Media Mentions

Never before did parents think they’d be encouraging more screen time. But now, in the midst of a pandemic and nation-wide social distancing, we’re telling our kids to get online. That is, when they don't have to share the Wifi with the adults in the house...With school lessons online on Zoom, and social media like TikTok all the rage, what's the impact of double the screen use? And what are the privacy implications of virtually sharing so much of our personal lives? Guests: Dr. Delaney Ruston - primary care physician based in Seattle, documentary filmmaker, and creator of award-winning film "Screenagers" and "Screenagers NEXT CHAPTER." Leah Plunkett - associate dean and associate professor at University of New Hampshire Franklin Pierce School of Law, faculty associate at the Berkman Klein Center for Internet and Society at Harvard, and author of “Sharenthood.”

A coalition of 20 elite legal scholars on Friday submitted a legal brief imploring the federal judge overseeing the prosecution of retired lieutenant general Michael Flynn to deny the Justice Department’s motion to dismiss the criminal case against the former National Security Advisor. According to the brief, U.S. District Judge Emmet Sullivan is under no obligation to mechanically grant the DOJ’s controversial motion. There is no valid reason the court should be prevented from imposing a lawful sentence against a defendant who has twice pleaded guilty to committing a federal crime, the lawyers argued. Led by Harvard Law School Professor Laurence Tribe, the group also included Berkeley Law legal scholar Erwin Chemerinsky, Cornell Law’s Michael Dorf, Chicago University’s David Strauss, and Trump nemesis/attorney and Lincoln Project co-founder George Conway...Rather than dismissing the case, Sullivan controversially appointed retired federal judge John Gleeson as amicus curiae to present arguments as to why Flynn shouldn’t be held in criminal contempt. Sullivan has also given non-court-appointed amici curiae (such as Conway, Tribe, et al. and Watergate prosecutors) an opportunity to weigh in.

On Twitter, President Donald Trump has tossed his support behind the antimalarial drug hydroxychloroquine, which some public health experts have warned can have serious or potentially fatal side effects, as a COVID-19 treatment, and he’s encouraged protesters rallying against stay-at-home mandates — putting a strain on the social media site’s policy against content that could prompt real-world harm. And Trump hasn’t been the only world leader testing those boundaries in recent months. In March, Twitter Inc. deleted two tweets from Brazilian President Jair Bolsonaro that also praised the use of hydroxychloroquine to treat COVID-19 and encouraged the end of social distancing guidelines in his country. Twitter also deleted a tweet from Venezuelan President Nicolás Maduro promoting a “natural brew” to cure the illness...Dipayan Ghosh, co-director of the Digital Platforms and Democracy Project and Shorenstein fellow at Harvard’s Kennedy School of Government, said since removing questionable content from politicians and world leaders can be tricky, it’s important for the platforms to be transparent about how they determine what content violates their rules. “I’m sure that companies like Facebook and Twitter have developed internal guidelines around what to do if and when a public official says a particular type of thing concerning something that is particularly offensive,” he said. “What they should do is make those policy guidelines public so that we can see how their decision making is done.”

Dipayan Ghosh’s new book, Terms of Disservice: How Silicon Valley is Destructive by Design calls for a Digital Bill of Rights, anti-trust action on Big Tech and new rules to ensure the tech titans have American democracy in mind. But in this interview, he surprised us! He says YES to Google digitizing NYC with Governor Cuomo, YES to Big Tech running coronavirus Track and Trace if done carefully...and he goes deep with us on privacy, consumer rights, and using tech in a crisis.

What price does the U.S. government put on saving a life? The coronavirus pandemic and the push to reopen the nation and the American economy have resurfaced the notion that the federal government is often faced with the tough decision of choosing between taking an action that could save lives and the cost of implementing that policy or regulation. Harvard Law School professor and American legal expert Cass Sunstein joins the podcast to discuss this heavy topic. He draws upon his experience heading the White House Office of Information and Regulatory Affairs during the Obama administration and the calculus that goes into the cost-benefit analysis of regulations. “It’s very normal, and it’s surreal” to weigh the cost of an American life, Sunstein says in the podcast. “The balancing as you say of lives saved against cost happens all the time. And there are strategies the government uses and that are not politically contested really to handle them.” For instance, a new clean air regulation that might save one life at a cost of $90 billion — that’s probably dead on arrival. However, a transportation safety change that is estimated to save 500 lives a year at a cost of $10 million has a much better shot as a high-benefit, low-cost regulation.

An appeals court Thursday ordered the judge in Michael Flynn’s case to defend his actions after Flynn’s attorneys asked that his conviction be dismissed immediately, as requested by the Justice Department. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit took the unusual step of ordering U.S. District Judge Emmet G. Sullivan to answer within 10 days accusations from Flynn, President Trump’s former national security adviser. The court also invited the Justice Department to comment. The order comes as legal scholars from across the political spectrum debated the case’s implications for judicial independence and the Constitution’s separation-of-powers design. “This case does not involve a decision by the Executive Branch simply to ‘drop’ a prosecution,” but a “virtually unprecedented decision” to dismiss a case after it has been won, wrote a group of about 20 legal experts, led by Harvard law professor Laurence H. Tribe, in a brief to be filed Friday...Tribe said his group will request to file a friend-of-the-court brief, saying the circuit panel’s order “makes it all the more urgent” and that the panel should deny Flynn’s request because granting it would be “a remarkable abuse of judicial authority.” Tribe’s co-signers include constitutional law scholars, the former law school deans of Harvard, Yale and the University of Chicago, and the president of Columbia University. Republican signers include George T. Conway III, the conservative lawyer and husband of the president’s White House counselor, Kellyanne Conway; Trevor Potter, former Federal Election Commission chairman; and Richard Painter, George W. Bush’s former chief White House ethics lawyer.

Donte Martin authored an illuminating as-told-to essay for The Washington Post last week about working in a grocery store during the pandemic. Martin, a front-end manager at a Giant in Silver Spring, Maryland, explained how the coronavirus has rendered customers he’s always loved a health threat. Many shoppers ignore the policies meant to protect workers like Martin and even get angry over the requirement that they wear face coverings in the store. He said a supervisor even told him not to wear a mask at one point, saying it made him look like “a terrorist.” Martin’s piece didn’t mention that he is a member of a union, the United Food and Commercial Workers Local 400. But if not for his union representation, he almost certainly would not have shared his experience with the world...Of course, those are the same reasons many employers and conservative politicians despise unions: They make it harder to get rid of workers, even though most collective bargaining agreements still allow layoffs for legitimate business reasons. But it’s hard to deny that there’s a public benefit to workers having the agency to speak out in a pandemic. After all, Martin wants to protect not just himself and his colleagues, but his customers, too. Terri Gerstein, a labor lawyer and fellow at the Harvard Law School Labor and Worklife Program, said safeguards like just cause are more important than ever. “Protection against unlawful firings is absolutely critical right now,” Gerstein said. “Workers need to be able to speak up without threat of losing their jobs. That’s important for worker safety and for public health.”

The lockdown on commercial industry and personal activity in response to the global Covid-19 pandemic has been in place for almost two months in many parts of the U.S. Due to financial desperation and frustration with isolation, nonessential businesses are starting to reopen and more people are going out in public despite ongoing health concerns. Seeking to frame this economically driven agenda with a veneer of public health responsibility, governments and businesses are implementing a variety of precautions, including using thermal imaging cameras to detect elevated skin temperatures. Unfortunately, the use of this technology, like some of the others in the pandemic response kit, is “security theater,” to use a term coined by the security and privacy expert Bruce Schneier. It’s a dangerous, possibly life-threatening mirage that looks like strong leadership but, in fact, shimmers over empty promises that inspire false confidence about personal health and safety. Schneier has been warning us for years of this kind of facade, calling out familiar examples, from offices stationing a “uniformed guard-for-hire” to check visitors’ ID cards to airports banning liquids and using full-body scanners to search for explosive material that, it turns out, they are not great at detecting anyway. So much magical thinking pervades airport security that Schneier has bluntly declared, “The two things that have made flying safer since 9/11 are reinforcing the cockpit doors and persuading passengers that they need to fight back. Everything beyond that isn’t worth it.”

Several years ago, Harvard Law School (HLS) administrators observed that the profile of incoming law school students was very different than it was even a decade ago. Students coming to HLS now reflected many different backgrounds and lived experiences, with many more having majored in a STEM field in college, spent four or more years in the workforce, or come to HLS from abroad. In response, in 2018 HLS worked with the Harvard University Office of the Vice Provost for Advances in Learning (VPAL) to launch a new online, pre-term course called Zero-L—meant to ensure that all incoming students, whatever their backgrounds and previous areas of study, start with the foundational knowledge that will enable them to thrive in law school...Professor I. Glenn Cohen ’03, part of the HLS committee responsible for developing Zero-L, notes, “The learning curve at law school can be steep.” Zero-L was designed as an “on-ramp to help ease this transition; we want to ensure all law students have access to that on-ramp.”

Amid wide concern driven by the COVID-19 pandemic (Is it safe to attend?) and recession (Can I afford it?), with many colleges and universities expecting enrollment to plummet this fall, Harvard Law School (HLS) has decided to offer Zero-L - its online, pre-matriculation orientation to legal education free to law schools nationwide, beginning July 1. This "on-ramp" to the unique features of legal reasoning, writing, and pedagogy (reported in detail here) was designed to introduce students from diverse backgrounds, with increasingly diverse academic preparation, to their first-year experience, so they can embark on their professional education more confidently and proficiently... "I know first-hand the devastation this pandemic is causing to our social structure," said Zero-L faculty director, Attwood and Williams professor of law I. Glenn Cohen, who specializes in health law and bioethics. "I know how many students are finding their time in college disrupted, and their plans to really 'hunker down' and get ready for law school disrupted by a sick family member or the need to help support their families." In light of those constraints, and the limitations on regular orientations this summer, he continued, "[K]nowing we had an excellent course with a demonstrated ability to help students start law school, making it freely available this year seemed like a small thing HLS could do for law students and law schools across the country to try to make the fall 2020 just a little bit easier."

How do you read and brief a case? What’s the purpose of the Socratic Method? What should a new law student expect once they arrive on campus? For the past two years, Harvard Law School has covered those topics and more via Zero-L—a 14 hour-online program for its incoming students that is designed to give them a smoother transition into law school life. (The name is a reference to 1L, the widely used shorthand for the first year of law school.) On Wednesday, the elite law school announced that it is making Zero-L free and available to all law schools this summer in response to the COVID-19 pandemic. “This has been an incredibly challenging period for so many,” said Harvard Law dean John Manning in an announcement of the program’s expansion. “If Zero-L can help ease the transition and strengthen student success at other law schools as is has done at [Harvard], then we want to offer that support to all law schools by waiving the fee and making the course available for free this year.” Harvard already was planning to make Zero-L available to other law schools this summer for a fee, but opted to drop the cost amid the coronavirus pandemic. The program could prove especially useful this summer if law schools must shorten, delay or move their orientations online due to the virus, according to the school.

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.