Media Mentions

Dwindling access to reported news threatens to undermine democracy, warns former Law School dean and 300th Anniversary University Professor Martha Minow.

An article by Jonathan Zittrain: On Tuesday, President Donald Trump began his day as he usually does—by tweeting. In this case, Trump fired off a threat of using “serious force” against hypothetical protesters setting up an “autonomous zone” in Washington, D.C. Twitter, in response, hid the tweet but did not delete it, requiring readers to click through a notice that says the tweet violated the platform’s policy “against abusive behavior, specifically, the presence of a threat of harm against an identifiable group.” Twitter’s placement of such a “public interest notice” on a tweet from the president of the United States was just the latest salvo in the company’s struggle to contend with Trump’s gleefully out-of-bounds behavior. But any response from Twitter is going to be the least bad option rather than a genuinely good one. This is because Trump himself has demolished the norms that would make a genuinely good response possible in the first place. The truth is that every plausible configuration of social media in 2020 is unpalatable. Although we don’t have consensus about what we want, no one would ask for what we currently have: a world in which two unelected entrepreneurs are in a position to monitor billions of expressions a day, serve as arbiters of truth, and decide what messages are amplified or demoted. This is the power that Twitter’s Jack Dorsey and Facebook’s Mark Zuckerberg have, and they may well experience their own discomfort with it. Nor, though, would many of us wish for such powerful people to stand idly by when, at no risk to themselves, they could intervene to prevent misery and violence in the physical world, by, say, helping to counter dangerous misinformation or preventing the incitement of violence.

A podcast by Noah Feldman: Dr. Saad Omer, the director of the Yale Institute for Global Health, brings us up to speed on the latest coronavirus research. Plus, Noah analyzes the Supreme Court DACA ruling.

An article by Jonathan Zittrain: Last month I wrote a short essay covering some of the issues around standing up contact tracing across the U.S., as part of a test/trace/quarantine regime that would accompany the ending of a general lockdown to prevent the spread of the Coronavirus pandemic...In the intervening month, some things have remained the same. As before, tech companies and startups continue to develop exposure notification apps and frameworks. And there remains no Federally-coordinated effort to test, trace, and isolate — it’s up to states and respective municipalities to handle anything that will happen. Some localities continue to spin up ambitious contact tracing programs, while others remain greatly constrained. As Margaret Bourdeaux explains, for example: “In Massachusetts, many of the 351 local boards of health are unaccredited, and most have only the most rudimentary digital access to accomplish the most basic public health goals of testing and contact tracing in their communities.” She cites Georgetown’s Alexandra Phelan: “Truly the amount of US COVID19 response activities that rely solely on the fax machine would horrify you.” There remain any number of well-considered plans that depend on a staged, deliberate reopening based on on testing, tracing, and supported isolation, such as ones from Harvard’s Safra Center (“We need to massively scale-up testing, contact tracing, isolation, and quarantine — together with providing the resources to make these possible for all individuals”), the Center for American Progress (calling for “instantaneous contact tracing and isolation of individuals who were in close proximity to a positive case”), and the American Enterprise Institute (“We need to harness the power of technology and drive additional resources to our state and local public-health departments, which are on the front lines of case identification and contact tracing”).

Growing up in Roxbury, Feliciano Tavares’ family shuffled in and out of shelters and subsidized housing, seeking stability amid the turbulence of poverty. But Tavares’ precarious home life was a secret to his classmates and most of his teachers in Weston, an affluent, mostly white suburb west of Boston, where he went to school through Metco, the state’s voluntary integration program for students of color. Those years going to school in Weston, Tavares said, exposed him to the “full spectrum of the American experience,” one divided along unrelenting racial and economic lines, where white children in Weston have access to every resource and opportunity imaginable, and Black children like himself can’t walk to a well-funded school in their own neighborhood. “When I hear ‘Black Lives Matter,’ I really want to focus on the ‘lives’ part of that statement,” said Tavares, who is now 42 and raising his own son and daughter with his wife in Roslindale...Organizers, city councilors, and community advocates have criticized Mayor Martin J. Walsh’s proposal to reallocate 20 percent — about $12 million — of the police department’s ballooning overtime budget to a variety of social services as woefully inadequate. “If you took the entire police budget, it wouldn’t be enough of an investment in terms of what we need,” said David Harris, managing director of the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School. He pointed to a detail from the 2017 Globe Spotlight series on race in Boston, which cited a jaw-dropping statistic: According to a report by the Federal Reserve Bank of Boston, Duke University, and the New School, the median net worth for nonimmigrant Black households in the Greater Boston region is $8, compared with $247,500 for white families. “That is the reality of life in Boston,” Harris added. “It speaks to the scale of what we face.”

In this episode, Craig Budner interviews Dr. Heidi Gardner. Growing up just outside Lancaster, Pennsylvania in Amish Country, Dr. Gardner went on to live and work on four continents, including as a Fulbright Fellow, and for McKinsey + Co. and Procter + Gamble. She earned her B.A. degree in Japanese from the University of Pennsylvania, a master’s degree from the London School of Economics, and a second master’s and Ph.D. from the London Business School. Over the past decade, she has conducted in-depth studies on numerous global professional service firms and performed empirical research on organizational collaboration. Dr. Gardner published the results of her work in Smart Collaboration: How Professionals and Their Firms Succeed by Breaking Down Silos in January 2017. Listen to how collaboration, especially during crisis, enables proactive leadership and offers better client solutions.

When you look up the hashtag #Karen on Instagram, a search that yields over 773,000 posts, the featured image on the page is a screenshot of a white woman staring intensely into the camera, pursing her lips into a smile as she touches a finger to her chin, a movement that’s at once condescending and cloying...The archetype of the Karen has risen to outstanding levels of notoriety in recent weeks, thanks to a flood of footage that’s become increasingly more violent and disturbing...The historical narrative of white women’s victimhood goes back to myths that were constructed during the era of American slavery. Black slaves were posited as sexual threats to the white women, the wives of slave owners; in reality, slave masters were the ones raping their slaves. This ideology, however, perpetuated the idea that white women, who represented the good and the moral in American society, needed to be protected by white men at all costs, thus justifying racial violence towards Black men or anyone that posed a threat to their power... “If we’re thinking about this in a historical context where white women are given the power over Black men, that their word will be valued over a Black man, that makes it particularly dangerous and that’s the problem,” says Dr. Apryl Williams, an assistant professor in communications and media at the University of Michigan and a Fellow at the Berkman Klein Center for Internet and Society at Harvard who focuses on race, gender and community in digital spaces. “White women are positioned as the virtue of society because they hold that position as the mother, as the keepers of virtuosity, all these ideologies that we associate with white motherhood and white women in particular, their certain role in society gives them power and when you couple that with this racist history, where white women are afraid of black men and black men are hypersexualized and seen as dangerous, then that’s really a volatile combination.”

When Egyptians gathered in 2011 in Cairo’s Tahrir Square to demand an end to the regime of president-for-life Hosni Mubarak, they did more than topple an unpopular dictator. Through their bravery, they sent a message to their fellow Arabs and to the world at large that change, finally, was coming to the Middle East. Today the heady dreams of 2011 seem from another era. A military coup in Egypt returned that country to tyranny, a Saudi military intervention on behalf of the regime in Bahrain ended the hopes of demonstrators there, and civil wars in Libya, Syria and Yemen have made a bloody mockery of visions of a new era of democracy. The only democratic revolution still standing is in Tunisia, where the protests began and the first dictator fell. As Noah Feldman contends in his important new book, “The Arab Winter: A Tragedy,” “the Arab spring ultimately made many people’s lives worse than they were before.” A professor at Harvard Law School, Feldman served as an adviser to U.S. officials in the early days of the Iraq occupation and after 2011 engaged with Tunisians seeking help as they designed their first real democratic constitution. “The Arab Winter” reviews four major incidents of the Arab Spring — the Egyptian uprising and coup, the Syrian civil war, the Islamic State “caliphate,” and Tunisia’s fitful progress toward democracy — to make its main points. Feldman’s book is a reflection on the Arab Spring and, as its title suggests, its disastrous ending. “The Arab Winter” is not a history. Rather, it is an argument, in the best sense of that word, couched in political philosophy. To get the most out of the argument (for who doesn’t want to argue back?) the reader should be somewhat familiar with the Middle East. An engaged Washington Post reader would appreciate the book, but it’s not for the uninitiated.

The Federal Reserve on Thursday temporarily restricted shareholder payouts by the nation’s biggest banks, barring them from buying back their own stocks or increasing dividend payments in the third quarter as regulators try to ensure banks remain strong enough to keep lending through the pandemic-induced downturn. The decision to limit payouts is an admission by the Fed that large financial institutions, while far better off than they were in the financial crisis, remain vulnerable to an economic downturn unlike any other in modern history. With virus cases across the United States still surging and business activity subdued, it remains unclear when and how robustly the economy will recover. Some of the Fed’s own loss projections for banks, in fact, suggest that the eventual hit to loans in a bad scenario could be far worse than in the aftermath of 2008...Others felt that the Fed could have gone further to shore up the financial system. Officials could have placed formal restrictions on shareholder payouts earlier in the coronavirus crisis, and the decision to do so now is a sign that regulators believe the financial system could face threats if the downturn drags on. But the fact that the Fed’s demands are not stricter could limit the amount of buffer that banks have on hand to absorb losses and make loans to households and companies should borrowers struggle to repay debts over the coming months. “A lot of this seems to be about preserving options,” said Daniel Tarullo, a former Fed governor and the original architect of much of the stress-testing regime who is now at Harvard. “That’s inconsistent with the idea of acting early in response to a major shock.”

Public-sector unions were largely able to stave off a membership exodus in the two years since the U.S. Supreme Court barred them from collecting mandatory fees, according to a Bloomberg Law analysis of federal disclosures. The court ruled in Janus v. AFSCME on June 27, 2018 that unions could no longer collect mandatory “fair share” fees to cover the costs of collective bargaining, reversing a 40-year precedent that let unions charge partial dues. These agency fee payers, as they were known, paid a lower rate than full members, whose dues also support the union’s political activity. But the high court sided with conservative petitioners, who argued that fair share fees in the public-sector violated the First Amendment. The Labor Department disclosures show that many unions were able to convert passive fee payers into full-time members, though the results vary by union. Questions remain whether the unions’ strategy is sustainable in the long run, particularly during a pandemic that has wiped out local government budgets and snarled traditional organizing efforts. “The tax base is just cratering—you have so much reduced economic activity, people aren’t paying,” said Sharon Block, a former Obama administration official who directs the Labor and Worklife Program at Harvard Law School. “State and local governments have to have balanced budgets, they can’t pass a trillion-dollar relief bill, so any shortfall is devastating.” The impact of the Janus decision could take on new proportions if the justices agree to consider whether public-sector unions have to pay back previously collected mandatory agency fees. Lower courts thus far have rejected a slew of lawsuits seeking refunds, finding that unions relied on what was then valid law when they required nonmembers to pay fees.

An article by Noah Feldman: In a sweeping decision with worrying implications for all immigrants, the Supreme Court has held that asylum-seekers rejected by immigration officials under an expedited system do not have the right to go to court to challenge their exclusion from the U.S. The majority opinion, by stalwart conservative Justice Samuel Alito, relied on originalist historical analysis to whittle down the meaning of habeas corpus to its most minimal protections. Along the way, Alito minimized and arguably misrepresented the most famous antislavery judicial decision of all time: Somerset v. Stewart, a 1772 case in which the greatest English common law judge of the era held that an enslaved Jamaican could not be forced to return to the West Indies but must be allowed to live freely in England. The specific law at issue in today’s case, Department of Homeland Security v. Thuraissigiam, is a provision of the wordily named Illegal Immigration Reform and Immigrant Responsibility act, known as IIRIRA. The law says that when a person enters the U.S., is detained at or near the border and seeks asylum, an immigration officer can interview the person and make a decision about whether the asylum-seeker has a “credible fear” of persecution that would qualify for asylum. If the answer is yes, the asylum-seeker gets a full hearing. If the answer is no, then the seeker’s case is reviewed by a supervisor and, if the asylum-seeker asks for it, by an immigration judge. This process is known as expedited review — and under the federal law, there is no way for the asylum-seeker to go to a regular federal court and seek review of the decision.

President Donald Trump isn’t a cop, and he definitely didn’t/doesn’t serve in the military. Wouldn’t that make him a civilian? Not according to White House spokesman Judd Deere, who explained that Trump will not follow New Jersey’s quarantine order because the “president of the United States is not a civilian.” But virtually every other authority leads to the conclusion that the president is — actually — a civilian. The controversy is this: the president plans to visit his New Jersey golf club days after returning from Arizona, a state where coronavirus cases are spiking. New Jersey Gov. Phil Murphy (D), along with New York Gov. Andrew Cuomo (D) and Connecticut Gov. Ned Lamont (D), announced on Wednesday that visitors who traveled to COVID-19 hotspots would need to self-quarantine for 14 days. The White House responded to a question about the president’s post-Arizona visit to N.J. by saying 1) the president is not a civilian and 2) adequate precautions would be taken...Given on all of the above, Law and Crime asked constitutional law expert and Harvard Law Professor Laurence Tribe if it was the case that the Constitution was set up in such a way as to ensure that the Commander-in-Chief of the armed forces would be a civilian. “To say that the president isn’t a ‘civilian’ is absolute bunk, to use a more polite word than the ones that come more immediately to mind. Of course the president is a civilian, fully subject to the civil and criminal laws of this nation regardless of whatever temporary immunity from prosecution he might enjoy while holding office,” Tribe said. “And you’re certainly right that the whole structure of the Constitution points to the central conclusion that the President of the United States, even and perhaps most especially in his role as Commander in Chief of the Armed Forces, would have to remain a civilian and not himself or herself be a member of the military or of any militia.”

University students across America are calling for their universities to sever ties with outside law enforcement agencies and defund any resources currently spent on policing. Thousands of university students, graduate workers, faculty and student organizations have signed petitions, issued statements, held protests, and are organizing to compel universities to carry out their demands. Campaigners want funding currently spent on campus policing to be diverted to community-based alternatives, programs for education, youth and mental health services, and affordable housing...At Harvard, students and alumni have renewed calls to abolish the school’s private police force, the HUPD, as officers from the school were seen being utilized against protest demonstrations in the city of Boston. “Harvard University has not justified the need for a police force. Around 95% of HUPD’s caseload is property crimes, offenses,” said Joanna Anyanwu '21, a student at Harvard Law School and organizer with the Harvard Prison Divestment Campaign. In January 2020, Harvard’s student-run newspaper, the Crimson, published a feature on racism within HUPD, outlining complaints and lawsuits alleging racial discrimination within its ranks over the past two decades. “The call to abolish HUPD is an acknowledgement that policing doesn’t keep us safe,” said Amber Ashley James, an organizer with the Harvard Prison Divestment Campaign. James argued funding toward the police should be redirected to programs such as mental healthcare provided to students and faculty on campus, a crisis response team, and programs to support the homeless.

An article by Tyler Ambrose '22, Zarinah Mustafa '22, and Sherin Nassar '22: Corporations, newsrooms, and political institutions have faced public pressure to denounce and combat racism as activists nationwide have pushed for police reform. However, there is an institution guilty of perpetuating racial inequality that we have yet to scrutinize: American law schools. These institutions produce the legal professionals we rely on to interpret and uphold the law, such as the district attorneys who prosecute the police. Yet, they are overwhelmingly misguided and underinformed on issues of racism in the law. And it is not entirely their fault. Law schools are complicit. As rising second-year Black and brown students at Harvard Law School, we are keenly aware of our privilege. While America is embroiled in a people’s movement for justice long denied, we recognize and embrace our responsibility to challenge the racially sterile curriculum of law school classrooms. We cannot allow these legal institutions to continue producing race-illiterate lawyers. The consequence of this illiteracy is not hypothetical. It is police killing Black people with impunity, and harsher sentences for Black and brown men, women and children. It is judges selling Black boys to prisons for profit. It is protesters marching for weeks during a pandemic. Law schools can no longer refuse to depart from the status quo while in the same breath claim they believe Black lives matter.

An article by Sean Quirk '21: As the world continues its fight against the coronavirus, the U.S. and Chinese militaries are testing each other’s limits in the Indo-Pacific region. Beijing is bristling at its neighbors, engaging in aggressive behavior while most countries are preoccupied with the pandemic. In response, the Pentagon is operating in overdrive to show Beijing that the U.S. military remains ready—on, above and below the Pacific. At sea, three U.S. carrier strike groups were underway in the Pacific by mid-June: USS Nimitz (CVN 68) operated in the Eastern Pacific, while USS Ronald Reagan (CVN 76) and USS Theodore Roosevelt (CVN 71) sailed in the Western Pacific. In the air, an expanded and well-advertised military presence has been flying across the region. On April 30, two U.S. B-1 bombers flew a 32-hour round-trip mission from South Dakota to the South China Sea. The next day, four U.S. B-1 bombers returned to Guam for “strategic deterrence missions” in the Indo-Pacific region. The U.S. Air Force said that the bomber task force serves to provide “operational unpredictability,” two weeks after ending 16 years of continuous bomber presence on Guam. The unpredictability of U.S. bombers on the island serves to complicate Chinese military planning in a wartime contingency. Then, on June 9, a U.S. military C-40A transport plane flew over Taiwan, with permission from the Taiwanese government. Chinese Su-30 Flankers briefly entered Taiwan’s Air Defense Identification Zone (ADIZ) soon afterward.

When he first arrived at Harvard College in 1958, the precocious but awkward 16-year-old was certain that mathematics was where he would make his name in the world. He appeared to be well on his way, blazing beyond his undergraduate coursework and finishing with top academic honors. But as the long-awaited door to a math Ph.D. swung open, the young immigrant, whose Russian Jewish family had left China for California right after World War II, found himself dissatisfied and inexplicably drawn to the study of law, specifically to the U.S. Constitution. Now, 62 years later, Laurence H. Tribe ’62, J.D. ’66, retires from Harvard Law School (HLS), where he has taught since 1968. A popular and beloved teacher, Tribe’s courses have influenced generations of students, including Supreme Court Chief Justice John Roberts ’76, J.D. ’79, Justice and former HLS Dean Elena Kagan J.D. ’86, and former President Barack Obama, J.D. ’91. His canonical 1978 treatise, “American Constitutional Law,” transformed the field and helped put him on the course to becoming one of the nation’s foremost legal scholars. Tribe has been a formidable advocate in high-profile cases before the U.S. Supreme Court and secured important victories in others, including one that established the press and public’s right to attend criminal trials and another that led to a ruling by the court that sexual activity between same-sex couples is a privacy right protected under the 14th Amendment. (Observers have noted that the majority opinion written by Justice Neil Gorsuch, J.D. ’91 in the recent landmark LGBT workplace-protections ruling closely tracks an amicus brief written by Tribe and Joshua Matz, J.D. ’12.) As a trusted adviser to Democratic presidents and party leaders, Tribe has influenced nominations to the Supreme Court for nearly half a century, from the late Chief Justice William H. Rehnquist to Justice Brett Kavanaugh, much to the delight and dismay of partisans. On July 1, Tribe, 78, becomes the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus.

Education Secretary Betsy DeVos fired a shot last month in the nation’s culture wars, overhauling how colleges handle investigations of sexual assault and ending what she called Obama-era “kangaroo courts” on campus. The new Education Department rules give more protections to the accused, primarily young men who face discipline or expulsion as a result of allegations of sexual misconduct...But Ms. Devos’s actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused. “The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?” There are few more contested cultural battlegrounds than college campuses and the rules that govern sexual misconduct and due process, and thorny questions of how to define sexual consent... “I’m a feminist, but I’m also a defense attorney who recognizes the importance of due process,” said Prof. Nancy Gertner, a retired federal judge and lecturer in law at Harvard, who opposed the Obama-era rules. “These are fences I’ve straddled all my life.” ...Jeannie Suk Gersen and her husband, Jacob E. Gersen, also Harvard professors, have joined in the critique of Title IX. They wrote a law review article critiquing the creation of a federal “sex bureaucracy,” which they said leveraged “sexual violence and harassment policy to regulate ordinary sex.” Professor Suk Gersen’s assessment of the DeVos changes appeared in The New Yorker.

The most valuable company in the world never to have made a quarterly profit is on a stock market run.  Pinduoduo, which claims to have reinvented online shopping in China, has seen its share price rise by more than 130 per cent in the past three months, giving it a market value of $101bn, above that of Uber or Sony and twice that of Baidu or Foxconn.  Its founder and chief executive, Colin Zheng Huang, who earned his master’s from the University of Wisconsin-Madison and later worked at Google, is now China’s third-richest man, behind Jack Ma, the founder of Alibaba. He attributes Pinduoduo’s success to a magic formula of bargains and entertainment — he has said he wants his company to be both “Costco and Disneyland”...Pinduoduo has never had a formal chief financial officer despite its US listing. The company’s previous “vice-president of finance”, Tian Xu, resigned for personal reasons in April last year after just 10 months in the job. “Concentrating almost all corporate power in the hands of a single individual should raise a red flag, as it creates substantial corporate governance risk,” said Jesse Fried, a corporate governance expert at Harvard Law School. “That’s true even if a corporate controller serves as board chair and CEO, but not CFO. But what’s unusual and particularly worrisome here is that the controller is also effectively the CFO.”

All this week, we’ve been looking at internet access, cost, infrastructure, and today, competition. Actually, the almost complete lack of competition.  According to a 2017 study from the nonprofit Institute for Local Self-Reliance, more than 129 million people in the U.S. only have one option for broadband. Is that a government problem or a free market problem? I spoke with Susan Crawford, a law professor at Harvard and the author of the book “Fiber: The Coming Tech Revolution — and Why America Might Miss It.” The following is an edited transcript of our conversation.

Many Americans receiving tax refunds this spring and summer, including some who haven’t even filed their tax returns yet, will receive interest payments from the Internal Revenue Service for late refunds. Any individual income tax refunds issued after April 15 will be paid with interest, even though the tax-filing deadline has been extended to July 15. That IRS decision, announced Wednesday, stems from a quirk in the tax code and in the way the filing deadline was extended. The result: Many people who chose to delay filing their tax returns will get a bonus from the government. The IRS, meanwhile, will be paying for the privilege of holding on to the money since April 15—even to taxpayers who haven’t claimed it yet...The tax-code section governing interest payments says the 45-day period is determined from the due date without regard to extensions. This year, however, that 45-day rule isn’t in effect and interest started accruing after April 15. The IRS said the interest payments may arrive separately from tax refunds. The IRS approach seems fair, and it makes sure to provide interest payments to people who filed early and are still waiting for refunds, said Keith Fogg, who directs the Harvard Law School program that offers tax assistance to low-income households. “The IRS seems to have chosen a method that is very taxpayer friendly and will not subject it to criticism,” he said. “Hard to fault it for that.” There is one catch: The interest payments from the IRS will count as taxable income for 2020.

An appellate panel's decision ordering a judge to dismiss charges against former national security adviser Michael Flynn could face review by the full D.C. Circuit over issues of judicial authority and questions about whether the appeals court overstepped its own bounds. The appellate court on Wednesday ordered U.S. District Judge Emmet Sullivan to approve the U.S. Department of Justice's move to drop the two-year-old case against Flynn, who had already pled guilty but sought to withdraw the plea over alleged prosecutorial misconduct. Legal observers noted on Wednesday that the full 11-member appeals court can revisit the question of whether it had the authority to weigh in before Judge Sullivan had even ruled on the motion. Nancy Gertner, a retired federal judge and lecturer at Harvard Law School, told Law360 that the appeals court had done the "unthinkable" by issuing a writ of mandamus forcing Judge Sullivan to make a ruling before he had gotten around to making one himself. The ruling could encourage parties to attempt end-runs around federal judges by asking appellate courts to weigh in, she said. "It is simply extraordinary to order mandamus when the district court judge has not made a decision," Gertner said. "What it invites is the functional equivalent of disqualification of a trial judge by the court of appeals — you don't like what the judge is doing, you go up for mandamus." Gertner is one of two dozen former federal judges who had filed an amicus brief in the case in support of Judge Sullivan.