Media Mentions

On a recent Wednesday morning, Sean Daniels pulled a large van up to the parking lot of a community center in Newark, New Jersey. There, volunteers were busy packing potatoes, mushrooms, onions, green beans, and other produce items that had been donated by the meal kit company HelloFresh into dozens of bags to be delivered to local senior centers and affordable housing complexes...Food waste might seem like an odd problem to have during a pandemic, but the shuttering of restaurants, arenas, schools, and other public institutions has created a glut of fresh produce stuck on farms with no buyers. Those producers operate within a completely separate supply chain to those who supply direct-to-consumer markets like grocery stores and food banks...Harvard’s Food Law and Policy Clinic director Emily Broad Leib agreed that restructuring tax incentives for farmers could be an easy way to reduce food waste. But there’s no quick fix for the massive amount of coordination required between various government agencies and food system stakeholders. Leib recommended encouraging states and localities to buy farmers’ excess food as much as possible. And more importantly, she said the government should expand the reach of the Supplemental Nutrition Assistance Program, also known as food stamps, including for online food orders. Leib points out that because every dollar spent on SNAP generates about $1.50 in GDP growth, increasing access to SNAP could also bolster local economies — especially if Americans could easily use the vouchers to buy food from local markets and farmers as well as large supermarket chains. “We have a food system that has a lot of challenges, even in good times,” said Leib. “This pandemic has really shown those frayed edges.”

The justices of the Supreme Court seemed reluctant Wednesday to tamper with the system America uses to choose its president, based on their comments during oral arguments over the workings of the Electoral College. The issue in the two "faithless elector" cases is a simple one: Are the 538 presidential electors free agents, or must they vote in accordance with the election results in their states? If they are free to vote as they wish, a small group of them, or even a single one in a tight contest, could decide who wins...Lawyers for four electors from Colorado and Washington state who did not conform to the popular votes in their states urged the court to rule that states can regulate only how electors are chosen, not how they vote in December. "Once the voting starts, the state disappears," said Lawrence Lessig, a Harvard law school professor arguing before the court. "States have no power to control how an elector may vote." ...Lessig said nothing in the Constitution gives the states authority to restrict how an elector can vote, but several of the justices said the Constitution doesn't explicitly block a state from doing so, either...Lessig has said he hopes the cases will eventually lead to a change in the Electoral College, either through a constitutional amendment or by encouraging more states to adopt a system in which they would assign all of their electors to whoever wins the nationwide popular vote for president.

The U.S. Supreme Court seemed pulled in two directions Wednesday—between the original meaning of the Constitution, on the one hand, and chaos in the 2020 election on the other. The election will take place amid a pandemic, at least a partial economic collapse, and potentially a Supreme Court ruling that could directly affect the election itself. The issue before the court Wednesday was whether states may remove or fine Electoral College delegates who do not vote for the presidential candidate they were pledged to support. The states say they have the power to do that. A group of 2016 electors say they don't...Harvard Law professor Lawrence Lessig, representing the electors, told the court that the founders believed that states can require electors to make a pledge, but that pledge is not enforceable by the states. Justice Clarence Thomas challenged Lessig, asking, "Can the state remove someone who openly solicits payments for his or her vote?" Lessig replied that the state can regulate corruption, but it can't remove electors unless they have been convicted of a bribe or another corrupt act. The justices seemed particularly disturbed by this assertion, asking all four attorneys arguing the case to weigh in on the possibility of states being powerless to remove electors who accept bribes...Lessig acknowledged the risk of chaos, but reiterated that he believes the risk is small. He added that there is "risk on both sides."

Supreme Court justices invoked fears of bribery and chaos Wednesday to suggest they think states can require presidential electors to back their states’ popular vote winner in the Electoral College. The justices heard arguments on an unusual voting issue that could have important consequences for the 2020 presidential election in an era of intense political polarization. A focus of the questions was whether states can replace electors who decide to vote for someone other than the state’s popular vote winner. If they can’t, “it would lead to chaos,’’ Justice Samuel Alito said, “where the popular vote is close and changing just a few votes would alter the outcome." ...Harvard Law School professor Lawrence Lessig, who favors broad changes in voting, redistricting, and the way campaigns are funded, represented the Washington electors at the Supreme Court. Lessig briefly sought the 2016 Democratic nomination and called for presidential electors to support Clinton because she won the national popular vote four years ago. Lessig warned that binding electors could open the door to other restrictions, including denying electoral votes to candidates who don’t visit their states or fail to release their tax returns.

The Supreme Court set out to clarify the nation’s age-old rules for the Electoral College system of selecting U.S. presidents, considering whether presidential electors can go rogue and ignore the voter-chosen candidate. The court, in its final teleconference arguments of the term, spent more than two hours Wednesday considering whether a state can remove or punish “faithless” electors who don’t follow its popular vote...The overwhelming majority of electors don’t attempt to break ranks, but faithless votes have been sprinkled throughout the nation’s history, starting with the first contested presidential election in 1796...Justice Samuel Alito raised the possibility of chaos, with a losing party seeking “to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.” “We deny it’s a good possibility. We don’t deny it’s a possibility,” responded Harvard law professor Lawrence Lessig, representing faithless electors from Washington state...Mr. Lessig told the justices that his clients are expected to follow instructions from voters, but with discretion built in. Electors, he said, are constrained “by moral and political obligations,” not legal ones.

At a time when his political power is slipping away, President Trump now looks to the courts to bolster his extreme theory of executive branch supremacy. In doing so, he risks precedent-setting rebukes from federal courts. In the first instance, Trump’s attorney general, sparing Trump the trouble of a pardon, seeks to dismiss the case against former national security adviser Michael Flynn — after Flynn has pleaded guilty. This disdain for impartial justice tests the limits of federal courts’ patience with Trump’s attempts to run roughshod over an equal branch of government. Constitutional scholar Laurence Tribe told me that “it’s not just a minor point that the court has already determined that the guilty pleas were well founded and has accepted Flynn’s waiver of any right to appeal the conviction those pleas supported.” He argued that not only could U.S. District Judge Emmet G. Sullivan reject the attempt to short-circuit the judicial process but that he has to do so. “Notably, [Attorney General] William Barr isn’t arguing that there’s dispositive newly discovered evidence that was unavailable when the court made its determination to accept Flynn’s pleas of guilty,” he pointed out. Instead, “In the guise of appealing to the court’s discretion, Barr is asking the court to treat its earlier adjudication as merely advisory and to give effect to the decision by the executive branch that the advice should be rejected.”

Millions of Americans are risking their lives to feed us and bring meals, toiletries and new clothes to our doorsteps — but their pay, benefits and working conditions do not reflect the dangers they face at work. Why it matters: People who stock grocery shelves and deliver packages never expected to be on the front lines of a national crisis, and now they're playing a vital, but undervalued, role...What's happening: Some companies, including Amazon and Walmart, increased hourly pay or distributed cash bonuses to low-wage workers when the pandemic began — in recognition of the hazards involved — but many of those pay bumps are expiring as employers worry about how much longer the pandemic will last...The bottom line: The coronavirus crisis is exposing the ugly ways in which low-wage workers are treated — by employers and customers alike. "But for the first time, the workplace conditions of low-wage workers are directly relevant to the whole country," says Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School...Says Block: "The fates of workers and consumers are tied together in a way that the American public has never known before."

Here's the Radio Boston rundown for May 12...The Supreme Court heard arguments today in three cases that could potentially transform the power of the executive branch. We break them down with WBUR's legal analyst and retired federal judge Nancy Gertner. Loneliness was a growing concern in the U.S. even before coronavirus lockdowns. We speak with Dr. Vivek Murthy, the former surgeon general of the United States under President Obama, on his biggest worries about loneliness in the U.S. now.

The fate of former national security adviser Michael Flynn lies in the hands of a federal judge with an established reputation of being a fiercely independent thinker. U.S. District Judge Emmet Sullivan, who was appointed to the bench in 1994 by former President Clinton, will determine whether to grant the request by the Department of Justice (DOJ) to drop charges against Flynn, who pleaded guilty in December 2017 to lying to federal agents about conversations he had with then-Russian ambassador Sergey Kislyak. On Tuesday evening, Sullivan pulled a surprise, announcing in a court filing that he would allow interested parties to weigh in on the case with amicus briefs, an unusual move for a criminal prosecution, and enter a scheduling order “at the appropriate time.” The move was opposed by Flynn's lawyers, who argued that it would be inappropriate to allow third parties to weigh in on the case...Nancy Gertner, a former judge for the U.S. District Court in Massachusetts who was appointed to the bench in 1994 and now teaches at Harvard, said she expects Sullivan to press the DOJ on their decisionmaking. “I actually expect him to call witnesses and demand that the government justify taking what is an extraordinarily unusual position, extraordinarily unusual, and find out why,” said Gertner... “Defense lawyers all across the country are salivating about this memo because if this applies in other cases, a lot of people are going to walk free. But of course, it won’t apply in other cases,” said Gertner. “I think people are certainly going to try to use it, but the point of this is Shea distorted the law in order to move to dismiss the accusations against Flynn.”

The Supreme Court is set to hear arguments Wednesday in a pair of cases that could impose new rules on the Electoral College just months before the November election. Justices will be weighing in on “faithless electors,” members of the Electoral College who choose not to support the presidential candidate picked by the voters in their state...The Supreme Court is now being asked to decide, just months before another presidential election, whether electors are bound by the popular vote results in their states. How the justices answer that question could have significant consequences on Election Day. “It’s critically important to resolve the rules of this election before the election takes place,” Lawrence Lessig, a renowned Harvard Law School professor representing the electors, told The Hill. “The worst thing imaginable would be for this question to get raised after the vote has been taken when a decision by the court would basically choose who becomes president.” ...Lessig has been an outspoken critic of the Electoral College system, which has been at odds with the popular vote in two recent presidential elections — in 2000 and 2016 — and three in the 19th century. The two cases before the Supreme Court are a key component of his broader push for the elimination of the Electoral College in favor of elections determined by popular vote. “It’s important because we think it will make clear a fundamental design choice the Framers made about the Electoral College and help everybody focus on the question of whether this is the type of Electoral College that we want,” Lessig said.

It’s hard to know what the world will look like in six months, but many states are already gearing up for the U.S. presidential election in November. In California, for instance, Governor Gavin Newsom just signed an executive order making California a mail-in state...Every state has some sort of absentee voting. Whether you’ll qualify will depend on where you’re registered. You can vote absentee in every state if you are in the military, traveling overseas or have an illness or disability you know will prevent you from getting to the polling place...Other states let you vote absentee no matter what, no excuse necessary. Five states hold mail-in elections, meaning everyone is mailed a ballot. In most states, though, you’ll need to request a ballot ahead of time to vote absentee — it won’t automatically be mailed to you...It’s possible things could change in the next few months. “We might see states revising their own laws before November,” said Nicholas Stephanopoulos, a professor of law at Harvard Law School. “There’s been some movement in that way already about making absentee voting easier in states.” ... "Vote by mail has a number of safeguards built in. The ballots are sent to registered voters. There’s then signature matching when the ballots are returned,” Stephanopoulos said. “At the same time, fraud is so darn inefficient, if you commit it at a reasonable scale, you’re going to be caught.” He points to a Republican political operative in North Carolina who was charged last year with tampering with absentee ballots. At the same time, Stephanopoulos said, the five states with regular voting by mail show no signs of substantial fraud.

A federal judge overseeing the criminal case of President Trump’s former national security adviser Michael T. Flynn opened the door late Tuesday for legal experts and other outside parties to oppose the Justice Department’s motion to drop the case, suggesting he has at least some skepticism about the government’s argument that Mr. Flynn should never have been charged. In a brief order, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia said he would set a schedule for outside parties to present arguments about the government’s request to dismiss the case. He did not directly address the Justice Department’s motion to drop the charge, but legal experts said he appeared open to considering not only the department’s arguments but also those who have challenged its move as politically motivated...But its reversal raised serious questions about whether the Justice Department was treating Mr. Flynn differently from the hundreds of other defendants who are convicted each year of lying to federal authorities. “The judge could be concerned this is cronyism,” said Nancy Gertner, a former federal judge who now teaches at Harvard Law School. “I would predict that he holds a hearing and has the prosecutors justify the decision they made.” “When a defendant has gone all the way down the line to pleading guilty, the bar to dismiss has to be high,” she said.

The U.S. Supreme Court hears arguments Wednesday in a case that could affect the outcome of the 2020 election, and all future presidential elections, in unforeseeable ways. At the heart of the case is the Electoral College, which though it is enshrined in the Constitution, has for the most part been a mere formality for over the past two centuries. Specifically, the question is whether Electoral College delegates are a rubber stamp for the will of American voters in each state, as most people have assumed, or if they have the power to decide for themselves who they want to vote for when the Electoral College meets...The question before the Supreme Court on Wednesday is whether the states have the power to remove or fine such so-called faithless electors. Harvard Law School professor Lawrence Lessig, who has taken the electors case all the way to the high court, says these Electoral College delegates are "not faithless," but instead they were simply doing what the Founding Fathers envisioned, exercising their independent judgment and their consciences. "It's clear that the Framers thought [electors] had discretion," Lessig says...Harvard's Lessig agrees with Smith that the Electoral College has increasingly become a dysfunctional instrument of democracy. But he says, "The way to solve this problem is a constitutional amendment." That, however, could be harder than it seems. A constitutional amendment requires two-thirds of both the House and Senate to approve, and three-quarters of the states.

An article by Cass Sunstein: I love cost-benefit analysis. But for the coronavirus pandemic, cost-benefit analysis and I are going to have to see a marriage therapist. We might be headed for a divorce. Consider the following questions: What kinds of restrictions should states be imposing on work, play and freedom of movement? When should they open up for business? How open should they be, exactly, and exactly when? To answer such questions, governors, mayors and President Donald Trump seem to be engaging in a kind of intuitive cost-benefit analysis as they struggle to balance the value of increased economic activity against the threat to public health. Regulators and executive-branch policymakers try to be more rigorous in their analysis of costs and benefits. They ask: How do you calculate the benefits of restrictions, and what’s the right measure of costs? They try to come up with reliable numbers. The goal is to impose restrictions when (and only when) the benefits exceed the costs — and to adopt an approach that has the highest net benefits, that is, benefits minus costs. You might not think that’s the loveliest way to proceed, but the basic thinking is simple: Official decisions should have the best possible consequences for people. Looking at costs and benefits is the best available way of figuring out what decisions will have the best consequences.

An article by Noah Feldman: You might think that the Supreme Court case regarding President Donald Trump’s tax returns is about him, or least about the power of the presidency. It isn’t. As Tuesday’s live-streamed oral arguments made clear, this is a case about Congress — and whether its oversight authority will be stripped away by an activist Supreme Court. The Constitution gives Congress “all legislative powers herein granted.” The text of the Constitution doesn’t speak of “legislative oversight” because the phrase itself wasn’t used until the 1830s, and didn’t become widespread until after World War II. But make no mistake, Congress has exercised what we call legislative oversight from the very beginning. The way Congress did so was no different from the way it does now: The legislators held hearings, asked questions and subpoenaed documents. The tradition is robust. Today Congress holds a range of different kinds of hearings, including hearings labeled legislative, oversight, investigative, confirmation, ratification and impeachment. All of them include oversight of government in one way or another.

President Trump’s campaign has denied he’d want to move the November election, but even if he wanted to, the president has no power over when America holds federal elections. If not the president, then who does? Congress. Unlike some constitutional language that can be widely interpreted, the founders were unambiguous about how Election Day would be chosen: Congress is charged with choosing the date, and that date must be the same for the entire country. Congress chose a date, the first Tuesday following the first Monday in November, in 1845, and it has never been changed...But haven’t lots of states changed primary election dates? This is different from primary election dates, which are set by states governed by different rules. For general elections for federal offices, states are bound by federal law. Any effort by a state to unilaterally move or cancel the November election would be unlawful, and any results of a future election would be invalid, said Nicholas Stephanopoulos, professor at Harvard Law School.

A podcast by Noah Feldman: Boaz Weinstein, founder of the hedge fund Saba Capital, discusses why the stock market seems to be doing relatively well when the economy is in shambles.

A human rights lawyer in the Philippines, Fulgencio S. “Jun” Factoran LL.M. ’69 served as secretary of the Department of Environment and Natural Resources, appointed by President Corazon Aquino.

Vincent P. McCarthy ’65 began his career managing Bobby Kennedy’s Massachusetts presidential campaign and co-founded the Robert F. Kennedy Children’s Action Corps, a child welfare agency. In the early ’70s, after joining the law firm that became WilmerHale, he came out as one of the few openly gay partners at a major U.S. law firm, battled alcoholism and achieved permanent sobriety. He went on to co-found the Human Rights Campaign (today the nation’s largest advocacy group for LGBT people), the Mass. Lesbian and Gay Bar Association, and the Massachusetts Governor’s Advisory Committee on Gay and Lesbian Youth, and helped organize gay and lesbian alumni throughout Harvard (leading to a university-wide nondiscrimination policy in the early 1980s).

Early in his career, Paul L. Perito ’64 served as an assistant U.S. attorney in the U.S. Attorney’s Office for the Southern District of New York, as chief counsel and later as staff director to the U.S. House of Representatives Select Committee on Crime, and as chief counsel and deputy director of the White House Special Action Office for Drug Abuse Prevention. He went on to a career in private practice as a partner at Paul, Hastings, Janofsky & Walker and was an officer and member of the board of directors at Star Scientific Inc. From 2012 to 2014, Perito served as president of the Harvard Law School Alumni Association.

Jerome E. Hyman ’47 had a long and distinguished career at the firm that is now Cleary Gottlieb Steen & Hamilton, focusing on corporate and securities matters. For many years he was the principal corporate counsel for leading companies including Pan American World Airways, Macy’s and Scientific American. He also was a longtime philanthropist, a participant in civic affairs, and a public-spirited humanitarian. A supporter of Harvard Law School for more than 50 years, he served as a member of the HLS Visiting Committee and on the Advisory Board for the HLS dean.