Media Mentions

Election Day is Nov. 3, but the winner of the White House traditionally isn't official until December, when 538 presidential electors confirm the results. On Wednesday, the Supreme Court will consider giving those virtually unknown people more than perfunctory power. The justices, customarily allergic to politics, appear on track to decide a threshold question that haunts the way presidents and vice presidents are chosen: Must the men and women chosen on Election Day to cast ballots for the winner of their state's popular vote keep their pledge? Or can they go rogue? Never before have these electors flipped an election. But 10 electors were disloyal or tried to be in 2016, enough to change the results of five previous presidential elections. And there's a first time for everything...The Supreme Court decided in January to hear both appeals, lest it be forced to intervene in a potential emergency situation after Election Day should an electors' rebellion this fall potentially affect results. "This court should resolve this conflict now, before it arises within the context of a contested election," Harvard Law School professor Lawrence Lessig urged on behalf of the three Washington State electors. "As the demographics of the United States indicate that contests will become even closer, there is a significant probability that such swings could force this court to resolve the question of electoral freedom within the context of an ongoing contest," he warned.

An article by Sabi Ardalan: Sixty people in bunk beds in one room. A communal bathroom. Time in the ‘hole’ – or solitary confinement – if sick. That is how one asylum-seeking client describes the situation in immigration detention during COVID-19. Held in private, for-profit detention centres for more than 16 months, this client has difficulty breathing, a racing heart, and other complications from a stab wound he suffered before fleeing his home country. In recent weeks, he has described constant and debilitating body aches and pain. But despite repeated requests to see a doctor, he has not received any medical attention.  This client’s case is just one example of the disproportionate and devastating impact of the COVID-19 pandemic in the United States – and, as important, the Trump administration’s malicious response to it – on refugees and asylum seekers. Lawsuits challenging immigration detention during COVID-19 have met with varying degrees of success across the country. The judge who heard this client’s case has thus far refused to order his release, convinced by the warden that social distancing was possible. Some judges have, however, mandated the release of immigrants from detention, citing the rapid spread of COVID-19. Others have ordered Immigration and Customs Enforcement to assess whether medically vulnerable immigrants should be detained. But this piecemeal approach has left many of the approximately 50,000 immigrants detained each day in the US at risk of contracting the virus.

An article by Ashley Nunes: Commercial aviation is seeing its darkest period ever. That’s according to Air Canada chief executive officer Calin Rovinescu. Mr. Rovinescu, who has led the airline since 2009, is grappling with a simple yet thorny question. How do you balance the books when no one wants what you’re selling? Airline executives around the world are facing the same challenge as COVID-19 brings air travel to historic lows. So far, the response has been to ground airplanes and furlough workers – that, and tap into taxpayer funds. Yes, in a move that will surprise few, C-suite executives now want government to help. For Air Canada, it’s hardly the first time. After the Sept. 11, 2001, attacks, the carrier received $100-million from Ottawa. In 2009, Air Canada pushed for – and secured – a government commitment for financial relief in the form of lower obligatory payments to its underfunded pension plan. What concessions the carrier extracts this time around are anyone’s guess. One thing is certain: With losses topping $1-billion in the latest quarter, the carrier needs help, and fast. Airlines have already tapped into Ottawa’s emergency wage subsidy, and they could be eligible for a new bridge-financing program for large employers. But make no mistake, more help is coming.

The Department of Justice decided last week that it was dropping all criminal charges against Donald Trump’s former national security advisor, Michael Flynn. In 2017, Flynn pleaded guilty FBI for lying to the FBI about his conversations with the then Russian ambassador and made a plea deal with special counsel Robert Mueller. During her many years of working within the legal system, retired federal judge Nancy Gertner told Jim Braude on WGBH News' Greater Boston that she has never seen the DOJ drop a case like this. “I’ve seen the DOJ dismiss cases, but not after someone pleaded guilty to them, twice,” she said. Attorney General William Barr rationalized the DOJ’s decision during an interview with CBS NEWS Thursday. "People sometimes plead to things that turn out not to be crimes, and the Department of Justice is not persuaded that this was material to any legitimate counterintelligence investigation. So it was not a crime," he said. Gertner said she would not let either Flynn or Barr off the hook if she was presiding over the case. “I would have certainly held a hearing. Bring Barr into the court room,” she said. “Who put their thumb on the scale here?” Gertner is worried that this decision could hold precedent for future criminal cases. “If the standards that Barr used in this memo were applied to other cases across the country, they would all be thrown out,” she said.

An article by Cass Sunstein: In Congress and the executive branch, U.S. officials are about to face an unexpected dilemma, one that will define a range of domestic policy in the coming years, and that has the potential to redefine how Americans think about the modern regulatory state. On the one hand, the coronavirus pandemic has made it unmistakably clear that in some areas, the U.S. needs more regulation, especially to protect health and safety. On the other hand, the economic destruction it has caused will require new caution about costly regulatory mandates. Businesses, large and small, are facing unprecedented challenges. For many of them, survival is at stake, and expensive regulations might prove devastating. It is almost certain that the administration of President Donald Trump will be keenly alert to the second point, while neglecting the first. There’s also a risk that progressives — including those in charge if Joe Biden wins the White House in November — will be keenly alert to the first point, but insufficiently appreciative of the second. Over the past three years, Trump’s regulators have kept down the costs of new regulations. On an annual basis, those costs have been far lower than they were under Presidents Bill Clinton, George W. Bush and Barack Obama. (Regulatory costs were not officially documented before 1998.) The less good news is that Trump’s regulators have also produced unprecedentedly low benefits, a category that includes not only purely economic savings, but also reductions in death and disease.

An article by Noah Feldman: It’s not exactly the Montgomery bus boycott, and Elon Musk is no Rosa Parks. But Tesla is apparently engaged in a highly unusual act of corporate civil disobedience. Ordered by Alameda County health authorities to keep its Fremont, California mega-plant shuttered, the company opened the factory over the weekend and started making cars. On Monday, its employee parking lot was reported to be almost full, suggesting a near-total reopening. CEO Elon Musk had announced two days earlier that the company would be suing the county in federal court. That lawsuit hasn’t yet yielded any results, however. So far as it’s possible to determine, Tesla is knowingly and intentionally breaking the law. If that sounds extreme, it should. Corporations aren’t supposed to engage in unlawful disobedience. The principles of corporate law treat intentional unlawful conduct as a violation of the corporation’s fiduciary duty to its shareholders. A glance at Tesla’s lawsuit is enough to reveal that the company’s case is not a sure winner. The first and central argument seems to be that because manufacturing cars counts as critical infrastructure exempted from a statewide shutdown under the California governor’s guidelines, Alameda County can’t shut down the plant.

A podcast by Noah Feldman: Jacob Weisberg, the CEO of Pushkin Industries, interviews Noah Feldman about his new book "The Arab Winter: A Tragedy" which comes out today.

After two years of discussion and planning, Facebook finally announced the first members of its Oversight Board, the so-called "Supreme Court" that will adjudicate problematic content cases for the social network. The 20 initial members are an impressive group, with a Nobel Peace Prize winner, multiple experts in constitutional law, former judges, etc. But there are still plenty of problematic questions surrounding the board, including: How much power will they actually have? And is their existence just an elaborate fig leaf to redirect blame for Facebook's content decisions and make it look like they care?...Our first guest is Evelyn Douek, who is an S.J.D. candidate at Harvard Law School and an affiliate at the Berkman Klein Center For Internet and Society. Evelyn studies international and transnational regulation of online speech and content moderation institutional design. Prior to coming to HLS, she was a clerk for the Honourable Chief Justice Susan Kiefel of the High Court of Australia. She graduated with First Class Honours from the University of New South Wales with a Bachelor of Commerce/Laws in 2013, and is the host of an interview podcast featuring Professors at Harvard Law School called Leading Questions. She also blogs at Lawfare.

When Ekpar Asat saw his older sister for the last time one winter night in Manhattan, he promised her he would return to the United States in a few months with their parents to watch her graduate with a master’s degree from Harvard Law School — the first ethnic Uighur to do so. But three weeks after returning to China from that trip in 2016, when he was attending a prestigious State Department leadership training program, he disappeared into the shadows of a vast detention system in the country’s northwest. This winter, his sister, Rayhan Asat, heard that he had been sentenced to 15 years in prison on suspicion of inciting ethnic hatred...In early March, two months after finding out about his sentencing, she decided to speak publicly at Harvard Law School about his case and the crisis in Xinjiang. “I know from trying to help Rayhan Asat over the past four years that she is a person of real courage and integrity,” said William P. Alford, the vice dean and law professor who hosted the talk. “The case of her brother, arrested right after returning from the U.S. and largely shrouded by Chinese authorities, is tragic.” Ms. Asat said she was aware her family might suffer reprisals as a result of her speaking out. That has happened to other Uighurs abroad. But she said her brother’s ordeal had made her realize that no matter what she and her family do to conform as model citizens, the Chinese government sees Uighurs “forever as outsiders.”

An article by Laurence Tribe: US District Judge Emmett G. Sullivan unquestionably knows that when a federal defendant pleads guilty but then asks to be relieved of his fate, it is up to the court to decide the merit of his argument — no matter who supports it, including a prosecutor who has switched sides. Sullivan is presiding over the case in which former National Security Adviser Michael Flynn pleaded guilty twice to serious federal crimes and is ready for sentencing. The fly in the ointment is a recent request by Attorney General William Barr that basically says: Never mind. Ignore those guilty pleas; Flynn never should’ve been interviewed about his conversations with Russian Ambassador Sergey Kislyak in the first place, so his admitted lies to the FBI don’t matter. The whole “Russia thing” was a hoax, according to Barr, that we’re now helping President Trump erase from history. Anyone studying the facts would have no doubt this was his message. The emerging consensus, reflected in these pages and in recent columns, is that Barr’s motion to dismiss the Flynn prosecution, however transparently abusive, leaves Sullivan in a pickle. As Jeffrey Toobin put it, “there doesn’t appear to be any way for a judge to force prosecutors to bring a case that they want to drop.” The judge’s options are said to include: examining why the prosecutor in charge of the case for the past several years suddenly withdrew; inquiring whether the Department of Justice’s reasons for treating the entire prosecution as unlawful and the guilty pleas as void were legally sound; granting the request to drop all charges but doing so “without prejudice” so they might be refiled by a future Justice Department; and proceeding to sentence Flynn in a rare and courageous exercise of discretion under the Federal Rules of Criminal Procedure.

A for-profit college received millions of dollars from the federal government to help low-income students whose lives have been upended by the coronavirus outbreak, but that same school, Florida Career College (FCC), is also accused of defrauding students. A federal class-action lawsuit filed on behalf of students in April calls FCC "a sham" and alleges that, long before the pandemic, the college was targeting economically vulnerable people of color. The plaintiffs say the vocational school enticed them with false promises of career training and job placement — but spent little on instruction while charging exorbitant prices and pushing students into loans they cannot repay. The lawsuit comes as thousands of colleges across the country are receiving federal emergency relief in response to the coronavirus pandemic. Through the CARES Act, FCC has been allotted $17 million. The law requires that at least half of that money goes directly to students, but makes few stipulations for the rest of it...The complaint alleges that Florida Career College, along with its parent company, specifically targets economically vulnerable people of color. "They are recruiting at majority Black high schools," says Toby Merrill, director of the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School, one of the organizations representing the plaintiffs. "They are putting up billboards in towns where the population is mostly Black. And they're doing a lot of advertising on social media where you can choose to target your ad essentially by race."

Most Americans would like to abolish the electoral college, the idiosyncratic institution that picks presidents six weeks after election day. Twice this century, candidates who received more votes in the nationwide tally watched their rivals move into the White House the next January. But in 2016, when Hillary Clinton, the popular-vote winner, was vanquished by Donald Trump, another electoral-college flashpoint came to light. The controversy over whether America’s 538 electors are free to deviate from their pledges comes to the quarantined Supreme Court live by telephone on May 13th. So-called “faithless” electors are rare, but nothing new...Activists seeking to subvert Mr Trump’s victory in 2016 spurred seven electors to break their pledges—short of the 37 needed, but more than in any previous presidential election. Some defectors ran into legal trouble. Peter Chiafalo from Washington was fined $1,000 when he selected Colin Powell rather than Mrs Clinton in an attempt to throw the election to Congress...This tension between principle and practicality makes Chiafalo v Washington compelling. Laurence Tribe of Harvard Law School, wonders if conservative justices—who claim to hew to the constitution’s original meaning—will uphold the founders’ understanding of the electoral college, even if it means empowering electors “in whose judgment the voters this November 3rd will not in fact be placing any trust.”

Rocio Lopez paused for a second before heading into Dallas ISD’s Young Women’s STEAM Academy in Balch Springs. A handful of parents had lined up on April 24, crammed in a tight vestibule outside the school’s main office, waiting to pick up a mobile hotspot — a device that can connect computers and tablets to the internet through a cellular network...Schools in Dallas and the rest of the country are closed for the year. Learning, such as it is, now happens online. But logging online isn’t a given for many families in Dallas, where approximately 1 of every 3 people lack fixed access to the internet, Lopez included...These differences between digital haves and have-nots worry experts and educators, who see the COVID-19 crisis as a potential accelerant to existing learning and opportunity gaps. In truth, said Susan Crawford, a Harvard University law professor, author and WIRED columnist who focuses on tech and telecom policy, the inequities in broadband access were already causing problems. “Three-quarters of American teachers assume that their students have access to the internet, and hand out homework accordingly,” said Crawford, who served as former President Barack Obama’s special assistant for science, technology and innovation policy during his first year in office. “Families were already scrambling to cope with this gap in internet access, and the pandemic has shone a bright light on the terrible state of internet access in America. We have all these poor kids in America, all these kids who deserve an opportunity, not being able to exist above a subsistence level. And from the beginning of the Republic, access to education has been a central tenet to the American experiment. And here we are denying that access to potentially half of American schoolchildren.”

Scarlet Fu and Romaine Bostick bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street. Today's show tackles the impact of the coronavirus on real estate, movie theaters and the markets Guests Today: Frances Donald of Manulife Asset Management, Mark Tushnet of Harvard Law School, Benno Dorer of Clorox, Diane Ramirez of Halstead Real Estate, Tim League of Alamo Drafthouse Cinema.

An article by Noah Feldman: It’s astonishing that Attorney General William Barr’s Department of Justice has “withdrawn” criminal charges against Michael Flynn, the former national security advisor, after Flynn had already pled guilty to two counts of lying to federal investigators. But after you get past the initial shock of Barr once again making partisan criminal prosecution decisions while insisting that he’s doing the opposite, a larger question remains: Shouldn’t there be some kind of check on the executive branch’s capacity to make a guilty plea go away? The answer is yes, for extreme cases like this one. And on paper, there is. It’s not only the Department of Justice’s decision to dismiss the charges against Flynn. The federal judge in charge of the case must agree, too. Ordinarily, that’s a pretty easy decision for a judge. But where a defendant has already admitted to the crime; the executive branch is dismissing charges against a former administration official; and the president encouraged the former FBI director to make the same case go away, that may be the one circumstance where the judge should take a close look at the question. And maybe, just maybe, it would be appropriate for the court to refuse the government’s dismissal.

Most Americans would like to abolish the electoral college, the idiosyncratic institution that picks presidents six weeks after election day. Twice this century, candidates who received more votes in the nationwide tally watched their rivals move into the White House the next January. But in 2016, when Hillary Clinton, the popular-vote winner, was vanquished by Donald Trump, another electoral-college flashpoint came to light. The controversy over whether America’s 538 electors are free to deviate from their pledges comes to the quarantined Supreme Court live by telephone on May 13th. So-called “faithless” electors are rare, but nothing new...The plaintiffs have ample support from the founding era. Alex Keyssar of Harvard’s Kennedy School, the author of a forthcoming book on the electoral college, says there is no “serious doubt” that the framers “envisioned electors as free agents, actors who would deliberate and could decide whom to vote for.” Lawrence Lessig, a Harvard law professor arguing the electors’ case, notes that Samuel Johnson defined electors as people who have “a vote in the choice of any officer”—quite distinct from “agents” or “delegates” who merely “act on behalf of others”. In the words of Alexander Hamilton in the Federalist Papers No. 68, electors would be chosen for their “discernment” and would be “most capable of analysing the qualities” of a potential president.

EPA is trying to use a 19th-century statute giving department heads the right to manage personnel and internal record keeping to contain the science it uses when drafting regulations, including those on greenhouse gases. The March supplementary proposal for a rule EPA bills as improving transparency of the science and modeling that underpin important agency work points to an obscure "housekeeping statute" enacted in 1874. It has roots in laws enacted under President Washington when early federal agencies were founded. The proposed rule in question, known as "Strengthening Transparency in Regulatory Science," would banish long-used scientific studies from future rulemaking processes if they rely on data that isn't made public...But environmental attorneys say the proposed rule, by barring EPA from using the latest science in setting rules or maintaining models, would interfere with the agency's statutory responsibilities under the Clean Air Act, the Clean Water Act and other substantive statutes. "It certainly hasn't been used independently as a basis for promulgating a rule that will effectively change the way the agency fulfills its statutory mandate," said Laura Bloomer, a legal fellow at Harvard Law School's Environmental and Energy Law Program. "I do think that this is just a different type of rule."

The IRS' collection due process program, which grants taxpayers a hearing before having to pay their debts, was already in need of reforms before the COVID-19 outbreak, and the pandemic is likely to delay program improvements and increase its backlog. Use of the program remains low, and taxpayers too often don't know about their rights to request a CDP hearing, according to directors of low-income taxpayer clinics. Some directors have worked with Internal Revenue Service officials on improving the process, but that appears to be on hold for now...An initiative known as the CDP Summit — a collaboration among private tax practitioners, law professors, directors of low-income taxpayer clinics and the IRS aimed at putting in place needed reforms to the CDP program — was launched as a result of a panel discussion at the American Bar Association Section of Taxation's 2019 May meeting on issues with the program...T. Keith Fogg, the director of the federal tax clinic at Harvard Law School's Legal Services Center, who is also involved with the summit, said he doesn't know when it will resume. For the time being, the pandemic has reduced some of the pressures on the CDP program, since the IRS has temporarily paused lien and levy enforcements through July 15 and will be slow to restart that work, Fogg said. The summit's work so far has led to significant improvements in CDP notices, Fogg said, noting the newest version of the notice provides more information on the opportunity for a CDP hearing. However, more needs to be done to ensure that taxpayers understand they have to act to preserve their rights to a hearing under the CDP program, he said.

Kirkland + Ellis, Sidley Austin, Baker + Hostetler and other law firms announced this week that they are dramatically shortening their traditional summer associate programs—which are already being held virtually given the ongoing COVID-19 pandemic. Kirkland’s program will last two weeks with a June 15 start date, while Sidley’s summer associate programs will be at least four weeks long, the firm said Thursday. Sidley’s program in New York will start July 6 and end July 31. Both firms are paying their associates what they were set to receive when the programs were running at full length. Kirkland is extending job offers to associates who graduate from law school in 2021, while associates who graduate in 2022 will be able to participate in next year’s program...With in-person programs already a thing of the past for most firms in 2020, is it even worth the trouble to invite summer associates for such short periods? Scott Westfahl, a professor of practice and the director of Harvard Law School’s executive education program, said the answer is yes. A two-week virtual program is better than no program at all, he said. Westfahl said a short visit can be useful, noting that law firms in the past have brought past summer associates back for two-week programs designed to reconnect with partners. “If they are thoughtful about it, [the program] can provide a meaningful experience to build their networks among each other and among the lawyers at the firm,” Westfahl said of the firms’ efforts.

For this week's episode of our Arbiters of Truth series on disinformation, Evelyn Douek and Alina Polyakova talked to Aric Toler of Bellingcat, a collective that has quickly become the gold-standard for open source and social media investigations. Aric recently published a blog post in response to a New York Times article on Russian influence campaigns—one retweeted by former President Barak Obama no less—that Aric called “How Not to Report on Disinformation.” Evelyn and Alina asked him about the article and what exactly Aric thought was wrong with it as a case study in the challenges for reporters writing about disinformation operations. When are reporters helping to uncover threats to democracy, and when are they giving oxygen to fringe actors?

The U.S. Supreme Court threw out a pair of criminal convictions against associates of former Gov. Chris Christie, R-N.J., ruling that they had not violated federal law even though evidence showed "wrongdoing." "The evidence the jury heard no doubt shows wrongdoing — deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct," Justice Elena Kagan, a liberal jurist appointed by former President Barack Obama, wrote on behalf of the court's unanimous decision in favor of Bridget Anne Kelly and Bill Baroni. Kelly was Christie's deputy chief of staff, while Baroni was a former deputy executive director of the Port Authority of New York and New Jersey at the time when they were accused of helping Christie engineer traffic problems on the world's busiest bridge. The pair allegedly sought retribution against Fort Lee Mayor Mark Sokolich, a Democrat who did not endorse Christie's re-election campaign. They were convicted of wire fraud and misusing Port Authority resources in 2016 before the Supreme Court ruled Thursday that their actions did not meet the federal definition of fraud...Harvard Law School professor Laurence Tribe agreed with the opinion, telling Salon by email that "I found Justice Kagan's reasoning compelling as a matter of statutory interpretation. It left me persuaded that Congress had not criminalized the kind of corruption demonstrated in this case — but that it ought to do so."