Media Mentions

An article by Elizabeth Bartholet, Dr. Rachel Coleman, James Dwyer, Milton Gaither, and Frank E. Vandervort: As COVID-19 continues to destroy lives and the economy, forcing millions of American parents to begin teaching their children at home, Secretary of State Mike Pompeo and Sen. Ted Cruz (R-Texas) took to Twitter to call for shutting down discussion about research on the safety and quality of homeschooling, as well as proposed regulation of that practice. In a series of tweets, both recently took time off from leading the nation’s response to the global pandemic to denounce “barbaric” and “unconstitutional” proposals to safeguard children from abuse and ensure they are educated, calling advocates of such common-sense regulation “radical leftist scholars.” In recent years, we and many others focused on the welfare of children have raised an alarm about the absence of meaningful oversight of homeschooling and the risk this presents for up to 3 million youth across America. In response, a reactionary subset of the homeschooling movement – now including the nation’s top diplomat and the Texas senator and former presidential candidate – has mobilized aggressively to suppress public discussion and prevent any safeguards designed to protect children against maltreatment and ensure they receive a minimum level of education. The recent attacks on academic critique and suggested regulatory reform underscore the need for a civil, data-driven discussion about the advantages and pitfalls of homeschooling and how best to ensure the safe education of all children. While we have varying perspectives on homeschooling, we all recognize that there is enormous variety in the homeschooling population and that many homeschooling parents provide their children with an education far superior to that delivered in their local public schools.

In early April, after the Trump administration brushed aside New York Gov. Andrew Cuomo’s appeals for ventilators, Kate Brown, the governor of Oregon, shipped 140 of the breathing devices to help New York blunt COVID-19. China chipped in with another 1,000. Weeks later, Cuomo sent 400 ventilators to Massachusetts after its governor, Charlie Baker, came close to a public meltdown over federal interference with his efforts to buy medical supplies...In a complete reversal of what has long been the normal crisis or wartime dynamic, action and authority have devolved from the White House to the governor’s mansions during the COVID-19 pandemic. It is the states that have emerged as the counterweight to Trumpian dysfunction, a development that has led Trump to rage against the very people confronting the daily doses of death and despair—and the fallout from his incompetence and indifference...In the absence of sane federal policy, moreover, these and other governors have begun working with their neighbors...The hardest-hit Northeastern states, New York, New Jersey, Pennsylvania, Connecticut, Massachusetts, Rhode Island, and Delaware, followed suit, as did the Midwestern states of Illinois, Indiana, Kentucky, Ohio, Michigan, Minnesota, and Wisconsin. States have established compacts before, on issues ranging from criminal justice to the environment and transportation. But there is likely no historical precedent for states “banding together in the face of inaction by the federal government,” according to constitutional law professor Annette Gordon-Reed of Harvard Law. “This situation is not like the drivers of the typical interstate compacts,” Gordon-Reed says. “This is different, as an acute health crisis in which time is of the essence and could have been ameliorated with a coordinated effort.”

State and federal governments can't force people to receive a new coronavirus vaccine against their will, experts said, but lawmakers may be able to create a mandate that imposes consequences for not being vaccinated. Vaccine research for a new coronavirus is moving forward at an unprecedented rate and experts champion high rates of immunity in a population as a solution to stopping a virus from spreading. But a recent Reuters poll found about a quarter of the American public isn't interested in a vaccine for SARS-CoV-2, and the federal government may have a tough time creating a requirement that people be inoculated. It's possible Congress could have the power to mandate a vaccine under the commerce clause since the virus travels across state borders, constitutional law experts told Newsweek...The federal government could also leave the decision up to states. In the 1905 case, Jacobson v. Massachusetts, a citizen argued forced smallpox inoculations infringed on his personal liberty. The Supreme Court upheld the Cambridge Board of Health's authority to require the vaccination under the 10th Amendment that grants state police powers. As it's still a "perfectly good law," Laurence Tribe, a Carl M. Loeb University Professor at Harvard Law School told Newsweek. The answer to whether states could mandate vaccinations, he said, was a "clear yes."

Upcycled food is now an officially defined term, which advocates say will encourage broader consumer and industry support for products that help reduce food waste. Upcycling—transforming ingredients that would have been wasted into edible food products—has been gaining ground in alternative food movements for several years but had never been officially defined. The Upcycled Food Association announced on May 19 that they define upcycled foods as ones that “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.” The definition was drafted by a working group convened by the Upcycled Food Association, which included representatives from Harvard University, Drexel University, Natural Resources Defense Council, World Wildlife Fund, and ReFED, a nonprofit that analyzes solutions to food waste...Standardizing the term is also a first step toward legislation that supports upcycling, according to Emily Broad Leib, a Harvard University law professor and the director of Harvard’s Food Law and Policy Clinic. “Further research can be done to identify and leverage policy incentives to support upcycled foods as a model to reduce food waste and support a more sustainable food system,” she says in a statement.

California cities and counties cleared an important hurdle in their legal fight to get major oil companies including BP Plc, Exxon Mobil Corp., and Chevron Corp. to pay tens of billions of dollars to deal with the effects of climate change. The U.S. Court of Appeals for the Ninth Circuit said Tuesday that San Francisco, Oakland, San Mateo County, and other jurisdictions can pursue their lawsuits in state court rather than in a federal venue thought to be more favorable to the energy industry. The decision doesn’t guarantee the local governments will ultimately prevail, but it paves the way for a full airing of their arguments in state court. The cities and counties “live another day to put forth their claims and argue their case,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. The suits seek to reimburse taxpayers for costs associated with adapting to impacts such as rising sea levels—from building multibillion-dollar sea walls and repairing damage from powerful storms to—perhaps soon—moving whole communities inland...The ruling could spur more such claims and influence whether cases in other states are decided under local nuisance statutes, rather than under federal laws cited by courts that threw out similar complaints. “Venue is really important to the cities” because it allows them to “get to the point of arguing the merits of their case,” Vizcarra said before the ruling. But there’s still “another round of consideration” at the federal district court before the case fully moves forward in state court, she later said. And cities and counties face an uphill climb on the climate change-linked claims at the heart of the dispute, something state courts haven’t yet grappled with, she said.

A podcast by Noah Feldman: Dr. Emily Rubin, a critical care pulmonologist at Massachusetts General Hospital, discusses what she has learned from treating coronavirus patients since March.

Deftly adapting to a shift in both venue and format, and applying the skills that they had cultivated in their J-Term negotiation workshop, Harvard Law 1L students Adira E. Levine '22, Noopur Sen '22, and Adam J. Toobin '22 were able to negotiate their way to victory in The Negotiation Challenge—an international contest drawing competitors from around the world. The trio was awarded both the overall first place award as well as the Best Negotiation Style award. While they were excited to win, all agreed that sharing that news with the law school community who had supported them along the way was one of the best parts of the experience. “Communicating the news to the people who taught us in the negotiation workshop, the Program on Negotiation, Dean Sells, and all of the different people who had supported us so much … seemed to bring such joy,” said Sen. “I feel very gratified and humbled to be able to provide some sunshine in this otherwise crazy time.”

An article by Jonathan Zittrain: People across America and the world remain under strong advisories or outright orders to shelter in place, and economies largely shut down, as part of an ongoing effort to flatten the curve of the most virulent pandemic since 1918. The economic effects have been predictably staggering, with no clear end in sight. Until a vaccine or other transformative medical intervention is developed, the broad consensus of experts is that the only way out of mass sheltering in place, if hospital occupancy curves are to remain flattened, entails waiting for most of the current cases to resolve, and then cautiously and incrementally reopening. That would mean a sequence of allowing people out; promptly testing anyone showing symptoms — and even some who are not; identifying recent proximate contacts of those who test positive; and then getting in touch with those contacts and, if circumstances dictate, asking or demanding that they individually shelter until the disease either manifests or not. The idea is to promptly prune branches of further disease transmission in order to keep its reproductive factor non-exponential.

Actress Lori Loughlin and her husband Mossimo Giannulli have pleaded guilty to conspiracy charges in the college admissions case known as Varsity Blues. Via video conference on Friday, the California couple admitted that they funneled half a million dollars through a bogus charity to get their two daughters into the University of Southern California as fake athletic recruits. Loughlin agreed to serve two months in federal prison; Giannulli five. The couple will also pay more than $400,000 in fines. Sentencing was set for July 30. During the video conference, Loughlin and Giannulli barely spoke, sitting shoulder to shoulder with their attorneys in what appeared to be their home. Each said they are high school graduates but did not graduate from college. Retired federal judge Nancy Gertner argues this plea agreement represents overreach by federal prosecutors. “If you look at the early papers in the case, everything that the government knows now they knew in the beginning,” Gertner said. “Is this genuine additional misconduct or is it [they] just fought the case?” Gertner, a long-time critic of federal sentencing guidelines, thinks the government is using Loughlin and Giannulli as examples for the other parents charged in the case, and they’re being punished for simply defending themselves. “The sentencing guidelines make more culpable the parents who paid more,” Gertner said. “That may mean that they were just stupid — not very good bargainers — not necessarily that they were more culpable.”

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.