Media Mentions

A podcast by Noah Feldman: Vanita Gupta, the former head of the U.S. Department of Justice’s Civil Rights Division, discusses the protests across the country, and the reforms she would make to how policing works in the U.S.

If you’ve tried to read a book — or anything longer than 280 characters — lately, you’ve likely pondered the role of, and appetite for, fiction in our attention-fractured times. So, too, has Tyler Cabot, since long before the coronavirus swept in. “We’ve had an overflow of news, generally, and then on the other side, a lot of opinion pieces,” said the former editor at Esquire and current affiliate at the Berkman Klein Center for Internet and Society at Harvard. “But what I found lacking was a place to think more deeply about the news, where art is used to get a better understanding of the way that we’re actually living now.” In early March, after six months of work, Mr. Cabot and a small team of modestly paid friends launched the website The Chronicles of Now, a collection of bite-size fiction pieces, each inspired by a recent headline. For the inaugural post, titled “The Extinction Show: Live! One Night Only!,” the author Manuel Gonzales took cues from a report in this newspaper about the human-accelerated demise of certain species. In subsequent weeks, sparked by an article in The Washington Post, Colum McCann rattled off, rapid-fire, all of the thoughts that crossed the soccer player Megan Rapinoe’s mind during the 61st minute of last year’s World Cup final; Sloane Crosley imagined the actress Lori Loughlin’s internal monologue amid her lawyers’ claims they have new evidence of her innocence (hat-tip to The Associated Press); Vauhini Vara used an Atlantic deep-dive on SpaceX’s Starlink satellites as an entry point for her exploration of what we believe in.

An article by Jack Goldsmith: Inspectors general are under attack. President Trump’s recent termination of State Department Inspector General Steve Linick was the fifth time in two months that Trump has fired or removed inspectors general and sought to replace them with officials he perceives to be more loyal. Congress, including important Republicans, is finally stirring to protect these internal agency watchdogs. But the focus on trying to make it harder for the president to remove inspectors general is misplaced. Instead, lawmakers should concentrate on restricting how a president can fill vacant inspector general positions. The modern inspector general dates to 1978, when Congress gave many inspectors general extraordinary internal investigative powers, required them to be confirmed by the Senate and tasked them with reporting to Congress. All this was controversial as a constitutional matter. President Jimmy Carter signed the 1978 law even though his Justice Department concluded that the dual reporting obligations to the executive branch and Congress “violate the doctrine of separation of powers.” Over the decades, constitutional concerns have faded as inspectors general have proved their worth in rooting out agency waste, fraud and abuse, and in conducting credible investigations of controversial agency actions. The 2003 Central Intelligence Agency report on black sites, the 2012 General Services Administration report on federal employee extravagances, the 2012 Justice Department report on the “Fast and Furious” gun-running program, and the 2019 Justice Department report on the investigation of the Trump campaign are exemplars that led to important reforms.

An article by Jesse Fried: Last month, the US Senate unanimously passed a bill aimed at improving the reliability of financial statements by China-based companies trading in the US. The legislation focuses on a real problem with these businesses, whose total market capitalisation is about $1tn. Over the past decade, alleged fraud at China-based, US-traded companies — including most recently Luckin Coffee — has cost American investors billions of dollars. Unfortunately, the bill’s remedy may end up making them worse off. To reduce fraud, the Sarbanes-Oxley Act of 2002 requires audits of every US-traded company to be inspected by the Public Company Accounting Oversight Board. But those based in China refuse to comply. They, and the Chinese government, say PCAOB inspection of China-based audit records would violate state-secrecy laws. Why block PCAOB access? Inspections might well reveal bribes to high-ranking officials, embarrassing the Chinese Communist party. The US bill requires the Securities and Exchange Commission to prohibit trading in the stock of any company that goes three consecutive years without PCAOB inspection. Its apparent goal is to force China to agree to inspections. If the strategy succeeds, it should be harder for insiders of China-based companies to defraud American investors. The bill has bipartisan support in the House of Representatives.

The U.S. Court of Appeals for the Ninth Circuit rejected the petition of oil supermajors and ruled that state courts are more suitable to impartially adjudicate climate change lawsuits against oil and gas companies instead of federal venues that are suspected to be bias to the energy industry. The lawsuits, filed by the cities of San Francisco and Oakland, hold five Big Oil majors, namely ExxonMobil XOM, Chevron CVX, ConocoPhillips COP, BP plc BP and Royal Dutch Shell RDS.A accountable for misleading the public by wrongly promoting their work to be environmentally friendly when in reality, they were aware of their hazardous contribution to climate change. By alleging the companies to be financially responsible for this menace, they demand the oil giants to cough up billions for the damages caused due to intensified carbon footprint and help construct a protective infrastructure to prevent the rise in sea-level and other problems cropping up from global warming. The unanimous verdict by a three-judge panel of the Ninth Circuit, Judge Sandra Ikuta, a George W. Bush appointee along with judges Morgen Christen and Kenneth Lee overturned the decision of judge William Alsup, who had earlier dismissed the Oakland and San Francisco litigation in 2018. He opined that court cases were not the best solution to address the damages induced by fossil fuels or global warming and consequently, moved the case to the federal court where two judges failed to reach a consensus...The cities and counties “live another day to put forth their claims and argue their case,” said Hana Vizcarra, staff attorney, Harvard Law School’s Environmental and Energy Law Program.

Professor Dehlia Umunna calls into iHeartRADIO's Matty in the Morning to discuss race and policing in the United States.

In a widely expected move, Trump vetoed congressional legislation that would have overturned a key student loan forgiveness rule drafted by the U.S. Education Department under the leadership of Education Secretary Betsy DeVos. In March, the U.S. Senate voted 53-42 to overturn a new student loan forgiveness rule introduced by U.S. Secretary of Education Betsy DeVos that critics argue limit student loan forgiveness for students when a college closes due to fraud. All Senate Democrats and 10 Republicans voted on a bipartisan basis. The House of Representatives overturned the rule in January by a vote of 231-180. The student loan forgiveness rules are known as borrower defense to repayment, which allow students to have their federal student loans forgiven if a school employed illegal or deceptive practices to encourage the students to borrow debt to attend the school. Without these rules, students are potentially on the hook to repay federal student loans even if they didn’t find gainful employment or finish their degree before their school closed...A federal judge previously ordered DeVos to comply with the borrower defense rule. However, rather than comply with the judge’s order, the Education Department instead did the following, according to the Project on Predatory Student Lending at Harvard Law School. “The Department demanded incorrect loan payment from 16,034 students. Of those students, 3,289 student borrowers made one or more loan payments because of these demands, which they were not actually supposed to pay. The Department has still not confirmed that 1,147 students’ loans are in the correct status, leaving those students in limbo. The Department has harmed the credit of 847 non-defaulted students. The Department subjected 1,808 students to involuntary debt collections (garnished their wages or taken their tax refunds or benefits).”

An emergency medicine physician from Washington state has filed a lawsuit to get his job back at a hospital. He was fired in late March after criticizing his hospital's response to the coronavirus pandemic. "This is about people on the front line being given the opportunity to speak out without being terminated and being reprimanded," says Dr. Ming Lin. Since 2003, Dr. Lin had worked in the ER at St. Joseph Medical Center in Bellingham, Wash., owned by health system PeaceHealth. As the coronavirus swept through Seattle, Lin started publicly outlining concerns about his hospital's handling of the pandemic...After Lin's firing, the American Academy of Emergency Medicine condemned the hospital administration's actions and called for an investigation, saying "it is an essential duty of a physician to advocate for the health of others." Harris Mufson, a partner with the law firm Proskauer, says the type of lawsuit filed in the Washington case can be difficult to win because it relies on common law...Along with using state laws, health care workers can pursue cases of workplace retaliation in federal court, and by filing complaints with the Occupational Safety and Health Administration (OSHA), says Steven Pearlman, a partner with Proskauer...OSHA has faced criticism during the pandemic for not being more responsive to worker concerns. That may drive health care workers to take other legal routes when facing retaliation, says Terri Gerstein, a labor attorney who directs the State and Local Enforcement Project at Harvard Law School's Labor and Worklife Program. Gerstein is also a senior fellow at the Economic Policy Institute. "It's so important that employers understand that when people raise these kinds of safety concerns, it's not an adversarial thing," she says. "They are trying to make their workplace safer and stem the spread of this horrible disease."

A group of two-dozen former federal judges on Friday defended Judge Emmet Sullivan’s refusal to immediately approve the Justice Department’s bid to drop the prosecution of Michael Flynn, stepping into a politically fraught case that has raised fresh questions about the extent of the judiciary’s authority over criminal prosecutions. In a 24-page friend-of-the-court brief, the former judges asserted Sullivan has full authority to review the government’s effort to abandon the prosecution of Flynn, who has twice admitted to lying to federal investigators about his past discussions with the Russian ambassador to the United States...The former judges behind Friday’s brief had been appointed by Democratic and Republican presidents, and they said they “represented centuries of judicial experience and have presided over thousands of criminal cases.” The signatories included Nancy Gertner, a Harvard Law School professor and former federal judge in Massachusetts, along with former Manhattan federal judge Shira Scheindlin and Howard Matz, who served as a federal trial judge in Los Angeles from 1998 until 2011. In their brief, the former judges defended Sullivan’s inquiry into the Justice Department’s abrupt abandonment of the case, more than two years after Flynn initially pleaded guilty and agreed to cooperate with the special counsel investigation into Russian interference in the 2016 election. Flynn subsequently fired his lawyers at Covington and Burling, and his new legal team has spent months arguing that Flynn should be allowed to walk away from his guilty plea.

Despite being members of the modern world’s oldest continuous democracy, Americans aren’t great at turning up to vote. The U.S. has among the lowest voter turnout of developed democratic nations. The reasons are complex and ingrained — from institutionalized voter suppression to individual apathy and distrust in the government. And now, with the 2020 presidential election only five months away, the coronavirus pandemic has added an extraordinary new hurdle on the path to participatory citizenship. While here in the U.S. we have come to see disengagement as a birthright and disenfranchisement a feature of the system, in a number of other countries, voting is more than a right: It’s required. Some experts believe that making voting mandatory — penalizing those who don’t, or rewarding those who do — could get more U.S. voters casting ballots. And that could bring our democracy closer to being truly representative...Punitive measures for noncompliance are the most common ways of enforcing compulsory voting, but some advocates think an incentive approach has a much better chance of succeeding in the United States. Some suggest small payments or tax credits to encourage citizens, especially young and first-time voters, to register and vote. The goal of such payments would be to inculcate people into a lifelong habit of voting. “You could give somebody a $50 tax credit if they do vote, but don’t fine them for not voting,” suggested Harvard Law School professor and elections expert Nicholas Stephanopoulos. “You might not get quite as high compliance that way, but I think it’d be a lot more palatable and it would also basically negate any potential legal challenge.”

An article by Laurence Tribe and Albert Turner Goins: Unless prosecutors in Minnesota file more serious charges against the police officer accused of killing George Floyd, they’re at risk of compounding public outrage by letting that former officer escape a charge of murder. Millions of us watched the Memorial Day video of the white officer, Derek Chauvin, grinding his knee into the neck of Floyd, an immobilized Black man. We saw Floyd call out for his mother and say, “I can’t breathe,” until he was beyond saving. The echoes of past extrajudicial executions and centuries of slavery and slaughter, of lynching and officially sanctioned violence, rang out across the land. It took several excruciating days before the county’s chief prosecutor, Michael Freeman, finally saw fit to file criminal charges against Chauvin, and then only for second-degree manslaughter, an offense punishable by up to 10 years in prison but usually resulting in a much lighter sentence, as well as something Minnesota calls third-degree murder, a crime punishable by up to 25 years but applicable only where someone unintentionally causes death by “reckless or wanton acts … without special regard to their effect on any particular person” — like shooting aimlessly into a crowd. No one remotely familiar with Minnesota law would regard either of those charges as the right ones to bring in this case — a case where, even if intent cannot be proven, a second-degree felony murder charge, punishable by 40 years in prison, is manifestly justified. Under a quirk in Minnesota law, second-degree murder can be charged where an assault — such as the first-degree assault evident from Chauvin’s placement of his knee on Floyd’s neck for nearly nine minutes — unintentionally results in death. More critically, anyone steeped in Minnesota law would recognize that the third-degree murder charge would likely be summarily dismissed for the ironic reason that Chauvin clearly aimed his acts at Floyd. Such a miscarriage of justice would surely trigger still more chaos and violence from coast to coast as people across the political spectrum come to see American justice as unworthy of the name.

The feud between Twitter and Donald Trump keeps escalating. Days after Twitter drew the president’s ire by applying a fact-checking label to one of his tweets—prompting a retaliatory executive order from Trump—the platform went even further. On Friday morning, it flagged a Trump tweet for violating its rules and implemented measures to keep it from going viral, while keeping the tweet up in the name of public interest. It’s a move that attempts to strike a thoughtful balance. But it also gets Twitter deeper into a messy conflict that there may be no easy way out of. The tweet that finally crossed Twitter’s line came just after midnight on Friday morning, in response to the escalating riots in Minneapolis following the apparent murder of George Floyd, an unarmed black man, by a white police officer. Trump suggested that he might deploy the National Guard and warned that “when the looting starts, the shooting starts,” a phrase attributed to Walter Headley, a Miami police chief in the 1960s who bragged about using “police brutality” against rioters. Twitter soon covered up Trump’s tweet with a label warning that it violated a rule against glorifying violence...There’s no perfect answer here, but Twitter may have found the least bad approach to a nearly impossible situation. “This is the most effective way of Twitter balancing the public interest of constituents knowing what their president says and believes, versus reducing the harm where that speech is potentially dangerous,” says Evelyn Douek, an affiliate at Harvard’s Berkman Klein Center for Internet and Society. Douek cautioned against expecting a platform like Twitter to completely solve the problems of political discourse. “There’s a real democratic tension in a private company that has no democratic accountability or legitimacy deciding what a duly elected public official can or cannot say.”

An article by Cass Sunstein: President Donald Trump’s executive order targeting social-media companies raises tough questions about presidential power, presidential bullying and freedom of speech. To understand it, we need to start with what’s clear, and then explore what’s not. An executive order is not a law. It doesn’t bind the private sector. It doesn’t require Twitter or YouTube to do anything at all. Many executive orders are orders from the president to his subordinates, directing them to do things. That’s what this one is. With respect to the communications market (of which the social-media companies are an important part), the most important federal agency is the Federal Communications Commission, an independent agency not subject to the president’s policy control. The executive order signed by Trump on Thursday respects the FCC’s independence. It doesn’t direct the FCC to take action. Some passages of this executive order read like a fit of pique, or an attempt at punishment. Indeed, the order does not obscure the fact that it is, at least in part, a response to behavior by Twitter that Trump didn’t like: adding fact-check labels to two misleading presidential tweets about voting by mail.

An article by Ashley Nunes: Where's my money? That's the question air travellers want answered. As the COVID-19 pandemic ravages economies worldwide, thousands of Canadians are stuck with tickets in hand and no place to go, and they want their airfares refunded. Predictably, airlines are having none of it. The likes of Air Canada and WestJet - which dominate the Canadian air travel market - are instead offering fliers credit that can be used toward future travel. According to WestJet, "...airline tariffs do not always provide for cash refunds especially in cases beyond our  control. WestJet believes refunding with travel credits is an appropriate and responsible approach in extraordinary circumstances such as the COVID-19 crisis." Put another way, good luck getting your cash back. If there's one thing airlines hate, it's issuing refunds. The reason comes down to pure economics. Running an airline is pricey. Commercial jets cost tens of millions of dollars. Add to that maintenance, insurance, and taxes - all of which must be paid regardless of whether or not an airplane flies - and you're talking about serious money.

Joe Biden has been wooing progressives with a list of green initiatives. But even if Democrats take control of Congress, he might have to rely on executive actions to accomplish some of his goals. The presumptive Democratic nominee for president has a $1.7 trillion climate plan that includes myriad proposals — including new regulations on car fuel efficiency, massive increases in government spending, additional taxes on greenhouse gas emissions and rejoining the Paris Agreement. But experts and advocates say Biden would likely have to adjust some of his expectations if Congress can't help, and he may not be able to achieve, for example, net-zero greenhouse gas emissions by 2050. Still, should he win in November, the former vice president would have a wide range of tools at his disposal to make big changes to climate and environmental policy. "When you've got the agencies of the federal government, and you've got the power to steer and direct and appoint, that's a huge power," said Jody Freeman, who leads the Environmental and Energy Law Program at Harvard Law School and was an environmental policy adviser in the Obama administration. "So I see what Biden could do as quite significant, even though we all think it would be pretty fabulous if Congress could do something," she said...And if Biden doesn't get any help from Congress, he might want to double down on regulations and go even further. "It's not that you have to go find other tools in the executive branch. You have to use the regulatory tools you've got to do more," said Freeman. She argued specifically that Biden could write a new version of the Clean Power Plan far more ambitious than the one the Obama administration put forward in 2015, which would have cut emissions 32% below 2005 levels by 2030. Since then, many coal-fired power plants have been shut down, renewable power has become much cheaper, and the sector's emissions have dropped, showing it's possible to do much more, she said. "You can be ambitious with a new version of the Clean Power Plan because the sector itself has made progress, and the market forces are already driving us in that direction, with the cheap cost of natural gas, the penetration of renewables and the rest," she said.

In this episode of Lawfare's Arbiters of Truth series on disinformation, Evelyn Douek and Quinta Jurecic spoke with Gabrielle Lim, a researcher with the Technology and Social Change Research Project at Harvard Kennedy School’s Shorenstein Center and a fellow with Citizen Lab. Lim just released a new report with Data and Society on the fascinating story of a Malaysian law ostensibly aimed at stamping out disinformation. The Anti-Fake News Act, passed in 2018, criminalized the creation and dissemination of what the Malaysian government referred to as “fake news.” After a new government came into power following the country’s 2018 elections, the law was quickly repealed. But the story of how Malaysia’s ruling party passed the act, and how Malaysian civil society pushed back against it, is a useful case study on how illiberal governments can use the language of countering disinformation to clamp down on free expression, and how the way democratic governments talk about disinformation has global effects.

When it comes to President Trump signing an executive order attempting to punish social media companies, Harvard Law Professor Laurence Tribe says the president is ‘creating a problem where there really was none.’

Cass Sunstein, Bloomberg Opinion columnist and Harvard Law professor, discusses his column, "Twitter Strikes Balance Between Liberty and Lies." Hosted by Lisa Abramowicz and Paul Sweeney.

A proposed U.S. Forest Service rule stands to weaken a check on oil and gas development in national forests and possibly give the Interior Department more sway over land leasing decisions, legal analysts and conservationists say. The rulemaking, announced in 2018, aims to align the Forest Service’s leasing practices with those of the Bureau of Land Management to speed up fossil fuel development in national forests and grasslands nationwide, including oil and gas-rich forests in Ohio, Mississippi, and Colorado...The BLM, part of the Interior Department, is in charge of oil and gas leasing on all federal lands, including those managed by the Forest Service—which is part of the Agriculture Department. Federal law prohibits BLM from leasing in national forests without Forest Service consent, Parker said. The Forest Service is remaking its oil and gas regulations at a time when it is weakening environmental checks and balances under the National Environmental Policy Act and joining with the BLM in prioritizing logging and fossil fuels development on federal public lands, said Hana Vizcarra, staff attorney at the Harvard Law School Environmental and Energy Law Program...The service is also working on an update to its mining rules that would expedite mining permit applications with minimal environmental review by aligning the rules with those of the BLM. “When you look at this administration’s track record of pursuing revisions to rules, policies, and practices that favor oil and gas production over resource and ecosystem protection, it implies we’re going to see more of the same here,” Vizcarra said, referring to the Forest Service’s oil and gas rulemaking.

A podcast by Noah Feldman: Dr. Alex Marson, the Director of the Gladstone-UCSF Institute for Genomic Immunology, explains what antibodies tests can and cannot tell us.

There is no freedom more important than the right to free speech. So why aren't more conservatives speaking out now that President Donald Trump has issued his most serious threat in recent memory to our collective First Amendment rights? On Wednesday the president threatened Twitter, a social media platform that he has used for half a decade to advance his political cause, after it included a fact-check label on one of his tweets. First things first: Twitter was indisputably correct in saying that Trump had uttered a falsehood when he claimed mail-in ballots are fraudulent...Yet even if Twitter had been factually wrong, it is still a private company that has the right under the First Amendment to criticize our government and its leaders without fear of reprisal or censorship. It is Trump's job as president to protect those rights even — no, especially — when they are used by those who oppose him... "The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment," Harvard Law professor Laurence Tribe told Salon by email. "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."