Media Mentions

An article by Jeannie Suk Gersen: In the more than two hundred and thirty years since the Constitution was ratified, no lawsuit had attempted to enforce its anti-corruption provisions—until the Presidency of Donald Trump. Two previously obscure provisions of the Constitution, known as the emoluments clauses, aim to prevent public officials from being improperly beholden to foreign and domestic governments. One, the foreign-emoluments clause, requires a person holding a federal “office of profit or trust” to get Congress’s consent before accepting any “emolument”—an advantage, gain, or profit—from a “foreign state.” The other, the domestic-emoluments clause, prohibits the President in particular from receiving any “emolument” from the federal government or from a state, other than the preset standard salary for the job of President. Previous Presidents did not present the need for courts to interpret these clauses’ meaning. And, for the same reason that Trump is so different from other Presidents—his brazen disregard of legal norms—several lawsuits claiming that he is violating the emoluments clauses may end up forcing the unfortunate recognition that the Constitution’s anti-corruption measures are ineffectual when most needed.

Education Secretary Betsy DeVos is being sued again. This time she’s the target of a class action brought by student borrowers who say she’s illegally limiting the amount of debt relief they should get under federal law. The suit, filed by the Project on Predatory Student Lending at Harvard Law School and the Public Citizen Litigation Group, challenges a policy change DeVos issued last year. Before this change, defrauded student borrowers could get full debt relief, but now DeVos is only allowing partial forgiveness. Under the Higher Education Act, the “borrower defense” rule allows the Secretary of Education to discharge debt from schools that defrauded students. Instead of forgiving the entire debt a student took on to attend a school that defrauded them, the new policy would only forgive a portion based on what their predicted earnings were, according to a formula proposed by the Department. This formula would impact students seeking debt forgiveness after for-profit schools like ITT Tech and Corinthian Colleges defrauded them. When DeVos and the Department of Education proposed the new policy, she defended the formula as “scientifically robust” in a House Committee of Education and Labor hearing. But academics and policy analysts soon poked holes in the formula.

An attempt by the Senate to prevent China from using American investments in Chinese firms against the United States might prove to be self-defeating in the long run. Already an epicenter of anti-Chinese communist sentiment, the Senate on May 20 overwhelmingly approved the "Holding Foreign Companies Accountable Act (S. 945)," a bill that might lead to Chinese firms being barred from listing on U.S. stock exchanges. The bill will require foreign companies doing business in the U.S. to certify they’re not controlled by their governments. They will also have to submit to audits by U.S. regulators for three consecutive years...The intent of S.945 is laudable but the real world application might not redound to the benefit of the U.S., contended Jesse Fried, a professor of law at the Harvard Law School. “So, I think in terms of protecting American investors, this bill if it becomes law, could backfire” and might also hurt Wall Street, warned Fried. He told CNBC he's “not sure that this bill ... will actually make American investors better off" because there’s a good chance Chinese firms will stop trading on Wall Street after three years if the bill becomes law...Fried also noted not much can be done to protect the interests of American investors in Chinese firms. He believes there’s “good reason” to think S. 945 won’t be signed into law because of staunch Wall Street opposition. “Unfortunately, I think that money that American investors have already paid for stocks in Chinese companies -- especially money that’s gone back to mainland China -- is basically money that these people may never see again. But there’s not really that much you can do to protect them at this point."

Today, the Harvard Law School Food Law and Policy Clinic (FLPC) released a first-of-its-kind interactive resource to inspire long-term policy solutions to food waste, hunger, and climate change: The Global Food Donation Policy Atlas. In partnership with The Global FoodBanking Network (GFN), and with the support of the Walmart Foundation, The Global Food Donation Policy Atlas maps the laws and policies affecting food donation around the globe and provides recommendations to prevent unnecessary food waste and improve food distribution to those in need. The research released today focuses on Argentina, Canada, India, Mexico, and the United States, the first five of 15 countries participating in this project...The Global Food Donation Policy Atlas looks at six main barriers to food recovery: food safety for donations, date labeling, liability protection for food donations, tax incentives and barriers, government grants and funding, and food waste penalties or donation requirements. It identifies several opportunities for governments to prevent unnecessary waste and to promote food donation... “It’s more important than ever for policymakers, government agencies, food donors, companies, food banks, and the public to understand the impact of unnecessary food waste in their countries and the need to change it,” said Emily Broad Leib, Faculty Director at FLPC and Clinical Professor of Law at Harvard Law School. “The Global Food Donation Policy Atlas is the first research study to compare food donation policies and best practices across the world, providing us with the global perspective we need to address this complex issue,” Broad Leib concluded.

Democrats’ sweeping proposal this week to curb police violence against minorities doesn’t address what’s drawn criticism from Black Lives Matter activists and management-side attorneys: union contracts that shield officers who use lethal force. Activists have begun to focus on collective bargaining agreements that allow accused officers to resolve their complaints through arbitration behind closed doors; wait 48 hours after a lethal incident before being questioned by police, often with an attorney and a union representative present; and access information on evidence and witnesses that wouldn’t be available to civilians. The calls for reform follow days of global protests over the death of George Floyd, an unarmed, restrained black man, after a Minneapolis officer knelt on his neck for almost nine minutes. Other videos of police violence—including an incident in Buffalo, N.Y., in which a protester was injured after being pushed to the ground—are going viral...It’s not uncommon for union contracts to require a waiting period, typically 24 or 48 hours, between an incident and the time an officer is interviewed. This allows officers to meet with an attorney and union representatives, who are usually present during questioning, said Benjamin Sachs, the faculty codirector of the Labor and Worklife Program at Harvard Law School. “It allows officers time to develop a strategy to avoid accountability,” Sachs said.

Students who’ve been scammed by their schools are being illegally cheated again — this time out of the loan cancellation that they’re entitled to, a new lawsuit alleges. A group of student-loan borrowers filed a class-action lawsuit Tuesday accusing Secretary of Education Betsy DeVos and her department of illegally limiting the amount of relief student-loan borrowers who were misled by their schools receive...In some cases, borrowers who the agency agrees were lured by false promises into taking on high levels of student-loan debt are having just 10% of their loan balances cancelled, the lawsuit alleges. The borrower defense rule is “supposed to be about cancelling debt and providing appropriate relief to people who have been cheated,” said Toby Merrill, the director of Harvard Law School’s Project on Predatory Student Lending, which is representing the students. The partial relief version of the rule that the Department of Education is currently using is “so clearly not designed for that,” Merrill said...A borrower only receives full debt relief if the median earnings of their program is in the lowest 2.5% of comparable programs. “This formula was engineered to give the least possible relief to borrowers,” Merrill said. By solely using similar programs as a basis for comparison, the rule uses as a metric the earnings of other mostly for-profit college students who may have been subject to similar harm, Merrill said. “If the truth is there was pervasive wrongdoing and misrepresentation, the fact that everyone was lied to doesn’t excuse that,” Merrill said. In addition, the rule fails to take into account other factors that would be key to determining whether a borrower was harmed by their school, including the amount they borrowed. The focus on earnings, is “trying to measure a sense of economic security or well-being,” Merrill said. “That of course depends on other things, but most obviously relevant here, is how much debt you have.”

An article by Noah Feldman: The Justice in Policing Act of 2020 introduced by House Democrats this week contains a provision that is likely to become the subject of lively debate: The provision effectively eliminates the legal defense known as “qualified immunity” for state and local police who get sued for violating citizens’ civil rights. The proposal is extremely important from a symbolic perspective. The Supreme Court has used the doctrine in recent years to send a message to lower courts that it wants less litigation against police. Now is the time for Congress to send the opposite message. Lawmakers should make it clear that police should not be “immune” from responsibility when they break the Constitution. The doctrine of qualified immunity muddies the principle of equal justice under law. Nor is qualified immunity contained in the text of any federal statute. It was invented by the Supreme Court in a series of cases, most importantly the 1982 decision of Harlow v. Fitzgerald. The basic idea of the doctrine is to create an exception to the important civil rights statute known as Section 1983. That law, whose origins date back to 1871, says that a state or local government official who violates a citizen’s constitutional rights “under color of law” can be sued in federal court and held liable for monetary damages. Essentially, qualified immunity says that you can only win a suit under Section 1983 if you can prove that the official’s conduct violated clearly established federal law.

IBM is getting out of the facial recognition business, saying it's concerned about how the technology can be used for mass surveillance and racial profiling. Ongoing protests responding to the death of George Floyd have sparked a broader reckoning over racial injustice and a closer look at the use of police technology to track demonstrators and monitor American neighborhoods. IBM is one of several big tech firms that had earlier sought to improve the accuracy of their face-scanning software after research found racial and gender disparities. But its new CEO is now questioning whether it should be used by police at all...IBM's decision to stop building and selling facial recognition software is unlikely to affect its bottom line, since the tech giant is increasingly focused on cloud computing while an array of lesser-known firms have cornered the market for government facial recognition contracts. “But the symbolic nature of this is important,” said Mutale Nkonde, a research fellow at Harvard and Stanford universities who directs the nonprofit AI For the People. Nkonde said IBM shutting down a business “under the guise of advancing anti-racist business practices” shows that it can be done and makes it "socially unacceptable for companies who tweet Black Lives Matter to do so while contracting with the police.”

Three days after George Floyd was killed in the custody of Minneapolis police, the Supreme Court’s justices met privately to consider a raft of long-pending appeals asking them to review a legal doctrine that makes it difficult for many victims of abusive policing to sue the perpetrators. The timing was coincidence, and the court has taken no action on the petitions. But the multitude of cases—including one from Minneapolis—underscores the power of qualified immunity, a rule the Supreme Court recognized in 1967, and later strengthened, to protect officials from the threat of litigation for most law-enforcement actions...Congress in 1871 prohibited state and local officials from violating an individual’s civil rights, during its drive to protect newly free African-Americans from repression in the South...The qualified-immunity doctrine emerged nearly a century later, when in 1967 the Supreme Court said clergymen arrested in 1961 for refusing to leave a bus terminal’s whites-only waiting room in Jackson, Miss., couldn’t sue police officers for violating their rights, since Mississippi’s segregated bus terminals weren’t found unconstitutional until 1965...A turning point came in a 1982 case, Harlow v. Fitzgerald, when the court dismissed a case filed by a former Air Force official alleging that Nixon White House aides fired him for exposing “shoddy purchasing practices.” The decision, by Justice Lewis Powell, freed official defendants from having to demonstrate they acted in good faith, a requirement he said permitted too many “insubstantial claims” to move forward. “Part of Powell’s concern was that police officers might hesitate when they shouldn’t hesitate just out of fear of personal liability,” said Harvard law professor Richard Fallon, who as a law clerk helped the justice draft the Harlow opinion. But the doctrine doesn’t operate “the way Powell thought it operated” because in practice officers don’t pay judgments themselves—police departments do, Mr. Fallon said. “If the officers have immunity, de facto you get immunity for police departments,” he said.

A podcast by Noah Feldman: Paul Butler, a law professor at Georgetown, a former federal prosecutor and the author of the book "Chokehold: Policing Black Men," on policing, George Floyd, and the Black Lives Matter movement.

Under a new bill, passed by the U.S. Senate last month, Chinese firms risk being delisted from U.S. stock exchanges if they don't adhere to U.S. audit standards. But, if the law is passed, it's unclear if U.S. investors will be left "better off," says Jesse Fried, a professor of law at the Harvard Law School.

In the special wards of Shanghai’s Public Health Clinical Center, nurses use smart thermometers to check the temperatures of COVID-19 patients. Each person’s temperature is recorded with a sensor, reducing the risk of infection through contact, and the data is sent to an observation dashboard. An abnormal result triggers an alert to medical staff, who can then intervene promptly. The gathered data also allows medics to analyze trends over time. The smart thermometers are designed by VivaLNK, a Silicon-Valley based startup, and are a powerful example of the many digital products and services that are revolutionizing healthcare. After the Internet of Things, which transformed the way we live, travel and work by connecting everyday objects to the Internet, it’s now time for the Internet of Bodies. This means collecting our physical data via devices that can be implanted, swallowed or simply worn, generating huge amounts of health-related information...But today, all sorts of seemingly non-sensitive data can also be used to draw inferences about your health, through data analytics. Glenn Cohen, a professor at Harvard Law school, told me in an interview that even data that is not about health at all, such as grocery shopping lists, can be used for such inferences. As a result, conventional regulations may fail to cover data that is sensitive and private, simply because it did not look sensitive before it was processed.

The Trump administration has expressed little concern over climate change as it pursues its goal of American dominance in the energy market. Federal judges say it should be concerned. At least six times since President Donald Trump took office, courts have rebuked the Interior Department for selling drilling rights or advancing oil projects without adequately considering the consequences to a warming planet. The decisions have jeopardized high-stakes oil development plans across more than a million acres of federal land...The latest climate-related defeat came in May, when Montana-based U.S. District Court Judge Brian Morris tossed out 287 oil and gas leases spanning 145,063 acres in the state more than two years after the federal government sold those drilling rights. Morris said the Interior Department’s Bureau of Land Management failed to adequately scrutinize the consequences of its decision making, even though courts have consistently said such a “hard look” is required under the National Environmental Policy Act...Since Congress hasn’t revised the underlying, 50-year-old National Environmental Policy Act, all of its requirements remain on the books. And courts have been clear that the law requires a hard look at the cumulative effects of their actions, including greenhouse gas emissions, said Hana Vizcarra, staff attorney at Harvard University’s Environmental and Energy Law Program. “We’ll see how much the change of regulation will shift that,” she said

An article by Benjamin Sachs: Among the many outrages in the death of George Floyd is this one: Derek Chauvin, the police officer who killed Floyd, had been the subject of at least 17 misconduct complaints and yet he remained an armed member of the Minneapolis Police Department. How does that happen? Part of the answer is the collective bargaining agreement reached between the police department and Chauvin’s union. Like other such police agreements, the one in Minneapolis gives cops extraordinary protection from discipline for violent conduct. It mandates a 48-hour waiting period before any officer accused of such conduct can be interviewed, a common delay and a luxury not afforded even to criminal suspects and one that allows officers time to develop a strategy to avoid accountability. Like many police contracts, including those in Baltimore, Chicago and Washington, D.C., the Minneapolis agreement also requires the expungement of police disciplinary records after a certain amount of time. Under the Minneapolis police contract, any disciplinary action that does not result in punishment must be removed from an officer’s record. Even in cases where an officer is fired for misconduct, the agreement requires an appeals process that frequently leads to reinstatement, especially if the investigating agency has committed procedural errors. Police collective bargaining agreements, in short, insulate cops from discipline.

Members of the Harvard Law School faculty published an open letter to students and Harvard affiliates Monday criticizing President Donald J. Trump for calling for a military response to ongoing protests against police brutality. The letter received signatures from 160 faculty members, including former Law School Dean Martha L. Minow and former United States Ambassador to the United Nations Samantha J. Power. It was reopened for signatures on June 2 after requests from additional Law School teaching faculty and law librarians. The authors of the letter denounced a tweet posted by Trump on May 29 which included the phrase “when the looting starts, the shooting starts” in reference to nationwide protests following the killing of George Floyd by Minneapolis police. They argue the president’s language encourages violence by private citizens. “By legitimating lawless action by public officials, the President’s tweet invites other individuals to take similarly destructive action,” the letter reads. The White House press office did not immediately respond to a request for comment. Law School professor Christine A. Desan, who worked on drafting the letter, said Trump’s tweet signified a commitment to using violence against citizens involved in the protest. She said she finds the message problematic since Trump speaks as the Commander in Chief of the Army. “We don't under our Constitution live in a society where even if somebody is stealing something they get shot,” she said. “To have him pledge to use excessive state violence against people indiscriminately is really unlawful — deeply unlawful.”

In May 2020, Elizabeth Bartholet, a Harvard Law Professor, called for significant new regulations on homeschooling in the United States. In this extra-long episode, I interview Professor Bartholet about her ideas, research, and proposals. We are joined by Rachel Coleman, executive director of the Coalition for Responsible Home Education — and a grown homeschooler herself — who contributes a wealth of experience and impassioned arguments for increasing oversight of homeschooling. While all three of us have different visions of what “appropriate regulation” might be, we also find areas of agreement. Discussion topics include: Who homeschools in the U.S.? How prevalent is abuse and neglect? What is good and important about homeschooling? What’s the justification for increased regulation? Do bad schools inflict just as much (or more) harm on children than homeschooling? And what are the most essential legal changes that Bartholet and Coleman would each like to see enacted?

Who is Lawrence Lessig and why is he campaigning for electoral reform? Lawrence Lessig is an academic, attorney and political activist who has served as Director of the Edmond J. Safra Center for Ethics at Harvard University. He rose to prominence in 2014 when he launched the crowd-funded Mayday PAC, with the aim of electing members of Congress who support campaign finance reform, before ultimately running for President on a platform of electoral reform. In 2016, he founded the non-profit ‘Equal Citizens’, an organization “dedicated to reforms that will achieve citizen equality”. On 13th May 2020, he argued at the Supreme Court in a case that will decide whether presidential electors in each state can be legally compelled to vote for the candidate that won the popular vote in that state.

The solar industry, struggling amid the coronavirus pandemic, faces another threat at the Federal Energy Regulatory Commission: a petition that would effectively end a key incentive for installing rooftop solar called net metering. The New England Ratepayers Association on April 14 asked FERC to declare that the agency has jurisdiction over net metering, which requires utilities to buy excess power from customers who generate electricity with their own energy resources, such as rooftop solar panels...The question at the heart of NERA’s petition is whether sales from rooftop solar should be deemed retail sales, which are regulated by states, or wholesale sales, which fall under FERC’s jurisdiction. In decisions issued in 2001 and 2009, FERC has said that net metered electricity sales fall under state authority. NERA, however, contends FERC’s analysis is flawed. If FERC asserts authority over net metered sales, the practice would be effectively killed, according to Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. The solar industry finds NERA’s petition alarming...Harvard Law School’s Peskoe contends that NERA’s petition is based on flawed legal analysis. Also, unlike typical petitions at FERC, NERA failed to say how the group is harmed by net metering or describe exactly what the group is. FERC could dismiss the petition on those grounds alone, Peskoe said.

Earlier this week, the Department of Labor clarified that under existing law U.S. retirees with 401(k) plans can allocate a portion of their savings to investments in private equity funds. According to Hal Scott, the President of the Committee on Capital Markets Regulation and Emeritus Nomura Professor, Harvard Law School, "the DOL's information letter is a major step towards providing U.S. retirees that have over $6 trillion in 401(k) retirement savings with access to the high returns and diversification benefits of private equity." The Committee on Capital Markets Regulation, an independent research organization with thirty-five members drawn from the finance, law and academic communities, strongly supports expanded access to private equity for retirees and retail investors. Presently, 401(k) plan fiduciaries generally do not provide retirees with access to private equity due to the risk of frivolous litigation alleging excessive fees or underperformance. The DOL's information letter should help address these concerns by clarifying that 401(k) investment options may include an allocation to private equity funds, so long as a plan fiduciary has evaluated the risks and benefits of doing so. Consistent with recommendations by the Committee, the DOL sets forth best practices for plan fiduciaries to consider such risks and benefits. "I am glad to see that the DOL took this action pursuant to President Trump's Executive Order to remove barriers to economic growth and innovation," says Prof. Scott.

An article by Noah Feldman: Did President Donald Trump’s administration violate the First Amendment on June 1 when various police and other security forces tear gassed peaceful demonstrators in Lafayette Square park so the president could walk to St. John’s Church for a photo op? That is the central question in a lawsuit brought over the weekend by the Washington, D.C. chapter of Black Lives Matter and a number of individual protesters. The answer is almost certainly yes. And the lawsuit is extremely important, not because the plaintiffs will necessarily prevail, but because it is the best and maybe only way to prevent such a blatant constitutional violation from happening again just steps from the White House. Like most people, I followed the events of the evening of June 1 on television. The Trump administration may eventually offer a different version than the one we saw. For now, however, it’s reasonable to assume a set of facts pretty close to those alleged in the lawsuit. Essentially, Lafayette Square, directly across from the White House, was full of peaceful protesters. They were exercising their First Amendment rights in a public park, which the courts consider to be the very model of a “traditional public forum” where free speech rights are at their peak. Just after 6 p.m., a large number of armed law enforcement and military gathered around the park. The lawsuit alleges that they included “at least” U.S. Park police, Arlington County police, U.S. Secret Service, D.C. National Guard, and military police from the 82nd Airborne Division of the U.S. Army. Trump had apparently tasked Attorney General William Barr with commanding this wide range of police. There have been divergent accounts of whether Barr gave a direct order to clear the park.

An article by Nancy Gertner and Paul Butler: If equal justice under the law had applied to George Floyd — justice equal to what the four cops now charged with his murder have received — he would never even have been arrested. The tale of these arrests — one of a black man and that of four police officers — explains why there is justifiable rage on America’s streets. On May 25, a store clerk in Minneapolis called the police because he suspected that Floyd had paid for a pack of cigarettes with a counterfeit $20 bill. But the store owner later said: “Most of the times when patrons give us a counterfeit bill, they don’t even know it’s fake.” The call should have started an investigation; that’s not what happened to Floyd. Instead, within minutes of the police officers’ arrival, Floyd was facedown on the street, hands tied behind his back, with Derek Chauvin pressing his knee into his neck for nearly nine minutes, while two other cops restrained Floyd by pressing down on his back and legs, and the fourth officer kept distressed passersby from intervening. Floyd begged for his life, telling them that he couldn’t breathe. Soon, his body went limp and silent. He was declared dead at the hospital. Chauvin was caught killing a man on video, while several eyewitnesses pleaded with him to stop. Yet he appeared completely calm, bored even, one hand nonchalantly in his pocket as Floyd died beneath his knee. So casually did the cops arrest, brutalize and kill Floyd for nothing. And just as easily did Chauvin and the other three officers leave the scene of their crime. No police cars swarmed the scene to arrest the four officers. Chauvin went home that night a free man, and for the next three nights as well. The other officers were not arrested until Wednesday.