Media Mentions

A controversial petition urging the Federal Energy Regulatory Commission to assert exclusive jurisdiction over state programs that pay homeowners for solar power they generate and put on the grid has spurred the latest tug of war between state and federal electricity authority. A group known as the New England Ratepayers Association wants FERC to find that "behind the meter" electricity sales, currently treated as retail electricity sales and priced by state utility regulators in programs known as net metering, are wholesale power sales subject to FERC's exclusive jurisdiction. The petition also wants FERC to declare any state retail net metering laws unlawful...A declaratory order from FERC doesn't carry any force of law, so states wouldn't be forced to scuttle their net metering programs if the agency grants NERA's petition. But experts say it would give opponents of net metering a powerful piece of ammunition to launch legal challenges to net metering programs at both the state and federal level. "It would trigger a wave of proceedings at the state public utility commission level to try and change the rules," said Ari Peskoe, who directs the electricity law initiative at Harvard Law School's Environmental and Energy Law Program. "It's possible that it would trigger a wave of litigation in federal court with entities saying net metering is illegal under federal law and bringing FERC's order as a legal opinion supporting the lawsuit." Even if a state voluntarily ends its net metering program and starts pricing the sales according to PURPA, the flood of new PURPA facilities would only further drag out what's already a lengthy, highly contentious process at the state level to set rates, experts say. It could also see FERC increasingly fielding complaints that states aren't implementing PURPA properly. "FERC could have a real administrative burden on its hands with a surge in complaints," Peskoe said.

More than 100 liberal activists, leaders and celebrities signed a letter urging Joe Biden to select Sen. Elizabeth Warren as his running mate, intensifying pressure on the presumptive Democratic nominee from the left as he faces competing demands to pick a black woman. The letter portrays Warren (D-Mass.) as the best prepared prospect to serve as president and one uniquely capable of helping Biden politically in the November election. It asserts that he is “already strong” among nonwhite voters but could use help winning over disaffected voters who backed Sen. Bernie Sanders (I-Vt.) in the primary — even as some of them have soured on Warren...The letter, sent to Biden’s campaign on Friday, underlines the dueling pressures the former vice president is facing as he weighs his choices. While many on the left favor Warren, the nationwide protests over racism and police violence have prompted growing calls for Biden to choose an African American woman. This has added a challenge for white candidates such as Warren, who lack deep ties to African American communities, some Biden allies believe. As a candidate for president, Warren attracted mostly white crowds to her events and struggled to break through with black voters. Laurence Tribe, a constitutional law professor at Harvard University, where Warren once taught, said that there would be some “symbolic ways in which some people would be disappointed” if Biden does not choose an African American woman, and that disappointment should count. But Warren’s record, he said, makes her the strongest choice. “I think African Americans above all would be the first to say they are more interested in results than cosmetics,” said Tribe, who signed the letter.

An article by Annette Gordon-Reed: A few years back, I was on my way to an appearance at the Brattleboro Literary Festival, in Vermont. My coauthor, Peter S. Onuf, and I had decided to rent a car and drive up from New York, taking the scenic route. The weather was great, and it would be an adventure. Night fell as we drove through Massachusetts, and we were in the middle of a conversation when I noticed lights flashing behind us. Peter saw them too, and immediately pulled over to the shoulder of the road. Perhaps because we were on the highway, and it was dark, the officer came to the passenger side of the car, where I was sitting. He motioned for me to open my window. I complied. He asked if we knew why we had been pulled over, and we were at a total loss. He said Peter had veered over the center line on the road. The problem with that explanation was that there was no line on that stretch of road. There had been some construction, and workers were in the process of putting a new lines down, as we could see looking farther ahead. He asked our names, which we gave. He asked Peter for his license. And then he asked me for my ID. I was sitting there calmly, wearing my seat belt; I doubt seriously that the officer would have asked Peter’s wife, who is white, for her identification under these circumstances. The thing that was unusual about the two of us—and which, I believe, made the officer “suspicious” of us—was that Peter is white and I am black. We were an incongruous couple and had no reason to be together unless we were up to no good. Aside from writing works of history, I teach Criminal Procedure at Harvard Law School. But the intricacies of the law at that moment in the car were the furthest thing from my mind. What mattered was my deep awareness of the raw power of the person who had a gun and who had pulled us over for crossing a line that did not exist.

This week, as part of the company’s efforts to cull “bad actors,” Facebook accidentally deplatformed hundreds of accounts. The victims? Anti-racist skinheads and members of ska, punk, and reggae communities—including artists of color. Some users even believed their accounts were suspended just for “liking” nonracist skinhead pages and punk fan pages. While Facebook has kept mum on the reasons behind the mistake, it seems likely, as OneZero reported, that the platform confused these subcultures with far-right, neo-Nazi skinheads. It’s not exactly a hard mistake to make. The skinhead aesthetic has long been associated with white supremacist groups...One of the main reasons for such mistakes is the increased reliance on artificial intelligence. Social media companies have used A.I. for years to monitor content, but at the start of the pandemic, they said they would rely on A.I. even more as human moderators were sent home, admitting that they “expect to make more mistakes” as a result. It was a rare moment of candor: “For years, these platforms have been touting A.I. tools as the panacea that’s going to fix all of content moderation,” said Evelyn Douek, a doctoral student at Harvard Law School and affiliate at Harvard’s Berkman Klein Center for Internet and Society...The problem, of course, is that A.I. is here to stay—and that, partly as a consequence of this, we should expect to see many more mistakes on these platforms. But that doesn’t mean we should look at content moderation from a defeatist standpoint. “We need to start thinking about what kinds of mistakes we want platforms to make,” said Douek, who also mentioned that the conversation has been slow in catching up to this point “because people get uneasy talking about that kind of calculus in the context of speech rights.”

The use of facial recognition technology by U.S. law enforcement agencies isn’t dead, despite the withdrawal this week of Microsoft Corp. and Amazon.com Inc. from the market. The tech giants have pulled back temporarily after the introduction of a police reform bill in Congress this week that, among other things, would ban federal law enforcement officers from using facial recognition on body camera footage without a warrant. The bill was introduced in the wake of protests and the death of George Floyd in police custody. Amazon and Microsoft are some of the more recognizable names serving the market, but there are other sizable players, including NEC Corp. , as well as a number of smaller companies selling to police agencies...Even though some companies plan to continue selling the technology, they are likely to face a tougher market in the U.S., analysts said, amid legislative action to restrict the technology. Police departments also may move to curtail their usage of the technology for budgetary reasons as they face mounting calls for defunding, said Mutale Nkonde, a fellow at the Berkman Klein Center at Harvard University, a research center focused on the relationship between technology and society.

A headline-making protest that drew enormous crowds to the streets of Boston started with a tweet — and three college students. After three days of watching protests sweep across the country in the wake of the killing of George Floyd, a 46-year-old Black man, in Minneapolis, Amel Viaud of Mattapan decided it was time for her community to stand up...Young people have the megaphone, and they say they won’t give it up until the country has fully reckoned with the police violence and systemic racism threatening their communities and lives...Young people organizing for racial justice follow in a long tradition. “There have been successive waves of youth activism outflanking the traditional African-American and civil rights leadership" dating back to the 1930s, said Kenneth Mack, a Harvard Law School professor who studies the history of race in the law. He pointed to the example of Representative John Lewis, who as a young man chaired the Student Nonviolent Coordinating Committee, a civil rights group that both collaborated with and challenged the tactics of established figures like Martin Luther King Jr. “In that sense, what’s happening right now is very continuous with the past,” Mack said. To Mack, it is no surprise that today’s young people, and Black youth in particular, are leading a new wave of civil rights protests. “I think it’s become hard for young people to avoid images of the movement today,” he said. Teens and young adults are steeped in videos of Black people dying at the hands of police officers, political hashtags and slogans, and images of protests — all of which circulate rapidly online. “We have an entire generation of young people now who have grown up debating these issues," Mack said.

An article by Cass Sunstein: Would you adopt a fox? The prudent answer is “no”; foxes are wild animals. Or are they? In something out of science fiction, new research suggests that we are now starting to see two different kinds of foxes: the wild and the domesticated. The research tells us something about mammals in general, including the beloved Canine Lupus Familiaris (also known as the dog) and Homo Sapiens. It is also uplifting – a hopeful sign in these dark days. The relevant research, by Kevin Parsons of the University of Glasgow and colleagues, has a daunting title: “Skull morphology diverges between urban and rural populations of red foxes mirroring patterns of domestication and macroevolution.” But the title contains a bombshell. For some time, urban populations of red foxes have been domesticating themselves in London and its environs. True, they’re not dogs, but they have been moving in that direction. In areas around London, fox populations are looking different from their rural counterparts. Their snouts are shorter and wider. The differences between males and females are less pronounced. Their brains are smaller. These changes are characteristic of a process identified by Charles Darwin and known as the “domestication syndrome.” If you compare dogs with wolves, you will see the same kinds of differences that are now separating urban foxes from rural ones.

Harvard experts—including Charles Hamilton Houston Institute Managing Director David J. Harris and Professor of Practice Alan Jenkins ’89—talk about how to turn the moment’s energy into lasting change.

By now, you’ve likely seen that Harvard Law School will remain fully remote for the fall semester due to the coronavirus pandemic. The school announced that decision on June 3, making it the first law school to commit to online classes in the fall. Reaction, predictably, has run the gamut. The school has earned praise from those who believe that staying remote is the best way to protect the health of students, faculty, and staff, as well as the general public. But others have said eschewing campus altogether is an overreaction to the virus and will diminish the quality of the education students receive. I want to share some thoughts on this, because I think Harvard being the first to commit to remote instruction is a game changer. Let’s be honest, Harvard moves the legal education market in a way that no other school does (sorry Yale), and when Harvard makes a big play like this, people pay attention. First off, I think Harvard was pretty brave to make this call early in the summer. And I think it was probably the right thing to do. It’s quite possible that other law schools will be able to find ways to safely stagger in-person classes or offer a hybrid approach where larger classes are online and smaller ones meet on campus. But Harvard Law is huge. It graduates 600 J.D.s a year—only Georgetown is larger. And that number doesn’t even count all the LL.M.s, faculty, and staff around the school. I think the logistics of socially distancing the entire operation were just too much. I’ve got to think that some of the other large law schools—Georgetown, George Washington and Columbia come to mind—must be grappling with the same decision. In some ways, Harvard being the first should make it easier for other law schools to follow suit.

An article by David Harris: First, and essentially, we must reckon with what our history has wrought. As difficult as such a reckoning will be to define, indicators will reveal the extent to which we have succeeded. In order to facilitate the process, we must acknowledge a foundational point: “We the People” has never included all of us. That cannot be subject to debate. Once we acknowledge this defining exclusion, we can trace the myriad ways in which having denied large groups of people, notably African Americans and Native Americans, the most basic rights of membership and participation — the qualities of citizenship — has diminished life chances for individuals and communities. Understanding the real, ongoing harm from policies and practices that have differentially distributed access and opportunity, state violence, and deprivation will open our eyes to avenues for repair and restoration. We must rethink our notions of justice, as well. Our current coupling of criminality and justice locks us into a fixation on punishment in lieu of a system of justice. I understand justice as being made whole, which promotes practices that center on health and well-being of all residents, and whole communities, as the hallmarks of safety. Another more tangible indicator of our progress on the pathway to reckoning will be whether we not only hear and empathize with what people who have suffered for decades are saying, but act in truly responsive ways. As people are taking to the streets at great risk to themselves to decry the institutionalized racial violence perpetuated by policing, promoting legislation that bans chokeholds is tone deaf.

In the closing hours of Colorado’s 2020 legislative session and with a statewide eviction moratorium set to expire, Senate Democrats worked feverishly on a last-minute plan to protect hundreds of thousands of Coloradans who may be at risk of eviction in the coming months. State Sen. Julie Gonzales, D-Denver, hoped to extend the moratorium through October. As she spoke emotionally on the Senate floor for more than an hour about housing insecurity, Sen. Jeff Bridges, D-Greenwood Village, was working to broker a last-minute deal that would satisfy tenant advocates, the housing lobby and a handful of wavering Democratic lawmakers. But the talks collapsed and as the Senate adjourned just before 11 on Thursday night, it seemed unlikely that any extension of the eviction moratorium would materialize before the legislature adjourns in coming days...Unemployment has shot into double digits in the state since the coronavirus took hold here in March, creating an unexpected financial crisis for many Coloradans. “The big moment that this all will become acute is on July 31, when federal enhanced unemployment benefits turn off,” said Sam Gilman '22, co-founder of Colorado’s Eviction Defense Project, which formed in March. “The renters who have relied on this funding as a lifeline to be able to pay their rent will immediately face huge difficulty paying their rent.”

Scores of people waiting to recite the oath of citizenship — the final step in the citizenship process — should be naturalized immediately so that they have time to register to vote this fall, immigrant rights groups argued in a lawsuit filed in Philadelphia federal court this week. The Northwest Immigrant Rights Project and other groups filed the suit Wednesday on behalf of legal permanent residents whose applications for naturalization have already been approved by the U.S. Citizenship and Immigration Services' field office in Philadelphia. The organizations say their clients are among thousands nationwide who have had their oath ceremony cancelled or not scheduled due to the pandemic. They argue that federal law allows the courts to expedite the naturalization process during special circumstances...The agency recently began conducting naturalization ceremonies in small groups, but immigrant rights groups complain its not moving fast enough to get through the backlog of would-be citizens in time for election season. Registration deadlines for primary elections are approaching in a number of states this summer, and would-be voters must be citizens when they register or risk facing criminal charges or even deportation. In Massachusetts, Harvard Law School’s Immigration and Refugee Clinical Program and other organizations have asked the Boston federal court to consider holding virtual ceremonies or waive the oath requirement.

Alibaba (NYSE:BABA) stock has held up relatively well in a chaotic 2020. Alibaba stock’s 5.3% year-to-date gain is nothing to get excited about. However, there are at least three potential bullish catalysts that could make for a big second half of the year for BABA investors. The first potential catalyst to love about the stock is its technical picture. This week, Alibaba closed above $220 for the first time since February. It also closed above its April and May peaks. Since the initial novel coronavirus sell-off in March, BABA shares have been making a series of higher highs and higher lows, a textbook market uptrend....A lot of U.S. investors are freaking out about a potential delisting of BABA stock. I say it’s unlikely to actually happen. First of all, losing Alibaba and other Chinese stocks would cost Wall Street stock exchanges, brokers and investment banks millions of dollars. They would lose trading fees, underwriting fees and other income. “Wall Street will be lobbying to try to block it, because it makes a lot of money off of listings of Chinese companies in the United States,” Harvard Law School professor Jesse Fried said. Fried said the House may not even bring the bill up for a vote. Voting against it would make representatives look weak on China. But voting for it would anger their deep-pocketed Wall Street donors. I think people may be underestimating how much of an impact the investment community has on U.S. politics. When it becomes clear to investors that BABA stock isn’t going anywhere, it could trigger a relief rally.

A cross-ideological group of U.S. Supreme Court practitioners and former clerks on Thursday called for U.S. Attorney General William Barr to be held accountable for what they called the Trump administration’s “immoral” and “undemocratic” use of force against protesters in Lafayette Square on the evening of June 8. “A line was crossed last week. And we, as lawyers, must speak out to defend it,” the group wrote in a statement posted on Medium. The statement was signed by more than 100 attorneys, including 39 former Supreme Court clerks and 20 alums of the Justice Department’s office of solicitor general. Among them were Sidley Austin partner Carter Phillips, Mayer Brown partner Andrew Frey, Orrick Herrington + Sutcliffe partners E. Joshua Rosenkranz and Kelsi Corkran, Ropes & Gray partner Douglas Hallward-Driemeier, Hogan Lovells partner Catherine Stetson, and Harvard Law School’s Charles Fried. The statement also was signed by a number of former U.S. Justice department lawyers and constitutional law scholars. The statement followed one posted Wednesday, also critical of the Justice Department, from more than 1,260 former Justice Department lawyers across presidential administrations. “Last Monday, the Attorney General violated his oath by overseeing violence against peaceful protesters exercising their First Amendment rights. Those actions are irreconcilable with the unbiased administration of justice and the rule of law,” the new statement from the Supreme Court practitioners, former clerks and constitutional law scholars said.

Social media can be a scary, dangerous place under regular circumstances, but in a time of civil unrest due to the deaths of unarmed black men and women at the hands of police officers, social platforms become uncharted territory — particularly for many nonblack people hoping to show that they are allies. Under these circumstances, posting, or even knowing what to post, can sometimes create anxiety. Like many things, the rules of engagement on social media are different for black and nonblack people, especially now. For black people, anxiety can come from having posts critiqued by other black people because they don’t seem “angry enough,” “sad enough” or not enough of some other emotion. Kishonna Gray, an assistant professor in communications and gender and women’s studies at the University of Illinois at Chicago, doesn’t think there are any unspoken social media rules for different races, but rather there are entirely different spheres. That’s why Black Twitter, and other similar spaces, exist, she said...For nonblack people, especially white folks, the anxiety of posting can come from being unsure or fearful about what to say or do, but also from just being in this movement for the first time. “This has been a marathon that has gone on for centuries, so they’re getting aboard a fast-moving train and trying to make sense of it,” said Gray, who is also a faculty associate at the Berkman-Klein Center for Internet and Society at Harvard University “So they don’t know. It’s not laid out easily for them; there’s no GPS on the path to liberation and freedom. And so it’s exhausting ... especially for folks who’ve never had to think about it.” ...But that shouldn’t stop them from trying. If a nonblack ally doesn’t have anything of substance to contribute, don’t take up more space, said Gray, but amplify and highlight the voices — particularly the black voices — that have already said what you’re feeling, thinking or trying to express.

Online finance marketplace Jiayin Group’s stock price [NASDAQ:JFIN] surged more than 10 times during trading yesterday as a number of Nasdaq-listed Chinese companies saw their stock price somersault as the tech-heavy New York bourse advanced to close at a record high. Wins Finance Holdings [NASDAQ:WINS], a financial services company, was up more than two and a half times and gained more than seven-fold during the day. China Finance Online [NASDAQ:JRJC] closed up 51.5 percent after seeing its price double in the day. Shenzhen-based real estate firm Fangdd Network Group [NASDAQ:DUO] surged 13 times on June 9. It rose 30 percent yesterday before plummeting 66 percent to close at USD15.82. These major price fluctuations could be down to the fact that some of these companies do not have a large number of stocks in circulation...Last month, the US Senate passed a bill requiring businesses listed in the country to prove that they are not “owned or controlled by a foreign government” and to adhere to stricter audit requirements, a move that could squeeze out a number of Chinese firms. There are around 248 Chinese companies worth USD 1.6 trillion listed in the US, according to incomplete statistics. But the Senate’s move appears to have done little to dampen investor sentiment. Its bill could not only “backfire” on American investors, but could also hurt Wall Street, in which case investment institutions are likely to lobby against the legislation, Jesse Fried, professor at the Harvard Law School, told CNBC on June 9.

Shares of US-listed Chinese mainland companies set off on a roller coaster on Wednesday, with multiple stocks seeing turnovers surging dozens of times and the trade-halting circuit breaker being triggered more than 100 times. The volatility might have been triggered by the news that Wall Street is reportedly hindering the US government from taking action against mainland companies listed there, experts said. On Wednesday, some Chinese companies listed in the US saw their share prices flying high and then tumbling abruptly. The share price of mainland fintech company Jiayin Fintech at one point skyrocketed a stunning 900 percent but fell suddenly approaching closing. The company closed at $5.80 per share, up 96.61 percent. Wins Finance, another mainland finance company listed in the US, saw its share price surge 169.01 percent by closing...Harvard Law School Professor Jesse Fried recently said in an interview that the Holding Foreign Companies Accountable Act - designed by the US government to improve financial reporting by China-based firms trading on US stock exchanges that might force mainland companies to delist from US markets - is unlikely to pass due to opposition from Wall Street. According to Fried, Wall Street will be lobbying to block the legislation as it makes a lot of money from Chinese listings in the US.

On May 20, the Senate passed the Holding Foreign Companies Accountable Act (HFCAA), a bill that would potentially delist Chinese stocks that fail to comply with Public Company Accounting Oversight Board’s (PCAOB) audits for three years in a row. On the surface, the bill is intended to protect U.S. investors from potential fraudulent accounting by Chinese companies. Bank of America analyst Michael Carrier said Wednesday that delisting foreign stocks like Alibaba Group Holding Ltd - ADR (NYSE: BABA) and JD.Com Inc (NASDAQ: JD) could have a negative impact on Wall Street...He estimates the exchanges could lose between 2% and 3% of listing revenue, between 1% and 2% of US equity transaction revenue and roughly 1% of total revenue. Carrier’s comments come a day after Harvard Law School professor Jesse Fried told CNBC that the bill is unlikely to pass due to opposition from Wall Street.  “Wall Street will be lobbying to try to block it, because it makes a lot of money off of listings of Chinese companies in the United States,” Fried said.

Judge Emmet Sullivan’s appointed amicus curiae issued a stinging rebuke of retired lieutenant general Michael Flynn and the U.S. Department of Justice (DOJ) in a brief filed Wednesday. “[T]he Court should deny leave because there is clear evidence of a gross abuse of prosecutorial power,” retired judge and former prosecutor John Gleeson wrote in his 82-page filing–directly addressing the extraordinary intervention of Attorney General Bill Barr in the case. In early May, the DOJ head directed his subordinates to ask the U.S. District Court in the District of Columbia to dismiss charges of lying to federal agents against the president’s one-time national security advisor. Judge Sullivan, who has overseen Flynn’s case for years and who has been critical of the defendant in the past, took umbrage at the request and asked for any interested parties to intervene in the case in order to assess the merits of such a dismissal. Gleeson, known for his perspicacity viz. federal standards, was hand-selected by Sullivan for his analysis on May 13...Harvard Law Professor Laurence Tribe was also firmly on board with the retired judge’s thorough trashing of the DOJ’s position. “The amicus brief on behalf of Judge Gleeson is genuinely spectacular,” he said in an email. “It is thorough, careful, precise, candid, utterly devastating as a legal matter, and not in the least bit overstated. No judge who rules against the position articulated in this brief can possibly retain the respect of his or her peers.”

Activists who were outraged by George Floyd's death welcomed the criminal charges against Derek Chauvin and three other former Minneapolis police officers who were involved in that horrifying incident. But some of those charges raise issues that would trouble many of the same criminal justice reformers if the context were different. The second-degree manslaughter charge against Chauvin, the officer who kneeled on Floyd's neck for nearly nine minutes, seems to easily fits the facts of the case. It alleges that Chauvin caused Floyd's death "by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another." That offense carries a maximum penalty of 10 years in prison...Chauvin also faces a third-degree murder charge, which alleges that he caused Floyd's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." That charge, Harvard law professor Laurence Tribe and Minnesota criminal defense attorney Albert Turner Goins have argued, is not appropriate in this case, because Minnesota courts have restricted it to "reckless or wanton acts" committed "without special regard to their effect on any particular person."

Upcycled food is an officially defined term, which advocates say will encourage broader consumer and industry support for products that help reduce food waste. Upcycling — transforming ingredients that would have been wasted into edible food products — has been gaining ground in alternative food movements for several years but never had been officially defined. The Upcycled Food Association announced May 19 that it defined upcycled foods as ones that "use ingredients that otherwise would not have gone to human consumption, are procured and produced using verifiable supply chains, and have a positive impact on the environment." The definition was drafted by a working group convened by the Upcycled Food Association, which included representatives from Harvard University, Drexel University, Natural Resources Defense Council, World Wildlife Fund and ReFED, a nonprofit that analyzes solutions to food waste...Standardizing the term is also a first step toward legislation that supports upcycling, according to Emily Broad Leib, a Harvard University law professor and director of Harvard’s Food Law and Policy Clinic. "Further research can be done to identify and leverage policy incentives to support upcycled foods as a model to reduce food waste and support a more sustainable food system," she says in a statement.