Media Mentions

We take a moment in the midst of a pandemic, which, because of the negligence of this administration has killed more than 75,000 Americans and sent the United States into a record-setting recession, to note another assault on the rule of law by the most corrupt president and attorney general in history... “What Barr has done on Trump’s behalf with respect to Flynn, who entered a fully justified guilty plea that the district court duly approved, is blatantly and purely partisan,” constitutional scholar Laurence Tribe tells me. “I know of no similarly corrupt action in the Justice Department’s entire history. This latest outrage, which closes the circle that began with Trump’s attempt to get [then-FBI Director] James Comey to go easy on Flynn and with Trump’s firing of Comey for his failure to do so, just goes to show that a president with a sufficiently unprincipled and compliant Attorney General needn’t even bother to abuse his pardon power to bail out his loyal henchmen.” Tribe further observes, “By sparing Trump the need to invoke his pardon power and at least having to be held politically accountable, Barr gave the president cover. Hopefully the voters will see through the ruse come November.”

President Donald Trump, Treasury Secretary Steven Mnuchin — and now the IRS — are urging people who received coronavirus relief payments for a deceased taxpayer to return the money to the government. But legal experts say there is no law requiring people do that. Some of the more than 130 million economic impact payments that went out to taxpayers as part of the $2.2 trillion economic relief package were sent to dead people. That happened mainly because of a lag in reporting data on who is deceased. It’s happened with past federal stimulus payments, and tax experts say is almost inevitable. However, this is the first time the IRS has asked for the money back from the deceased taxpayers' survivors...Olson and others, including Keith Fogg, a clinical professor of law at Harvard, don't expect the government will go to extreme measures to claw back the money. The government would be hard pressed to prove survivors weren't entitled to the payments in the first place as the law is written... “If you feel bad, send it back. If you don’t feel bad about it I wouldn’t say you have to send it back," Fogg said. “You are not breaking the law as I see it."

An article by Noah Feldman: In the midst of the constant up-and-down of coronavirus news, both from science and the markets, it’s easy to lose sight of the scariest scenario of them all: the one where there’s no magic bullet. In this entirely plausible situation, there would be no effective Covid-19 vaccine or transformative therapy; the combination of testing and contact tracing wouldn’t successfully suppress the outbreak; and herd immunity would come, if at all, only after millions of deaths around the world. Even raising this possibility is a big downer. But the fact that an outcome is terrible doesn’t make it impossible. Since the end of February, I’ve conducted some 20 interviews with epidemiologists and virologists like Marc Lipsitch, Angela Rasmussen, and Carl Bergstrom; economists like Paul Romer, Stefanie Stantcheva and Larry Summers; and leaders at top hospitals and experts on government agencies whose names you may not know, but whose life’s work is preparing for moments like this one. Despite getting expert answers to dozens of my questions, the one question I haven’t been able to get an answer for is this: Who, exactly, is planning for the nightmare scenario in which we never get a vaccine or a breakthrough treatment?

A podcast by Noah Feldman: Nader Mousavizadeh, who formerly served in the Executive Office of UN Secretary-General Kofi Annan, explains why international organizations like the WHO and the UN have not been able to effectively coordinate a global response to the pandemic. Plus, is it a good thing or a bad thing that Bill Gates had stepped in to fill that void?

Labor Secretary Eugene Scalia’s spot aboard Air Force One for a trip to a Honeywell International Inc. plant in Arizona on Tuesday was the latest sign the low-profile Cabinet member with a familiar last name is primed for an increasingly public role in the Trump administration’s efforts to recover the economy from the coronavirus pandemic. Scalia’s Labor Department oversees many of the paid leave, workplace safety, and training programs the administration is likely to turn to as President Donald Trump shifts focus from combating the health-care crisis to restarting the nation’s economy...Business groups and some Republican officials expect Scalia to get a more public spot in leading the charge to get Americans back to work. That includes pushing for Republicans’ top legislative and policy priority: legal liability protections for companies operating during the pandemic...The labor chief is already under fire for his management of the DOL’s Occupational Safety and Health Administration. Worker advocates have accused OSHA of being too lax in its response to the pandemic by ignoring calls to issue emergency safety standards that would be mandatory for businesses. AFL-CIO President Richard Trumka seized on that issue in a letter to Scalia last week...Scalia argued OSHA’s approach of periodically updating guidance for employers is a better way of responding to the contagion because scientific knowledge of Covid-19 continues to evolve. “At almost every decision point he has opted against the position that would be the most protective and compassionate,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School and a senior DOL official under President Barack Obama.

Almost exactly a year ago, back in the days when near strangers could strike up random conversations in Italian bars, I found myself learning about a new initiative on which Facebook was embarking — a kind of independent Supreme Court to help the company rule on the deluge of moral, ethical, editorial, and legal challenges it was facing...I asked lots of questions about this Facebook Oversight Board, an idea Mark Zuckerberg had announced the previous November. It seemed a promising move by a company which was exasperating and alienating so many people by its apparent unwillingness, or inability, to get grips with the torrent of lousy, malign content it was enabling and amplifying. As well as all the good stuff...The idea of the alternative — some form of independent, external oversight — apparently grew out of multiple conversations and a thousand op-eds. One such discussion, in January 2018, involved a Harvard Law Professor, Noah Feldman, who had struck up a dialogue with Mark Zuckerberg. Both men agreed that, whoever should be making some hugely consequential decisions about the information which half the connected people on the planet were plugged into, it probably shouldn’t be Mark Zuckerberg. In the eyes of some, the fruits of those deliberations — 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. Some, inevitably, will see it as a fig leaf.

The COVID-19 pandemic has caused several kinks in the food supply chain, making the recovery of excess food more difficult at a time when the population is increasing and already vulnerable to shortages. During Waste360’s recent webinar, “The Impact of COVID-19 on the Food Supply & Feeding the Hungry,” food waste and food rescue experts provided their thoughts on the potential short-term and long term effects the pandemic may have on the food supply chain, what it means for food recovery and how food banks and agencies are pivoting to make sure excess food gets to the people who need it the most. Discussing the virus’ effect were Dana Gunders, executive director of ReFED; Justin Block, managing director of retail information services at Feeding America; and Emily Broad Leib, clinical professor of law, director of the Food Law and Policy Clinic and deputy director of the Center for Health Law and Policy Innovation at Harvard Law School...In addition to CFAP, the federal government has increased funding to The Emergency Food Assistance Program (TEFAP) through the Families First bill. States and municipalities can apply to the Federal Emergency Management Agency (FEMA) for money to feed people, and there has been some flexibility in food safety when it comes to requiring nutritional labels, according to Leib of the Harvard Law School FLPC. The clinic provides legal and policy advice to nonprofits, government agencies, entrepreneurs, entrepreneurs and other organizations on a range of food policy questions, Leib said. Later this month the FLPC will be launching the new Global Food Donation Policy Atlas, which she said is “really relevant to this moment.”

An article by Adam Houston and Beatrice Lindstrom: In recent weeks, the United Nations Department of Peace Operations announced a series of protocol changes to reduce the risk that peacekeepers will introduce COVID-19 into vulnerable countries. As the introduction of cholera to Haiti in 2010 by UN peacekeepers demonstrates, such preventative measures are critical. Yet there is cause for concern that the lessons from cholera in Haiti have not translated into adequate action to protect peacekeeping host communities from the preventable transmission of disease. Peacekeeping presents a unique risk of introducing diseases into the world’s most vulnerable places. Since the World Health Organization (WHO) first declared the novel coronavirus a Public Health Emergency of International Concern in January, peacekeepers from over 120 countries have been involved in UN missions, traveling in and out of extremely fragile states. As Under Secretary-General for Peace Operations Jean-Pierre Lacroix observed, “the places where [UN] peacekeepers operate—vulnerable civilians there are the most at risk… [they are] fragile political environments, where individuals are living in conflict-affected or post-conflict societies with little to no infrastructure or social and sanitary safety nets.” This risk posed by peacekeeping is not merely hypothetical.

Amid all the well-justified worry during this troubled election season about vote suppression, the most direct threat to having every vote count has been hiding in plain sight: “faithless electors” who might cast their Electoral College votes according to their own preferences rather than for the choice of their states’ voters. Eight such votes were cast four years ago, including by electors in Colorado and Washington, despite the fact that those states and most others required would-be electors to pledge to vote according to the popular will...The argument from practice — how the Constitution has actually been understood and deployed, a process some scholars refer to as constitutional construction — holds obvious appeal for the court’s more liberal members. It gets a vigorous pushback from Lawrence Lessig, a Harvard Law School professor who is representing the rogue electors from the two states. Conceding that “our current political culture views the power of presidential electors differently from how the Framers did,” Professor Lessig warns the court that “the expectations of the public have not amended the Constitution.” In the aftermath of the 2016 election, Professor Lessig, who actually embarked that year on a brief presidential campaign of his own, was the most prominent of several academics who declared that Republican electors had a duty to deny Donald Trump the presidency. He publicly offered to provide “strictly confidential legal support to any elector who wishes to vote their conscience.” He will argue on behalf of the rogue Washington electors. His brief adds: “For the states to prevail in these cases, this court must conclude that the Constitution can be amended by custom.”

Joshua Wong’s black iPhone sat in a room on the 22nd floor of the Hong Kong Police Headquarters in the heart of the city’s business district, where over a total of 21 hours between late September and early November, its data were examined by officers, and hundreds of chat messages exported. The 23-year-old pro-democracy activist only learned months later that his locked phone had been cracked into when authorities presented him with a search warrant in February. His phone had been confiscated following his arrest the previous summer on charges of inciting others to take part in an unlawful assembly at the height of Hong Kong’s mass protests against a controversial extradition law...Some legal experts see the vague Hong Kong police warrants as legally unsound at best, and an abuse of justice and the law at worst. “It’s obvious that in jurisdictions that I know—the US, Switzerland, Germany, or under the Europe Convention on Human Rights—that this wouldn’t hold water,” said Nathan Kaiser, a lawyer and a fellow at the Berkman Klein Center for Internet and Society at Harvard University. Kaiser explained that there are typically two parties involved in a warrant—the searching party, and the party being searched. “But here, the search warrant is for the police headquarters. That doesn’t even make sense. They’re not a party,” he said. He compared the scenario to a rigged game of ping-pong: “The same party is playing both sides of the ping-pong table, and the party whose phone is at stake is not even at the ping-pong table.”

Technology companies are offering a new tool to countries and states trying to reopen their economies amid the coronavirus pandemic: digital contact tracing applications. Touted as a way to track cases and isolate carriers quickly through the use of smartphones people already have in their pockets, the technological fix has gained significant attention from governments and private companies alike. But it's not clear how effective the alternative to traditional one-on-one interview-based contact tracing would be. And it also raises other issues dealing with surveillance. Apple and Google have been two of the leaders developing digital contact tracing and jointly released API this week for public health officials to build applications with. The unprecedented collaboration from the Silicon Valley giants allows applications to use bluetooth emissions to create a log of the people the phone’s user has come into proximity with. This would give officials a list of people that an individual infected by COVID-19, the disease caused by the coronavirus, may have passed it to. There are a few potential roadblocks with the technology...Bruce Schneier, a fellow at the Berkman Klein Center for Internet and Society at Harvard University, told The Hill that issues with apps could negatively color users’ perceptions of contact tracing more broadly. “My fear is that an app people lose trust in could cause more harm than good,” he said. “Some things in life an app can’t solve.”

After three years in office, the Trump administration has dismantled most of the major climate and environmental policies the president promised to undo. Calling the rules unnecessary and burdensome to the fossil fuel industry and other businesses, his administration has weakened Obama-era limits on planet-warming carbon dioxide emissions from power plants and from cars and trucks, and rolled back many more rules governing clean air, water and toxic chemicals. Several major reversals have been finalized in recent weeks as the country has struggled to contain the spread of the new coronavirus...With elections looming, the administration has sought to wrap up some of its biggest regulatory priorities quickly, said Hana V. Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. Further delays could leave the new rules vulnerable to reversal under the Congressional Review Act if Democrats are able to retake Congress and the White House in November, she said... “Over the past three years, we have fulfilled President Trump’s promises to provide certainty for states, tribes, and local governments,” a spokeswoman for the E.P.A. said in a statement to The Times, adding that the agency was “delivering on President Trump’s commitment to return the agency to its core mission: Providing cleaner air, water and land to the American people.” But environmental and legal groups said the rollbacks have not served that mission. Ms. Vizcarra, who has tracked environmental rollbacks for Harvard since 2018, said the agency under Mr. Trump has often limited its own power to regulate environmental harm, especially when it comes to climate change.

Today, Julie Owono, a digital rights advocate and Executive Director of Internet Sans Frontières from Cameroon, Maina Kiai, a human rights activist and Director of Human Rights Watch’s Global Alliances and Partnerships program from Kenya, and Afia Asantewaa Asare-Kyei, a human rights lawyer and Program Manager at the Open Society Initiative for West Africa from Senegal, Ghana and South Africa were appointed as Board Members to the newly created Oversight Board. The Oversight Board will review certain content decisions by Facebook and Instagram and make binding decisions based on respect for freedom of expression and human rights. The Oversight Board will tackle increasingly complex and contentious debates about what types of content should and should not be permitted on Facebook and Instagram and who should decide. The Board will prioritize cases that potentially impact many users, are of critical importance to public discourse, or raise questions about Facebook’s policies. Decisions made by the Board must be implemented by Facebook, as long as they do not violate the law. Oversight Board Members are independent from the company, funded by an independent trust and cannot be removed by Facebook based on their decisions. “Preserving the free flow of information is a major issue in our contemporary societies,” said Julie Owono. “I come from Cameroon, I grew up in Russia, studied in France, I am currently in the USA, this journey has reinforced my conviction that without freedom, without the right to express oneself, to receive or impart information, there can’t be true and profound progress. It is an honor for me to serve this cause, within the Oversight Board.”

U.S courts won’t block governors’ stay-at-home-orders. At least not yet. With some lockdowns about to begin their third full month, a growing number of business owners, church-goers, beach enthusiasts and politicians have filed lawsuits claiming the restrictions violate their rights. But so far, judges are deferring to the government, saying it’s for elected officials to decide what’s needed to fight the spread of Covid-19...The case that’s most influential for judges is Jacobson v. Massachusetts, a 1905 U.S. Supreme Court decision involving mandatory smallpox vaccinations in Massachusetts... “Unless there’s a question of discriminating against a constitutional right, as in the religion cases, Jacobson should be the beginning and almost the end,” said Mark Tushnet, a professor at Harvard Law School. “A higher standard comes into play only if the activity is somehow bound up with a constitutional right -- yes for religious services, no for beauty parlors, etc.” The Jacobson precedent isn’t just being used to rebuff claims of lost personal freedoms. The federal court of appeals in New Orleans last month cited it in a decision to reinstate Texas’s temporary ban on abortions during the pandemic.

An article by Jeannie Suk Gersen: A truth that burst into public view with #MeToo in 2017 was that sexual exploitation in its many forms has been ubiquitous and experienced largely by women. So anyone following the story of #MeToo could hardly find it shocking that, after a promising primary season with a record number of excellent female candidates, the first Presidential election since the movement’s rise has come down to a race between two men who have both been accused of sexual assault. Tara Reade has accused Joe Biden of sexually assaulting her twenty-seven years ago, and several women have accused him of unwanted touching. More than a dozen women have accused Donald Trump of sexual assault and misconduct, and he has bragged on tape about grabbing women’s genitals. It is unlikely that the Democratic Party will abandon their only candidate who remains in the race, and who leads Trump in polls. So many liberals, who are justifiably desperate to turn the page on the horrors of Trump’s Presidency, are grasping at the world of difference between Trump and Biden—and viewing Reade’s sexual-assault allegation more skeptically than #MeToo has allowed in recent times. This moment may prove to be a pivotal chapter of #MeToo, which marks its more mature reckoning with its deeper goals. And, in fact, there is a no more fitting person to embody that development than Biden, whose long career has repeatedly positioned him at the levers of power in the government’s responses to sexual violence.

An article by Ben Iverson and Mark Roe: Neiman Marcus and J.C. Penney, two of America’s retailing giants, recently failed to pay interest on their debt. We should expect one or both firms to file for bankruptcy soon, heralding a surge of US business failures caused by the COVID-19 pandemic. And with most American households currently lacking the cash to pay expenses for three months, many families and individuals will declare bankruptcy, too. Before long, the United States could face a trifecta of millions of insolvent consumers, thousands of small-business failures, and many bankruptcies of large public firms, with whole industries going broke at the same time. Bankruptcy filings in the US have historically peaked several months after a surge in unemployment. And US unemployment is now rising at an unprecedented rate, with more than 30 million claims filed in the last six weeks. If historical patterns hold in the coming months, the bankruptcy surge could be the biggest that the US court system has ever experienced. Bankruptcy works well enough and quickly enough in normal times, particularly for restructuring large public firms. But it cannot work well, and the economy will suffer, if the system is overloaded and businesses become stuck in legal proceedings.

An article by Samantha Fry '20, Masha Simonova '20, Jacques Singer-Emery '20, and Benjamin Della Rocca: The coronavirus has spread to all 50 states, the District of Columbia and multiple territories, with case totals still increasing rapidly in the United States. Governors across each of the states and territories have been responsible for much of the response, enacting restrictions on nonessential businesses and enforcing stay-at-home orders. On Lawfare, several of us previously reviewed the U.S. state and territory laws authorizing quarantine and isolation. Here, we review the other emergency authorities that state and territory executive authorities possess to address the pandemic. We have prioritized states with the most cases and will continue updating by alphabetical order. One authority across the 50 states and most inhabited territories is the Emergency Management Assistance Compact (EMAC). It is an “all hazards - all disciplines mutual aid compact” ratified by Congress. All 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands have enacted legislation to become EMAC members, which permits them to assist in emergency response efforts in other states. EMAC members can send personnel, equipment and commodities to other states, and transfer services and conduct virtual missions.

An article by Noah Feldman: Attorney General William Barr has made good on his threat to take legal action against states that restrict religious services during the coronavirus pandemic. The Department of Justice has filed a brief in federal district court in Virginia in support of a church claiming the right to hold socially distanced worship. The lawsuit should not be allowed to be litigated to completion. The governor of Virginia should make a strategic decision to tweak the state’s rules to make it go away. Analyzed precisely, existing First Amendment doctrine should not enable the church to get an exemption from Virginia law. Yet, because the issues here are tricky, and it’s easy to feel sympathy with the worshippers, a judge could make new law at the invitation of the Justice Department and find in favor of the church. That on its own is a good reason for the state to change its rules. The facts of the case create some natural compassion for the church, Lighthouse Fellowship Church. It’s a congregation that ministers especially to people with substance abuse problems; for them, attending church is almost certainly a meaningful part of preserving their mental and physical wellbeing. And although the pastor knew that he was breaking state guidelines when he invited his flock into the church, he restricted the numbers drastically, imposed social distancing, and made sure the church was carefully disinfected before worship.

When Kelly Loeffler accepted an appointment to be a United States senator from Georgia, she left behind a high-paying job as a senior executive at the parent company of the New York Stock Exchange. But on her way to Washington, her old employer gave her a lucrative parting gift. Ms. Loeffler, who was appointed to the Senate in December and is now in a competitive race to hold her seat, appears to have received stock and other awards worth more than $9 million from the company, Intercontinental Exchange, according to a review of securities filings by The New York Times, Ms. Loeffler’s financial disclosure form and interviews with compensation and accounting experts. That was on top of her 2019 salary and bonus of about $3.5 million...The generous dispensations are not illegal or against any congressional rule, but they are certain to feed questions about how the Senate’s newest and wealthiest member has handled her finances, an issue that has emerged as a potential risk in her campaign...Corporate governance experts generally frown upon companies handing such parting gifts to senior executives because they do not serve a clear business purpose and, in cases where the executive is taking a government job, they risk creating the appearance that the company is trying to curry political favor. “From a corporate governance perspective, large payments to executives are appropriate only if they serve an adequate corporate purpose,” said Lucian A. Bebchuk, the director of the Program on Corporate Governance at Harvard Law School. He added that shareholders in Intercontinental Exchange “should not view this arrangement to have been on the up-and-up.”

An article by Heidi Gardner and Dave Harvey: General counsel are under greater pressure than ever to add value to their entity by integrating their legal and industry expertise—deeply and early—into their organization’s strategic business decision-making. GCs’ access to and potential influence on the board is at an all-time high.  Meanwhile, they are severely time constrained and facing an overload of information—mainly, what they consider to be generic spam from their outside lawyers. How can law firms cut through the noise to offer truly critical insights that help clients anticipate and address the highest-value problems? In-house counsel need advice from outside attorneys who generally have a broader view of the legal and business issues affecting particular industries—and they are rightfully demanding that the insights are tailored to their own, specific business needs. Now is a perfect time to bolster your firm’s sector leadership initiative so that client teams can provide customized expertise that help GCs navigate the business through this global health and economic crisis. Doing so will distinguish your firm, build client loyalty by helping turn the GC into a hero, and seed success for the recovery. That said, this is a hard time to generate buy-in for an initiative, especially if your firm hadn’t already committed pre-crisis to building a robust sector-focused client approach.

The coronavirus pandemic is lending the battle over Uber and Lyft's classification of its drivers fresh urgency. California is suing the companies for allegedly breaking a landmark state law that went into effect earlier this year that would reclassify many gig workers as employees, my colleague Faiz Siddiqui reports. Attorney General Xavier Becerra, who is among the California attorneys bringing the suit, said the ride-hail companies are preventing drivers from enjoying many worker protections and accessing safety net programs by continuing to classify them as independent contractors...And Uber and Lyft drivers do not have mandated sick leave because of their work classification. The  companies have taken steps to expand sick leave during the pandemic, but drivers have raised concerns that it's difficult to access.  “What it's done is laid bare more the consequences of allowing companies to opt out of the social safety net,” Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told me. “For a lot of workers, those consequences have been very apparent for a while. What's happening right now is the public is being forced to see this in a different way when there is such a groundswell of workers who are dealing with those consequences all at the same time.”