to protect stakeholders other than shareholders; they say they found no evidence that companies do so any more often than when they are not permitted to do so...Bebchuk and Tallarita argue more bluntly that CEOs and directors are seeking more power for themselves. “The support of corporate leaders and their advisers for stakeholderism is motivated, at least in part, by a desire to obtain insulation from hedge fund activists and institutional investors,” the authors say. “In other words, they seek to advance managerialism”—a system in which managers exercise the most power—“by putting it in stakeholderism clothing.” The BRT explicitly denies that its members want to avoid accountability.