Media Mentions

An article by Noah Feldman: The blockbuster Supreme Court term that just ended was a (nearly) unmitigated disaster for movement conservatives. Chief Justice John Roberts declined to overturn precedent on abortion rights. Conservative activist Justice Neil Gorsuch showed he would join the court’s liberals when the statutory text tells him to. The natural question then is, what’s next? What are the implications for the future of the court? The short answer is that the court’s future direction is in flux like no other time in recent memory. And what happens next will be determined by the 2020 election and the justices’ health. The first crucial point here is that, had Roberts and Gorsuch not crossed the court’s ideological lines in the most high-profile cases of the term, we would be looking at an extremely conservative court for the foreseeable future, regardless of the outcome of the November vote. The court has five conservative justices who — until this term — seemed capable of acting as an unassailable voting bloc for the indefinite future. (The oldest, Justice Clarence Thomas, is only 72.) This bloc was formed after Senate Majority Leader Mitch McConnell and the Republican Senate blocked a confirmation vote on Judge Merrick Garland during the Obama administration, allowing a newly elected President Donald Trump to appoint Gorsuch. The retirement of Justice Anthony Kennedy, a swing voter who repeatedly delivered liberal-friendly results on issues like gay rights, abortion, and Guantánamo, then allowed Trump to appoint Justice Brett Kavanaugh, who is (so far) a much more reliable conservative. This conservative majority was the first on the court in nearly a century, and conservative activists anticipated that it would overturn Roe v. Wade and hold the line on cultural issues like transgender rights.

A podcast by Noah Feldman: Jennifer Bradley, the Founding Director of the Center for Urban Innovation at the Aspen Institute, discusses how the coronavirus has changed cities, in some ways for the better. Plus, in his Playback column, Noah gives his take on the Supreme Court's decision on Trump's tax records.

President Donald Trump is expected to announce his final plans to expedite permitting for major infrastructure like oil pipelines and road expansions in Atlanta on Wednesday, a move that environmentalists say will bypass public input. The proposal to update how the 50-year old bedrock National Environmental Protection Act (here) (NEPA) is implemented is part of Trump’s broader campaign to cut environmental regulation to boost industry and fast-track projects that often take years to complete - an effort that has been blocked or slowed down by courts...The White House Council on Environmental Quality (CEQ) proposed the changes to NEPA in January, kicking off a public comment period. Officials had called the proposal “the most significant deregulatory proposal” of the Trump administration. Just last week (here), a federal judge ordered the Dakota Access pipeline to shut down because the Army Corps of Engineers had failed to do an adequate NEPA impact study and the Supreme Court blocked construction of the Keystone XL line from Canada pending a deeper environmental review. The CEQ received over 1 million comments after the January proposal, many of which opposed the changes and offered evidence that they could have “harmful results,” said Caitlin McCoy, a staff attorney for the Harvard Law School Environmental and Energy Law Program. This could make the rule vulnerable in lawsuits, she said. “CEQ will need to show that it grappled with these adverse comments and considered all of the important aspects of making these changes, otherwise aspects of the regulations could be ruled arbitrary and capricious,” she said.

Brandi Collins-Dexter is the senior campaign director at the advocacy organization Color of Change and a visiting fellow at the Harvard Kennedy School of Government. Here, she speaks with Lawfare’s Quinta Jurecic and Evelyn Douek about her new report with the Shorenstein Center, “Canaries in the Coal Mine: COVID-19 Misinformation and Black Communities,” which follows the emergence and dissemination of coronavirus-related mis- and disinformation among Black social media users in the United States. They also discuss Color of Change’s role in the #StopHateForProfit Facebook ad boycott.

Since February of last year, tens of thousands of patients hospitalized at one of Minnesota’s largest health systems have had their discharge planning decisions informed with help from an artificial intelligence model. But few if any of those patients has any idea about the AI involved in their care. That’s because frontline clinicians at M Health Fairview generally don’t mention the AI whirring behind the scenes in their conversations with patients. At a growing number of prominent hospitals and clinics around the country, clinicians are turning to AI-powered decision support tools...Hospitals and clinicians “are operating under the assumption that you do not disclose, and that’s not really something that has been defended or really thought about,” Harvard Law School professor Glenn Cohen said. Cohen is the author of one of only a few articles examining the issue, which has received surprisingly scant attention in the medical literature even as research about AI and machine learning proliferates...Harvard’s Cohen said he wants to see hospital systems, clinicians, and AI manufacturers come together for a thoughtful discussion around whether they should be disclosing the use of these tools to patients — “and if we’re not doing that, then the question is why aren’t we telling them about this when we tell them about a lot of other things,” he said. Cohen said he worries that uptake and trust in AI and machine learning could plummet if patients “were to find out, after the fact, that there’s a rash of this being used without anyone ever telling them.” “That’s a scary thing,” he said, “if you think this is the way the future is going to go.”

One area of significant contention in the state senate's recently passed police reform bill was whether to limit "qualified immunity,"a legal doctrine that protects police and other public employees from lawsuits. Qualified immunity has been both a lightning rod in local and national police reform debates, and a source of confusion about what it actually entails. We turn to Nancy Gertner, a retired federal judge, WBUR legal analyst and senior lecturer at Harvard Law School, on what qualified immunity is, and why many law enforcement officials are trying to hold on to it.

An article by Vivek Wadhwa and Alex Salkever: What if Sundar Pichai had been deported while studying at Stanford University: Would he still have become the CEO of Alphabet? Today, if there are any future Sundar Pichais at Stanford or elsewhere, they are likely packing their bags after the U.S. federal government passed a draconian rule mandating that all foreign students unable to attend classes in person must leave the United States. Eight years ago, we wrote a book about how the U.S.’s backward immigration policies were harming the country and stifling innovation. In “The Immigrant Exodus: Why America Is Losing the Global Race to Capture Entrepreneurial Talent,” we presented copious data detailing how immigrants had made outsized contributions to the U.S. economy in general and to the entrepreneurial and innovation economy in particular. We canvassed dozens of entrepreneurs who were either contemplating leaving the United States or had already left due to visa issues and other challenges caused by an immigration system that had become byzantine, capricious and myopic. To our minds, it could not possibly get worse. But we were wrong. First, the U.S. moved to freeze and possibly end the H-1B worker-visa program. We agree that the program’s limitations caused many problems; but millions of productive U.S. citizens came in via the H-1B, including many from the subcontinent. Then, on July 6, the U.S. Immigration and Customs Enforcement announced that foreign students at U.S. universities must take classes in person for the coming school year or leave the country. Inflicting such a policy on those who would attend classes in person they could safely do so and who have been doing their utmost to advance their education in accordance with current health guidelines not only is unreasonable, wasteful and tyrannical. But, more than this, it is also economically damaging to the United States, and to the rest of the world. If allowed to go through, it could cause lasting damage to global innovation.

All eyes in the international tax world are focused on the last weeks of 2020, when governments are expecting a mad dash of dealmaking over the digital tax conundrum, which has eluded a multilateral solution for years.Officials at the Organization for Economic Cooperation and Development, which is spearheading the negotiations, are hoping the U.S. presidential election, regardless of its outcome, could break a stalemate and allow the U.S. more leeway to participate in a consensus solution. But observers, including those who have participated in past OECD tax efforts, question whether the election, or even a change in administration, would be enough to bridge the gap between the U.S. and Europe before a potential trade war begins. "The biggest thing to expect is conflict," said Daniel Bunn, vice president of global projects at the Tax Foundation, an economic think tank based in Washington, D.C. Robert Stack, a managing director at Deloitte Tax LLP and the former Treasury deputy assistant secretary for international tax affairs, noted that whoever is president in 2021, the changeover between terms could make it difficult for the U.S. to sign off on any agreement. New personnel for former Vice President Joe Biden, if he wins the presidency, won't come in until January, while Mnuchin and other top Treasury officials may not stay through a second term of the Trump administration. Stack spoke during a webinar hosted by the Tax Foundation on July 1...Stephen Shay, a professor at Harvard Law School and a former Treasury official during the Clinton administration, told Law360 that a change in administration could put off any agreement on the most contentious issues for months. Key officials at Treasury — the political appointees who would need to sign off on an agreement — don't understand these tax issues "except at the very highest level," he noted. "It is likely well into 2021 before you get meaningful U.S. engagement and sign off," Shay said. "Biden may be much better organized than his predecessors, but that is an optimistic take."

The American Risk and Insurance Association has announced that “Testing for Adverse Selection in Insurance Markets,” a study co-authored by Harvard Law School Professor Alma Cohen and Peter Siegelman, a professor at the University of Connecticut School of Law, is the recipient of its 2020 Robert I. Mehr Award. The award—granted each year to a study published ten years earlier in the Association’s Journal of Risk and Insurance (JRI)—recognizes studies that have “best stood the test of time” in the decade since publication. Cohen’s research has been cited more than 400 times since it was published in February 2010. The study—which evaluates the empirical literature on adverse selection in insurance markets—was selected by the 2020 editorial board of the JRI for this year’s Mehr Award. In 2011, the study also won the association’s Robert C. Witt Award for the best article published in the JRI during the preceding year. Thus, the article was selected as the best article published in 2010 in JRI both from a one-year and a ten-year perspective by the editors of the JRI serving at each point in time. The authors focus on empirical work that seeks to test the basic coverage–risk prediction of adverse selection theory—that is, that policyholders who purchase more insurance coverage tend to be riskier. They argue that the analysis of this body of work indicates that the existence of such correlation varies across insurance markets and pools of insurance policies, further exploring  reasons why a coverage–risk correlation may not be found in some pools of insurance policies. The article provides a framework for predicting and understanding when the risk of policyholders and the insurance coverage they purchase are associated. It then evaluates based on this framework the body of empirical evidence on the subject.

For the past several weeks, Americans have been greeted daily with agonizing news about the coronavirus pandemic. Not simply from the anguish of the country’s spiraling cases and death tolls, but the incompetence of much of its political culture, too: Governors who flip-flop on mask-wearing, local officials who cave to pressure on public health measures, and a President who long ago stopped attending his pandemic meetings in favor of heaping abuse on his own public health agencies. But some thinkers are exploring how the country could still craft an effective pandemic policy, even in the absence of a federal one. Cass Sunstein is one of those thinkers, a longtime professor at Harvard Law School who has written extensively on the exploding area of cognitive science known as behavioral economics, and its implications for government policy. In 2008, Sunstein published the book “Nudge” along with co-author Richard Thaler, another leading scholar in behavioral economics. Together, Sunstein and Thaler envisioned a marriage of cognitive science and policy at various levels of American government that they dubbed “libertarian paternalism.” To take an example: If the cognitive bias toward “loss aversion” dictates that humans react less often to the prospect of reward than they do to the prospect of losing something they already have, such an insight could be applied to myriad aspects of policy—from “opt-out” schemes for organ donation at the DMV, to the Army’s interactions with the Taliban in Afghanistan. Fittingly, Sunstein ended up doing exactly that, serving in the Obama administration’s Office of Information and Regulatory Affairs from 2009 to 2012, where he sought out creative applications of behavioral economics to the White House policy portfolio. Lately, Sunstein has been advising foreign governments and other organizations on their own behavioral framework for addressing the pandemic, too. In an interview edited for length and clarity, Sunstein tells Washingtonian why pandemics are particularly suited to manipulating human biases, why New Zealand has tapped the cognitive power of fun, and what Texas might be able to teach the country after all.

An article by Noah Feldman: The U.S. Supreme Court term that ended last week was a blockbuster, with landmark decisions on abortion, LGBTQ rights, presidential power, immigration, religious liberty and American Indian law. No term in almost two decades comes close to having issued so many crucial decisions —with long-term consequences for millions of Americans. The drama of the term was enhanced by what you might think of as coming-out events for two justices: chosen transformations that change the way each presents to the world. Chief Justice John Roberts revealed himself to be (or to have become) a genuine, judicial restraint Burkean conservative who is prepared to uphold liberal precedents and to keep the Trump administration subordinate to the rule of law. He surprised liberals and horrified movement conservatives who had hoped he would lead or at least participate in sweeping away liberal precedents they hate. And Justice Neil Gorsuch revealed himself as so highly principled in his commitment to textualist statutory interpretation that he will carry its logic to conclusions that liberals love and conservatives hate. His bid to become the intellectual leader of the conservative wing of the court is going to have a different character than court watchers like me had anticipated. Together, these coming-out events should remind us that the justices aren’t robots, driven by partisan or ideological agendas. They are complex human beings, whose decisions are shaped by jurisprudence, values, beliefs, ideas, emotions and strategies. That’s why they have the capacity to surprise us. Roberts is now the most influential chief justice since the great John Marshall, who held the job from 1801 to 1835.

An article by Sabrineh Ardalan: Asylum lawyers have long grappled with a tension inherent in refugee law – how to win protection for individual clients without reinforcing victim narratives and negative stereotypes about other cultures and countries. Last month, the Trump administration seized upon this tension in a new 161-page proposal that would rewrite the refugee definition and cut off most asylum seekers from protection. Specifically, the rule would make ‘evidence based on stereotypes’ inadmissible – on its face an unobjectionable proposal. Indeed, at a time when we are all called upon to challenge our assumptions, reflect on our biases, and address the ways in which our laws and legal practice reinforce systemic racism, the provision would appear to be both timely and necessary. Yet, because of the corroborating evidence so often required to establish asylum eligibility, the provision would make it difficult, if not impossible, for many to obtain protection. The rule’s wide-ranging provisions include measures to fast-track deportations of asylum seekers, reject asylum applications as frivolous without ever affording asylum seekers a day in court, ratchet up the type of harm required to demonstrate eligibility for protection, and make it extraordinarily difficult to show a connection between the harm suffered or feared and a protected ground,[1] as the refugee definition requires. It would be too much to expect that a timely provision would be responsive to refugees’ plight in the current moment, instead of another cruel attack on asylum.

President Trump has said he learned lessons from President Richard M. Nixon’s fall from grace, but in using the power of his office to keep his friend and adviser Roger J. Stone Jr. out of prison he has now crossed a line that even Mr. Nixon in the depths of Watergate dared not cross. For months, senior advisers warned Mr. Trump that it would be politically self-destructive if not ethically inappropriate to grant clemency to Mr. Stone, who was convicted of lying to protect the president. Even Attorney General William P. Barr, who had already overruled career prosecutors to reduce Mr. Stone’s sentence, argued against commutation in recent weeks, officials said. But in casting aside their counsel on Friday, Mr. Trump indulged his own sense of grievance over precedent to reward an ally who kept silent. Once again, he challenged convention by intervening in the justice system undermining investigators looking into him and his associates, just days after the Supreme Court ruled that he went too far in claiming “absolute immunity” in two other inquiries...Jack L. Goldsmith, a Harvard Law School professor and Justice Department official under President George W. Bush, said those cases could be seen as parallels to Mr. Stone’s commutation but pointed to the larger pattern under Mr. Trump. In 31 of his 36 pardons or commutations, he noted, Mr. Trump advanced his political goals or benefited someone with a personal connection, whose case had been brought to his attention by television or was someone he admired for their celebrity. “This has happened before in a way,” Mr. Goldsmith said. “But there has been nothing like Trump from a systematic perspective.”

Moderna Inc. (NASDAQ:MRNA) is one of the biotech companies that are developing COVID-19 vaccines, and if the company wins, it could earn billions in stock appreciation and sales. However, if it doesn’t succeed, its value could decline. For now, the CEO of Moderna, Stephane Bancel is earning millions of dollars each month through the sales of stock, which has almost tripled in value on COVID-19 vaccine development progress. Since January to June 26, 2020, Bancel’s share sales, which include those held under his children’s trust and companies, have been around $21 million.  Also, Moderna Chief Medical Officer, Tal Zaks, sold most of his available shares in the company since January, earning almost $35 million. Bancel has set a schedule of the sale of his shares under the 10b5-1 plan before the COVID-19 crisis. These kind of stock-sale plans are meant to prevent insider trading from company executives. The plans prevent advance selling from executives who might have knowledge about bad news on the way or putting off selling of stock until when there is a positive announcement. On March 13, 2020, Zaks put in place a new plan which has seen him cash on almost all his interest. This was days before the biotech company announced the first-in-human dosing of its COVID-19 vaccine setting the stock on a 24% surge. Executive compensation experts indicated that these lucrative liquidations are a reflection of the unusual incentives for company executives to highlight development milestones for products that aren’t sold or approved. They stated that an optimistic company statement on COVID-19 vaccines can result in overpaying for stock or create false optimism among health officials and the public. Harvard Law School professor Jesse Fried stated that sales give the executives a rare opportunity to earn big on short-lived market optimism. Fried added that for company execs, this could be chance of profiting should the vaccine fail to work. Normally company executives have discretion of information, and as a result, they have the motivation to keep share prices up.

Disha Verma '21 was set to start her third year at Harvard Law School in the fall. She’s hoping to become an immigration lawyer, a specialty where she feels a personal stake. A native of New Delhi, India, she is one of more than 1 million foreigners studying on an F-1 visa in the U.S. This week she learned she may be subject to deportation since Harvard Law is offering only online classes in the coming term. On Monday the U.S. Immigration and Customs Enforcement (ICE) announced a policy requiring foreign students to leave the country if they are enrolled in online-only classes in the fall. “I think it’s scary and highly disturbing to feel that a place that I have considered home for so many years now can just shut its doors on me,” she says. She doesn’t yet know whether India will allow her to return, given the high infection rates in the U.S. If she does make it to New Delhi, the nine-and-a-half-hour time difference will make it tough to take online classes. She would also have to break her year-long lease in Cambridge...Verma, who earned her B.A. at Harvard before starting law school there, feels profoundly disillusioned by the new ICE policy. “Back in India, people very much still believe that you can come to the U.S. and you can have a great life here,” she says. “I was lucky enough—I got into Harvard and I had the most wonderful experience here. After all of that, it just feels as though someone pulled the rug out from under my feet.”

An article by Rachel Bercovitz and Todd Carney '21: Ruling in Trump v. Mazars on July 9, the Supreme Court held that courts must take into account separation of powers concerns in resolving disputes over congressional subpoenas seeking personal information of the president. The court found that the split panels at the U.S. Courts of Appeals for the D.C. Circuit and the Second Circuit had failed to adequately account for “weighty” separation of powers considerations when rejecting challenges to House committee subpoenas seeking financial records relating to President Trump, his affiliated business entities and his family members. In a 7-2 decision authored by Chief Justice John Roberts, the Supreme Court vacated the judgments below and remanded to the district courts for further proceedings. (The court also ruled in a related but distinct case concerning Trump’s efforts to block subpoenas for his financial records from New York state law enforcement; a summary of that decision, Trump v. Vance, is available here.) The court defined the question presented as a matter of first impression, stating it had “never addressed a congressional subpoena for the President’s information.” Such subpoenas, the court found, “unavoidably pit the political branches against one another.” This is so even when, as in these cases, subpoenas implicate the president in his personal, not official, capacity, or are issued to third parties. While the court affirmed that it is the “‘duty of all citizens to cooperate’” with congressional information requests, the majority found that courts presiding over subpoenas seeking information from the president must account for the “special” separation of powers issues these disputes raise.

The Supreme Court under Chief Justice John Roberts in the term that ended Thursday demonstrated a willingness to buck conservative expectations and a preference for shifting the law by increments rather than sweeping pronouncements. The institutional independence of the Roberts-led court struck notes of stability and caution against a landscape of hyper-partisanship, and tempered conservative notions that President Trump’s nominations had created a fortress on the court...The conservative-majority court delivered wins and losses to both liberals and conservatives alike, though largely without issuing maximalist rulings in either direction. Court watchers attributed this to Roberts’s stewardship...What was perhaps more remarkable than Roberts’s vote in the cases was the decision by Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh, to join Roberts and the court’s liberal wing to form a 7-2 majority and validate a grand jury subpoena for Trump’s tax returns. Roberts was likely heartened that his fellow conservatives' votes allowed the court to avoid issuing the landmark rulings along ideological lines, which would have given the impression of an unduly politicized outcome. But the votes by Gorsuch and Kavanaugh were also likely to deepen the president’s sense of defeat, as the justices’ hard-won confirmation battles raised expectations that a solid right-wing majority would control the court for the foreseeable future...While conservatives did notch clear victories in the realm of religion and the administrative state, many analysts believe Roberts' restrained approach was the reason they did not claim more wins or achieve a more wide-reaching impact. “Obviously, there was some degree of tempering conservatism in outcomes,” said Mark Tushnet, a professor at Harvard Law School.

In May, the North American Scrabble Players Association made a big announcement. Scopely Inc. had agreed to add the official tournament lexicon to its hot new app, Scrabble Go...Within a month, though—and in the wake of the killing of George Floyd and the Black Lives Matter protests around the country—executives at NASPA, supported by some of its membership, were fighting to permanently remove from tournament Scrabble some of the very words they had just fought to gain access to. And this week, Scrabble’s owner, the toy and game giant Hasbro Inc., announced that NASPA would delete “all slurs” from its word list and that the company would rewrite the rules “to make clear that slurs are not permissible in any form of the game.” ...I asked Harvard Law School professor Randall Kennedy about the Scrabble debate...He told me it’s understandably reasonable to be concerned that any deployment of a slur gives the word legitimation. He also said it’s healthy to question the use of words in the current climate around social justice—but not at the expense of other values. “My view is that the context in which a word is used always conditions the meaning of the word,” Kennedy told me. “If you were using a term in a setting in which it’s clear that there is no message being sent, and in fact is an agglomeration, a series of symbols—a, b, c, d, e, and the rest—I don’t see what the problem is. If the word is being used in a way that is demeaning, if the word is being used in a way that is putting down people, I’m against that. But if the word is being used in some other fashion, then that should be recognized and understood.” In his book, Kennedy argues against “eradicationists” who want the N-word to be expunged from the language. Doing so, he told me, would diminish James Baldwin, Mark Twain, “Letter From a Birmingham Jail,” Richard Pryor, Eudora Welty, and more. “I would rather more speech than less. I would rather knowledge than erasure,” he said. “I think there’s going to be a tremendous loss in this campaign of bowdlerization, this campaign of euphemism by dint of punishment if you don’t go along with it.”

The Supreme Court closed a pivotal annual term last week bearing the unmistakable imprint of Chief Justice John Roberts, who embraced the role of institutionalist as he sought to keep the court above nation’s intense partisanship during a time of national upheaval. Over the course of 55 cases decided this year—involving such politically sensitive issues as access to President Trump’s financial documents, gay rights, workplace discrimination and religious exemptions from providing contraceptive coverage—the chief justice was in the majority in all but two decisions...Taken together, the court’s output reflected the overarching message Chief Justice Roberts has sought to deliver since taking the helm in 2005: The judiciary stands apart from the partisanship that consumes its coequal branches of government, Congress and the presidency. “He believes very strongly that people should not look at the court and see Republicans and Democrats, that they not see judges as mere partisans,” said Harvard law professor Richard Lazarus, a longtime friend of the chief justice. “It’s an uphill battle, both against the outside forces, and sometimes within the court itself.” Mr. Lazarus says that goal plays a part in the votes the chief justice casts. In 2016, for instance, he dissented from a 5-4 decision invalidating a Texas law imposing burdensome requirements on abortion providers. But last month, he cast the deciding vote to strike down a similar Louisiana measure, writing that he felt bound to follow the precedent despite his disagreement...When possible, Chief Justice Roberts “doesn’t want 5-to-4. He wants to see 6-to-3 or 7-to-2,” said Mr. Lazarus, whose own recent book on the court is titled “The Rule of Five.”

On the evening of 13 July 2013, a few hours after George Zimmerman was acquitted over the fatal shooting of 17-year-old Trayvon Martin, Alicia Garza logged on to her Facebook account and typed a phrase that would change the world: “#blacklivesmatter”. A few minutes later, she posted again: “Black people. I love you. I love us. Our lives matter.” That Facebook played a small role in the inception of a movement that may have become the largest in US history is the kind of story that the embattled company likes to point to when it makes its case that it does more good than harm. CEO Mark Zuckerberg boasted of the hashtag’s origin on Facebook in October 2019, when he delivered a speech about his view of free expression at Georgetown University. But however much credit Facebook thinks it deserves, the days of utopian thinking about the social media platform’s ability to foster positive social change are gone...Whether Facebook will ever hit upon a more coherent approach to protecting the free expression of the powerless as well as the powerful depends on whether it ever comes to grip with its own role as the largest censor in the history of the world. “Facebook is governing human expression more than any government does or ever has,” said Susan Benesch, a faculty associate at Harvard University’s Berkman Klein Center for Internet and Society. “They have taken on the task of defining hate speech and other unacceptable speech, which is a quasi-sovereign power … and we the public have no opportunity to contribute to the decision-making, as would be the case if the decisions were being made by a government.”

“Dump potatoes in the rivers … Slaughter the pigs and bury them, and let the putrescence drip down into the earth,” John Steinbeck wrote in “The Grapes of Wrath.” “There is a failure here that topples all our success.” Steinbeck’s lament against food waste is eerily relevant today, as supply-chain disruptions from the coronavirus pandemic have continued to force farmers to euthanize hogs they can’t sell and bury excess potatoes. Even before Covid-19, Americans, on average, were tossing away more than a pound of uneaten food per person each day, amounting to some 400 pounds of food thrown out annually. That’s far more than any other wealthy country — about 50% more food waste per capita than France and nearly double that of the U.K. According to U.S. government estimates, the cost of U.S. food waste comes out to $161 billion annually. The environmental costs are abysmal. So the problem of food waste is certainly not new...Lawmakers also need to clear up confusion around expiration dates on perishable foods, which vary wildly from state to state. “Date label confusion wastes massive amounts of food,” said Emily Broad Leib, who directs the Food Law and Policy Clinic at Harvard Law School. “Supermarkets lose about $1 billion a year from food that expires in theory — but not in reality — before it’s sold.” There is currently a bill pending in the House (H.R.3981) that would clear up such confusion and cut down on waste. Introduced by Maine Democrat Chellie Pingree and Washington Republican Dan Newhouse in 2019, it would standardize dozens of different date-labeling laws and give consumers a clearer understanding of how long their fresh foods are safe to eat. According to Leib, the act has been shelved during the pandemic, because standardizing data is time consuming and the benefits would not be realized immediately. But lawmakers have to be thinking about both near- and long-term solutions. Congress would be wise to put this bill back on the agenda and pass it sooner rather than later.