Media Mentions

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."

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.”