Media Mentions

Law schools across America will be facing difficult choices this summer, as orientation sessions for incoming students may be truncated, delayed, or moved online due to the global pandemic. And all must be prepared for the possibility that new law students, many of whom experienced significant disruption in recent months, may experience novel and unexpected challenges preparing for their first year in law school. To assist both law schools and their incoming students, Harvard Law School recently announced plans to offer its online pre-matriculation program, Zero-L, to law schools around the country for free this summer. The course was developed and launched in 2018 in collaboration with the Harvard University Office of the Vice Provost for Advances in Learning (VPAL) to ensure that all incoming Harvard Law students, whatever their backgrounds and previous areas of study, start with a shared base of knowledge. (The name Zero-L is a play on the traditional terms for first-, second-, and third-year law students—1Ls, 2Ls, and 3Ls). Harvard Law Today recently spoke by email with Zero-L’s faculty director, Professor I. Glenn Cohen ’03, about the program, the decision to make it available for free to interested American law schools this year, and how he expects it can help them and their students prepare for the fall semester.

PJM Interconnection and Calpine have indicated that they are willing to come to the table and negotiate alternative long-term solutions to the minimum offer price rule (MOPR) approved by federal regulators in December. The tentative signals come as New Jersey and Maryland ramp up their efforts to explore potential alternatives to the capacity market, frustrated by the order's anticipated consequences on the offshore wind market in the near term, as well as long-term costs. While the grid operator's independent market monitor has found costs will not rise in the next auction, recent analysis from energy consulting group Grid Strategies found the policy could cost customers in the market billions of dollars over the next decade. Competitive power suppliers "finally got what they wanted and apparently now recognize what was obvious to the MOPR opponents - discarding state policies is not a durable solution," Ari Peskoe, Director of Harvard University's Electricity Law Initiative told Utility Dive in an email. "If one state's utilities exit, all that the merchants gain from the MOPR expansion disappears." ...PJM generally would make such a decision through its stakeholder process, as it has indicated, said Peskoe, but through Section 205 of the Federal Power Act the grid operator could also file a capacity auction proposal. "Although FERC rejected PJM's April 2018 filing as unjust and unreasonable in its June 2018 order, there is a long history of FERC deference to RTO market design proposals," he said.

This month the Upcycled Food Association faced a challenging and historic event: creating the formal definition of the term “upcycled food.” Representatives from Drexel University, the Natural Resources Defense Council, the Harvard Food Law and Policy Clinic, ReFED, and the World Wildlife Fund met to do the painstaking work normally left to the Oxford dictionaries of the world. The process of defining this term was so powerful that it has inspired me to challenge the wider waste industry to do something radical: redefine “waste” — literally. Over six months, the Upcycled Food Definition Task Force deliberated the complex implications of the definition and toiled incessantly over every last word. The final product was a summary paper, an infographic, and, of course, the definition itself: "Upcycled foods 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."

A podcast by Noah Feldman: Yonatan Grad, an assistant professor at the Harvard T.H. Chan School of Public Health, explains why we may have to practice social distancing intermittently until 2022.

President Trump instructed federal agencies yesterday to search for regulations they could suspend or kill in hopes of jolting the U.S. economy out of its pandemic stupor. "The virus has attacked our nation's economy as well as its health," the president proclaimed in an executive order that directs agency heads to look for rules "that may inhibit economic recovery." The order permits rules to be suspended temporarily or permanently to aid economic activity and job creation. Trump signed the order at a Cabinet meeting at the White House yesterday afternoon. "We're fighting for the livelihoods of American workers, and we must continue to cut through every piece of red tape that stands in our way," he said at the meeting. Under Trump, EPA has rolled back numerous regulations for air, water and chemicals in the name of streamlining them, and it has proposed to do more. Myron Ebell, who led Trump's EPA transition team in 2016, told E+E News yesterday that the agency had already consulted with the White House on possible rules to freeze under this order...EPA Administrator Andrew Wheeler attended yesterday's Cabinet meeting. A spokesman said the agency will "review the final [executive order] and work to assess which EPA regulations might be available to streamline in order to achieve the goals outlined in the EO." The agency did not immediately say what regulations might be candidates for suspension. Joe Goffman, former chief counsel for EPA's air office under Obama, said in an email to E+E News last night that the agency's obligations and authorities are defined by statutes like the Clean Air Act and Clean Water Act, "not by President Trump's executive orders, which cannot override environmental statutes or substitute rhetorical goals like 'streamlining' for statutory mandates." "Streamlining or suspending rules is governed by these requirements and must be done via the rule-making process, which requires EPA to give persuasive reasons — on the merits — for its actions," he said. Goffman added that public health standards and pollution controls are prerequisites for economic recovery, not obstacles to it.

Seven weeks after Congress unleashed more than $2 trillion to deal with the coronavirus crisis, an oversight commission intended to keep track of how the money is spent remains without a leader. Four of the five members of the Congressional Oversight Commission have been appointed, but House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Mitch McConnell, R-Ky., have not agreed on a chair, leaving the commission rudderless as the federal government pumps unprecedented sums into the economy. Without a leader, the panel’s remaining members can still do some oversight work, but cannot hire staff or set up office space. The four members have not met as a group since the economic rescue law was passed by Congress and signed by President Donald Trump in late March. “If the commission is not functioning — which it is not — then there is no oversight” on a huge part of the economic rescue law, said John Coates, a professor of law and economics at Harvard Law School. So far, “it’s a non-oversight, oversight commission,″ added Kimberly Wehle, a visiting professor at American University Law School. Lawmakers trying to oversee the spending law “are surging down the rapids without a raft,″ she said. Congress created the panel to watch over $500 billion in lending to distressed industries backed by the Treasury Department and Federal Reserve. The Fed has said the money can be leveraged to offer more than $2 trillion in loans to U.S. companies.

An article by Jack Goldsmith and Ben Miller-Gootnick '21: On Friday, May 15, President Trump announced in a letter to Speaker of the House Nancy Pelosi that he was firing State Department Inspector General Steve Linick. Several sources have reported that Stephen Akard, the Senate-confirmed director of the State Department’s Office of Foreign Missions, will replace Linick in an acting capacity. Trump’s firing of Linick is almost certainly lawful. However, it is unclear whether Trump can immediately replace Linick with Akard, if that is the plan. 1. Is the Firing Lawful? Bracketing for a moment the question of retaliation, which we discuss briefly below, Trump’s firing of Linick appears to be lawful. The State Department inspector general is governed by the Inspector General Act of 1978, as modified by the Inspector General Reform Act of 2008 (IGRA). The amended statute states that an inspector general “may be removed from office by the President” but requires the president to “communicate in writing” to both houses of Congress “the reasons for any such removal” at least 30 days before the removal. The reason that Trump provided for the removal in his letter to Pelosi was that he “no longer” had the “fullest confidence” in Linick. This was the exact reason and language Trump used when he fired Michael Atkinson as inspector general of the intelligence community in April.

President Trump on Friday fired the inspector general of the State Department. It was the fourth time he had fired or removed an inspector general in just the last six weeks. As he explained in a letter to Capitol Hill leadership, he had lost confidence in the inspector general, though Democrats were quick to point out that he appeared to be investigating Mike Pompeo on a number of matters, and Mike Pompeo, in turn, had requested his removal. To discuss the Trump administration's removals of inspectors general, Benjamin Wittes spoke with Mike Bromwich, who was the inspector general of the Justice Department during the Clinton administration; Jack Goldsmith, professor at Harvard, who wrote a piece on Lawfare about the legality of removals of inspectors general; and congressional guru Margaret Taylor, who examines the congressional reaction to the moves. They talked about many aspects of the controversy: Is this unprecedented? When have prior presidents removed inspectors general? And what, if anything is Congress going to do about it?

After $14 billion was set aside for higher education in the Coronavirus Aid, Relief and Economic Security Act, Houston Community College and the Paul Mitchell Schools both got financial relief. The Houston college, a public institution with nearly 60,000 students, received $28.3 million. The for-profit hair and cosmetology schools received $30.5 million, despite serving only 20,000 students. The CARES Act money was meant to help low-income students and the schools that serve them. An NBC News analysis found, however, that for-profit schools got proportionally more money from the aid package than the nation’s community colleges, which serve the majority of the country’s low-income students, often at a much lower cost...Florida Career College, a for-profit vocational and trade school, is slated to receive more than $17.3 million in CARES Act funds. But a lawsuit filed in April accuses the school of targeting black students with high-pressure tactics that left them deeply in debt. Only one of the school’s 17 programs passes the federal measure of whether what graduates earn can cover their loans and basic needs, according to a class-action suit filed by Harvard Law School’s Project on Predatory Student Lending. After graduating, students able to find jobs in the area they studied earn between $9,000 and $33,000, the lawsuit claims. “I don’t think the government should be giving taxpayer dollars to companies whose business model is cheating students,” Toby Merrill, director of the Project on Predatory Student Lending, said.

An article by Cass Sunstein: To address the coronavirus pandemic, it’s essential to influence human behavior; to promote social distancing, to get people to wear masks, to encourage people to stay home. Many nations have imposed mandates as well. But to enforce the mandates and to promote safer choices as the mandates wind down, people have to be nudged. To organize current and coming efforts, a simple framework can be captured in an acronym: FEAST. The idea begins with the EAST framework from the Behavioural Insights Team in the U.K., which deserves to be better known. EAST refers to four ideas: easy, attractive, social and timely. If you want people to do something, make it easy for them. They have to know what to do and how to do it, and it should not be too burdensome, painful or costly. Automatic enrollment — for example, in savings plans or green energy — significantly increases participation rates, because it is so easy. Whenever the goal is to change behavior, the best question is easy to overlook: Why aren’t people doing it already? After getting the answer, public officials, employers, schools and others can take steps to remove the barrier. It matters whether an option or message is attractive. A simple and vivid communication has more impact than a dull and complicated one. With respect to Covid-19, officials in Ireland have made excellent use of this insight with striking informational signs. The same is true of New Zealand.

A podcast by Noah Feldman: Bill McKibben, who was one of the first people to warn us about climate change more than 30 years ago with his book "The End Of Nature," discusses what COVID-19 and climate change have in common.

Wildcat strikes, walkouts and protests over working conditions have erupted across the US throughout the coronavirus pandemic as “essential” workers have demanded better pay and safer working conditions. Labor leaders are hoping the protests can lead to permanent change. Norma Kennedy, an employee at an American Apparel clothing plant is one of those people. Kennedy along with dozens of other workers walked off her job in Selma, Alabama, on 23 April after two workers tested positive for coronavirus. The plant has remained open during the pandemic to manufacture face masks for a US army contract...Working conditions, low pay and lack of safety protections have triggered protests throughout the pandemic as workers across various industries, including food service, meat processing, retail, manufacturing, transportation and healthcare have come together to protest about issues, many of which were apparent before the coronavirus...Uber and American Apparel did not respond to multiple requests for comment. Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School, said it was too early to tell if these worker actions around the US will have a lasting impact. “These walkouts show that essential workers don’t want to be treated any more as if they were disposable. They are demanding a voice in how their companies respond to the pandemic. Having a voice is a life-and-death matter now more than ever,” said Block. “Success will be a matter of whether consumers and policymakers will be inspired by these workers’ courage.”

A retired federal judge appointed to oppose the Justice Department’s bid to dismiss former national security adviser Michael Flynn’s guilty plea to lying to the FBI on Monday requested a hearing for oral arguments after he briefs the court. The request for a hearing sets the stage for a pitched legal and political battle triggered by Attorney General William P. Barr’s April 30 move to undo the conviction of the highest-ranking Trump adviser convicted in special counsel Robert S. Mueller III’s Russia investigation...In a 34-page friend-of-the-court brief organized by attorneys with the nonpartisan, nonprofit profit Protect Democracy and Harvard Law School professor Andrew Manuel Crespo, former prosecutors argued Supreme Court precedent gives Sullivan authority to undertake “a searching review” of Flynn’s case and to “protect the public interest in the evenhanded enforcement of our laws.” “Our democracy is safe only when the enormous power of federal law enforcement is applied equally to all citizens based on facts and the law, rather than the political whims of a particular president,” the group wrote. “President Trump and Attorney General Barr have flouted these principles by seeking to dismiss the prosecution of Michael Flynn for what appear to be partisan political reasons.”

An article by Andrew Crespo, Laura Londoño Pardo '21, Nathaniel Sobel '20, and Kristy Parker: In the wake of Attorney General William Barr’s unprecedented decision to drop the Department of Justice’s years-long prosecution of former Trump national security advisor Michael Flynn, many are asking: Is this the end of the case? Two recent orders issued by Judge Emmet Sullivan, the judge presiding over Flynn’s prosecution, make clear the answer is no...Given the unique circumstances of this case—including the nature of Flynn’s actions, the Justice Department’s remarkable reversal, and the facially implausible arguments the department has offered to support that reversal—Judge Sullivan’s obligation to conduct a thorough inquiry into the government’s decision is of the utmost importance. Assisted by Judge Gleeson, he should conduct an evidentiary hearing into the circumstances surrounding the government’s change of heart. And if that hearing confirms what the already available public record seems to show, Judge Sullivan should reject the government’s motion and proceed to exercise the judiciary’s core task at the end of every criminal case in which the defendant has already pleaded guilty: impose a sentence.

An article by Monica Cannon-Grant and David Harris: As the death toll mounts daily from COVID-19, so do the headlines and data documenting its disparate impact on communities of color, especially black people, immigrants, native people, poor people, and those living at the intersections of these identities. The impact of COVID-19 tells a tale of the “web of disadvantage” spun from decades of disinvestment in, and disregard for, poor communities of color. Structural racism is the pandemic; COVID-19’s disparate impact is just a symptom of a long-festering and deadly virus. The disparities and injustice being exposed and underscored by the unequal spread of the novel coronavirus are no revelation. Our people have been living through the pandemic of racism for centuries—too often ignored or unseen as many enjoyed health and prosperity, now suddenly threatened. We won’t dwell on the reasons for the disparities: poverty-stricken communities lack access to adequate personal protective equipment; poor communities of color are overburdened with preexisting social conditions of air pollution and environmental toxicity and food deserts and inequities in healthcare; social distancing is a privilege denied to “black and Latino workers  overrepresented among the essential, the unemployed, and the dead.” In recent weeks as we read about the surge, flattening the curve, protests over supposed infringement of rights, the threat to the economy, and additional billions in relief, we’ve seen more of the same on the streets of Boston. Our people are hurting. Our people are dying.

Jam made with bacon scraps; fish jerky that turns unwanted fish into something delicious; granola bars and snack puffs crafted from spent brewing grams. These are just a few examples of how entrepreneurial ingenuity is transforming food byproducts and scraps into novel and often very nutritious products for human consumption, creating new sources of protein, other nutrients and fiber in the process—and keeping it all out of landfills. “Upcycling,” the new term of art, is one way to reduce reduce food waste and help the environment. But until now, there hasn't been a single standard definition of upcycling, even as the number of startups tackling food waste grows and consumers show more interest in buying products made with upcycled ingredients. Today, May 19, a task force comprised of food industry players, academic researchers an1d nonprofits is unveiling the first formal definition of the term upcycling. The group says the adoption of a single term and definition by the industry will lead to a powerful new product category that will encourage both the food industry and consumers to embrace products with upcycled ingredients...Another task force member, Emily Broad Leib, clinical professor of law, director of the Harvard Law School Food Law and Policy Clinic, and deputy director of the Harvard Law School Center for Health Law and Policy Innovation, said in a statement that scaling up the use of upcycled foods would help make the food supply chain more efficient and resilient. “This upcycled foods definition serves as a strong starting place to help businesses, consumers, and other users align around a common meaning and usage of the term."

In a pair of recent podcasts, Rid joined members of the Brookings community to discuss his new book, "Active Measures: The Secret History of Disinformation and Political Warfare." First up, Rid chats with Harvard Law School Professor Jack L. Goldsmith about the early history of disinformation through the 1980s.

An article by Laurence Tribe: Heraclitus famously said that a man's character is his fate. So too with a presidency. A president's character is inextricably linked to his administration's fate. And one of this president's most characteristic personal failings has begun to manifest itself in his administration's legal arguments. I refer to President Donald Trump's pathological reliance on "I'm rubber, you're glue" thinking—psychiatric professionals call it "projection"—to deflect attacks against him back onto his critics. This president accuses all his adversaries, real and imagined, of the very malignancies of which he is guilty. He did it with the presidential debates, quickly and childishly turning Secretary Hillary Clinton's accusation that he was a puppet of Russian President Vladimir Putin back onto her ("No puppet! No puppet! You're the puppet!"). He did it with race, accusing the four Democratic congresswomen who called out his racism of themselves being racist. And he did it with impeachment, railing for the impeachment of, among others, Speaker Nancy Pelosi, Chairman Adam Schiff and Senator Mitt Romney. Trump and his apologists are back at it again with Michael Flynn. They're offering the same "I'm rubber, you're glue" reasoning, this time covered in the thin veneer of legal argument. They accuse U.S. District Court Judge Emmet G. Sullivan, who presided over the Flynn trial and is poised to sentence Flynn for his federal crimes, of violating our constitutional separation of powers, for doing no more than taking entirely lawful and well-precedented steps to preserve the operations of the judicial branch. But in the end, it is Trump and Attorney General William Barr who are violating the separation of powers by taking lawless and unprecedented steps to undermine the judicial process.

An article by Roberto Tallarita: A popular Internet meme from recent weeks depicts the following scene in the style of an old tarot card. A screaming woman is being sacrificed to a sullen Sun God, her heart ripped out of her chest and offered to the deity. The labels are brutal: the victim is “Grandma,” the Sun-God is the “Economy,” and the figure who kills Grandma to appease the economic deity is “the Economists” (or Trump, or—in a private version shared in one of my WhatsApp groups—a libertarian friend of mine). (Never mind that professional economists are overwhelmingly in favor of strong measures of social distancing.) Crises encourage simplistic contrasts, and the COVID-19 pandemic—the biggest crisis of our generation—has already spurred many of them. One is precisely the contrast presented in this meme: the survival of those infected with coronavirus versus the survival of our economy. Other extreme contrasts are found in countless op-eds, blog posts, tweets, and private conversations: complete social isolation versus health catastrophe; economic paralysis versus economic normality; civil rights versus death. We are fascinated with simple contrasts, it seems, because they pit some obviously sacred value against a deformed caricature of a conflicting interest: the choice between Grandma and a heartless, impersonal “Economy” is much more resolvable than the real dilemma we face.

Here we go again. Facebook, a tech company that suffers from the delusion that it’s a nation state, has had another go at pretending that it is one...On the grounds that Facebook is the world’s largest information-exchange autocracy (population 2.6 billion) he [Zuckerberg] thinks that it should have its own supreme court...So it’s now just an “oversight board for content decisions”, complete with its own charter and a 40-strong board of big shots who will, it seems, have the power “to reverse Facebook’s decisions about whether to allow or remove certain posts on the platform”. Sounds impressive, doesn’t it? But it looks rather less so when you realise what it will actually be doing...One big surprise (for me, anyway) was that Alan Rusbridger, the former editor of the Guardian, should have lent his name and reputation to this circus. In an essay on Medium he’s offered a less than convincing justification. “In the eyes of some,” he writes, “the oversight board is one of the most significant projects of the digital age, ‘a pivotal moment’ in the words of Evelyn Douek, a young scholar at Harvard, ‘when new constitutional forms can emerge that will shape the future of online discourse.’” “Others are unconvinced,” continues Rusbridger. “Some, inevitably, will see it as a fig leaf.” I’m in the fig leaf camp, but even those like the aforementioned Douek – who evidently takes the FOB seriously – seem to have serious doubts about its viability. The most important question, she writes, is about the FOB’s jurisdiction, which of Facebook’s decisions the board will be able to review. “The board’s ‘bylaws’ contemplate a potentially vast jurisdiction, including the power to hear disputes about groups, pages, events, ads and fact-checking,” says Douek. “But the bylaws only promise this jurisdiction at some unspecified time ‘in the future’ and initially the board’s jurisdiction is limited to referrals from Facebook and ‘content that has been removed for violations of content policies’ from Facebook or Instagram.”

J. Crew and Neiman Marcus are among the first major retailers to file for bankruptcy as the coronavirus pandemic further disrupts an industry that was already having its fair share of struggles. Others are expected to follow suit, with JCPenney seeming a likely candidate as it reportedly postpones a major debt payment. Filing for Chapter 11 bankruptcy protection gives distressed companies a chance to reorganize and get a fresh start. But retail companies going through bankruptcy proceedings right now are facing a set of difficulties that wouldn’t be happening if not for the pandemic. Being unable to predict stores’ future sales is a major challenge, as is not having a way to hold going-out-of-business sales while locations remain closed in certain states. Some experts are also starting to worry about what could happen if too many companies end up filing for bankruptcy protection at once...Ben Iverson, a professor at Brigham Young University, and Mark Roe, a professor at Harvard Law School, argued in an op-ed on Project Syndicate that the bankruptcy court system should immediately work to expand its capacity to hear cases in order to avoid these issues. “For starters, special procedures are needed for bankrupts to pay critical suppliers and sometimes employees. If courts are backed up, these payments will be delayed, causing disruptions to ripple throughout supply chains,” they wrote. They continued: “Furthermore, some bankruptcy decisions must be made almost immediately so that businesses can get and keep enough cash to stay alive through their next payroll.” The authors pointed out that bankruptcy filings typically surge several months after unemployment filings start to grow at an exponential rate.