Media Mentions

An article by Leah Plunkett: The terms and conditions of our lives have changed beyond recognition in recent weeks. It's time the terms and conditions provided by digital technology companies be rewritten to match. Consider the deal we've made with most tech companies: we give up our private information and they give us free or low-cost digital services in exchange for using this data however they want. On any given day, this deal is dishonorable. During the Covid-19 pandemic, when children and their parents are relying on the internet more than ever, it's immoral. Data that is collected from and about our children, used by tech companies, and shared with third parties can have a serious impact on their future. Tech companies should safeguard our children's privacy by stopping these invasive practices. From school to sports to social activities and so much more, we are scrambling to get our kids online in order to adapt to our new reality. We are logging in to countless platforms to bring the world into our homes. In doing so, we're also giving out our children's personal information at an ever-increasing rate.

An article by Noah Feldman: It was easy to miss in the middle of our Covid-19 madness — but this week, the Supreme Court issued its most interesting decision of its current term so far. At issue was whether it’s constitutional for a state to allow for criminal conviction on a 10-2 jury verdict instead of requiring unanimity. But that wasn’t what made the case interesting. Rather, the case, Ramos v. Louisiana, featured heated disputes that, for once, split the court not along squarely ideological lines — but across them. One argument was about whether a law’s racist historical origins are relevant to its constitutionality when there are modern, nonracist reasons for it. The other was about when the principle of judicial precedent should lead the court to uphold a prior decision even if it considers the decision weak or wrong. Both disputes will have long-term consequences — and the latter sheds some light on the perennial question of whether and when the court might overturn Roe v. Wade, the 1973 decision that recognized a legal right to abortion.

A podcast by Noah Feldman: Pardis Sabeti, a computational biologist at Harvard and the Broad Institute, discusses when and how to re-open colleges and universities, why the US is behind other countries when it comes to containing the spread of coronavirus, and a plan to stop pandemics in the future.

A Harvard law professor believes that homeschooling can be 'dangerous' because it gives parents authoritarian control over their children. More than 50 million children in the United States are at home due to the coronavirus pandemic that forced the shut down of schools, restaurants and bars, and other businesses deemed non-essential. While states are developing plans to slowly reopen, it's unclear if that will take weeks or months, which means children will likely be at home for the remainder of the 2019-2020 school. And Harvard law professor, Elizabeth Bartholet, believes that is a 'dangerous' thing. In the May-June issue of Harvard Magazine, Bartholet speaks about her thoughts on children being homeschooled by their parents or guardians. 'The issue is, do we think that parents should have 24/7, essentially authoritarian control over their children from ages zero to 18?' Bartholet asked. 'I think that's dangerous. I think it's always dangerous to put powerful people in charge of the powerless, and to give the powerful ones total authority,' she said. Bartholet explained her reasoning by pointing at the possibility of children being abused while at home, especially since teachers are 'mandated reporters' if they suspect child abuse.

With job losses mounting during the pandemic, thousands of Massachusetts veterans are turning to a $72 million state program that is intended to provide them with emergency cash assistance for basic needs such as housing, food, fuel, and medical care. The Veterans Legal Clinic at Harvard Law School has reported a tenfold increase in recent visitors to its online calculator that helps veterans determine their eligibility for the benefits program, which the state describes as the only one of its kind in the nation...Advocates said the state needs to do a much better job providing veterans with information about benefits that can exceed $1,000 per month for a single person with no dependents. A veteran and spouse can receive a maximum of twice that amount. “We urge DVS to more aggressively get the word out about these benefits, including making information about the program more accessible to the public on its website,” said Betsy Gwin, associate director of the Harvard veterans clinic...Officials at the two advocacy organizations said they still had not received a single reply from Francisco Urena, the Department of Veterans’ Services secretary, despite multiple requests over the past month to discuss how to expedite and ease access to the benefits...Richardson and Daniel Nagin, director of the Harvard legal clinic, wrote to Urena late last month that with "mortgage, rent, and other bills looming, and new layoffs, furloughs, and COVID-19 cases occurring each day, it is critical that DVS act now to ensure access to this vital resource."

Washington Gov. Jay Inslee, who issued some of the earliest social-distancing orders of any governor to combat the spread of the coronavirus, took issue with President Donald Trump’s tweeted solidarity with protesters in several states who were demanding an end to stay-at-home orders...We wondered whether it’s accurate to call state stay-at-home orders "laws," and whether they conflict with freedoms of speech and assembly under the First Amendment. So we asked legal experts. They agreed that while most fall under the heading of "proclamations" or "executive orders," they were issued under legal authority delegated by legislatures, meaning that have the same practical effect. The orders also would have a good chance of being deemed constitutional in court, they said...Experts told PolitiFact that despite the linguistic and procedural differences between orders and law, the stay-at-home orders effectively carry the force of law. "Calling it ‘the law of the state’ is fair," said I. Glenn Cohen, a Harvard Law School professor. "Statutes passed by legislatures are what most people think of when one says ‘laws,’ but from a lawyer’s point of view, a common-law decision by a judge, a regulation, or an action by the governor would all qualify broadly as ‘the law.’"

Former students have bad things to say about a for-profit college that allegedly took their money and left them jobless. Now, they’ve filed a class-action suit against Florida Career College and its parent company, the International Education Corp., based in Irvine, California. The ex-students have Miami lawyers from Gelber Schachter and Greenberg; New Jersey counsel from Carella, Byrne, Cecchi, Olstein, Brody and Agnello; and a legal team from the Project on Predatory Student Lending at Harvard Law School in Massachusetts. They filed suit in the U.S. District Court for the Southern District of Florida. The plaintiffs allege the Florida-based, for-profit college chain Florida Career College sold a predatory product with meritless promises. At the same time, recruiters targeted financially vulnerable people — often black men and women — using high-pressure tactics.

Two groups led by law school students and deans, respectively, are urging the Supreme Court of California to cancel in-person bar exams due to Covid-19 for the remainder of 2020, but it’s been harder to find a consensus in the state and beyond for what comes next. The two California coalitions agree that the exam currently scheduled for July 28-29 shouldn’t be delayed until September, which was recently recommended as a “preferred option” by the state bar’s board of trustees, but rather dashed altogether because of lingering virus-related public health dangers. But beyond that, their perspectives diverge. A group of deans from 17 California law schools, including Berkeley, Stanford, and UCLA, are in favor of provisional licenses, which would allow new graduates to practice while overseen by a licensed attorney until they eventually take and pass the bar, as long as they meet other bar admission requirements...The law student-led coalition, which includes more than 1,400 law students and recent graduates, professors, and practicing attorneys argued this approach would be highly disruptive to young lawyers. Instead, they’re in favor of “emergency diploma privileges,” which allow law students to practice without passing the bar. “It’s the only alternative that makes sense during a global pandemic,” said Donna Saadati-Soto '20, a third-year Harvard Law School student who has co-led the coalition. Delays of any kind make little sense, because no one knows when the virus crisis will be over, said Saadati-Soto. Plus, some law students already have locked in full-time job start dates.

An article by Laurence Tribe: The benefits of the data-driven coronavirus tracing programs are immediate and tangible. The costs are more abstract and uncertain. But by trading abstract harms for short-term gain, we risk permanently damaging the fabric of our society. Reopening our economy and society will require revealing more about ourselves than ever before. Knowing who can safely reenter public spaces demands extensive contagion testing, contact tracing and sharing medical information long deemed “private.” Especially for the digital generation, that might seem a low price to pay for greater normalcy. But history teaches us to beware such bargains. They can permanently transform us in ways we will come to regret, as we drift over a “privacy horizon” from which we might never return. Paradoxically, privacy is a public value. It begins with personal choices about what individuals share, and with whom. But the cumulative impact of those judgments far exceeds the sum of their parts. Just as decisions about liberty of speech shape not only personal expression but the vibrancy and openness of society as a whole, so too do decisions about privacy shape the character of the community.

An article by Noah Feldman: It’s not an exaggeration to say that the total ban on immigration that President Donald Trump announced by tweet is among the most extreme acts of unilateral executive authority attempted by any president since World War II. It will generate immediate legal challenges, and the ensuing litigation will reach the Supreme Court sooner rather than later. “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens,” Trump tweeted at 10pm last night, “I will be signing an Executive Order to temporarily suspend immigration into the United States!” An actual order hasn’t yet been issued yet, and without one, it’s tough to predict what the legal result of any challenges to it will be. But the court’s Trump v. Hawaii decision upholding the president’s Muslim ban provides some guidance. Federal law authorizes the president to “suspend the entry of all aliens” into the United States whenever he “finds” that their entry “would be detrimental to the interests of the United States.” To suspend all immigration now, the Trump administration will have to explain why allowing any immigrant into the country would be detrimental to U.S. interests. In practice, that means the government will have to provide a reason for the ban that is based on facts, not mere presidential fiat expressed in under 240 characters.

A podcast by Noah Feldman: Omai Garner, the director of clinical microbiology testing at UCLA Health, explains why more Americans have not been tested for COVID-19.

A recent filing submitted to the Federal Energy Regulatory Commission could "end net metering as we know it," according to legal experts. The petition from the New England Ratepayers Association (NERA) asks FERC to "declare that there is exclusive federal jurisdiction over wholesale energy sales from generation sources located on the customer side of the retail meter." In other words, NERA makes the case that any behind-the-meter, or customer-sited, energy generation is a wholesale sale, subject to FERC jurisdiction. The group's points echo some of the issues raised by utilities and their trade groups, which have long argued that forcing utilities to pay rooftop solar owners for the excess power they produce is unfair to ratepayers who don't site solar. But the fact that the issue is being raised by a non-profit regional ratepayers group is raising eyebrows for some...The technical feasibility of such a shift is not clear, Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. told Utility Dive. Most rooftop solar would likely fall under the jurisdiction of PURPA as a qualifying facility, and therefore be priced based on the avoided cost of generating that power, argued the petition... "The practical implication would have to be that you'd have to add this giant cost on all these presumably existing and new rooftop solar facilities that they would need the second meter," said Peskoe. "I don't know how that would work."

An article by Ashley Nunes: To say US airlines are struggling is putting it mildly. Coronavirus has crushed air travel demand, threatening both balance sheets and jobs. It’s true we’ve been here before. In the aftermath of the 9/11 attacks, public enthusiasm towards flying waned which culminated in heavy losses for the airlines. Back then, however, US airlines received just $15 billion in government aid to stay afloat. In a sign of how serious the current situation is, Washington has upped the ante to the tune of $50 billion. Bailing out airlines is risky. Do nothing and the knock-on effects might drag down the economy. America’s economic might depends in large measure on having a vibrant aviation industry. But propping up private carriers at taxpayers’ expense naturally invites public ire. Americans may love to fly but we also love to complain about flying. Which explains why Washington wants consumer-friendly strings attached to any bailout package. The most relevant of these (for passengers at least) include the waiving of change fees, bag fees, and fees for really anything airline execs can think of (bland meals, flat pillows and more legroom come to mind). Bailing out airlines is risky. Do nothing and the knock-on effects might drag down the economy. America’s economic might depends in large measure on having a vibrant aviation industry. But propping up private carriers at taxpayers’ expense naturally invites public ire.

Next Thursday, April 23, the CPC will convene the first in a series of remote congressional hearings to highlight bold and necessary proposals for responding to the pandemic and to the economic crisis that has developed as a result. Thursday’s hearing will consider mass unemployment, with a focus on “Preventing Layoffs: Keeping People Employed Through Worksharing and a National Paycheck Guarantee.” ...Pocan and CPC cochair Pramila Jayapal have since March been advocating for proposals that would have the federal government intervene in a major way to help businesses keep workers on the payroll at a point when unemployment claims are surging to record levels. Last week, Jayapal introduced the Paycheck Guarantee Act, a plan to provide a three-month federal guarantee for 100 percent of worker salaries of up to $100,000 to ensure employers keep workers on the payroll and continue to provide employer-sponsored benefits...This is the kind of big, bold response that needs a hearing. And Pocan, a cosponsor of the Paycheck Guarantee Act and a leading advocate for providing protections for small businesses and their employees with an expansion of existing state workshare programs, says the CPC will provide it. Organized along the lines of a traditional House hearing, the “Preventing Layoffs” hearing will be chaired by Pocan and Jayapal and feature expert testimony from Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, and Amanda Ballantyne, the director of the Main Street Alliance, a group that advocates for small businesses.

Atlantic Richfield Co. might be off the hook for added cleanup liability at a Montana site after the Supreme Court on Monday partially resolved a high-stakes Superfund case in the oil company’s favor—but the door is still open for similar claims in other cases. All eyes are now on the Environmental Protection Agency and Montana courts, as they decide what happens next. At issue in the case is an effort by Montana landowners who wanted Atlantic Richfield to pay for additional cleanup work in their backyards. The justices’ 7-2 opinion says the landowners can’t pursue those claims without the EPA’s blessing...But the decision also sidesteps the company’s broader argument that federal Superfund law preempts the types of claims the landowners brought...It’s a mixed result, Harvard Law School professor Richard J. Lazarus said, because the decision “keeps alive the potential for suits under state law in state courts related to Superfund cleanups in future cases,” but with the “major catch” that challengers must first get the EPA’s approval.

An article by Noah Feldman: President Donald Trump’s encouragement of protests against states’ stay-in-place orders is un-presidential in the colloquial sense: it’s unbecoming of a president. But Trump’s latest gambit is un-presidential in a much deeper sense, too. It contradicts the very constitutional justification for why we have a president in the first place. The whole point of the presidency is to have an elected official who represents the interests of the entire country, not of a specific state or electoral district. That is, the purpose of the presidency is unification. Trump’s goal, to the contrary, is to drive state-by-state division. He’s undermining the very ideal of a unified United States in pursuit of electoral advantage. To understand why we have a president, it’s useful to consider why we don’t have a prime minister. After all, the founding fathers were creating a republic, in which all officials would be elected and nobody would be above the law. If the United States of America was not to have a king, it would have made logical sense for its executive to be a member of the legislature, first among equals. But the framers of the Constitution wanted to create a different version of the separation of powers than Britain’s.

A Massachusetts-based nonprofit that took down a biomass subsidy in New Hampshire last year has set its sights on upending net metering nationwide. The New England Ratepayers Association filed a petition last week asking the Federal Energy Regulatory Commission to effectively curtail net metering, a practice that requires utilities to pay rooftop solar owners for the extra electricity they generate and send to the grid. The petition calls on FERC to place the widespread practice under federal jurisdiction. The move away from state regulation could significantly cut the rates paid to rooftop solar owners and other on-site power generators. But the group says placing net metering under federal authority would lower electricity costs for ratepayers...Ari Peskoe, director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program, immediately slammed the petition in a series of tweets. "This is a petition filed by this mysterious group calling themselves New England Ratepayers Association," he told E&E News. "Nobody knows who funds them, and they cite no new case law. There is absolutely no reason to raise this issue now." ...While FERC has always considered energy procured by utilities through net metering a retail sale that falls under state authority, NERA argues that net-metering transactions constitute "sales for resale," which it says should be treated as a wholesale power market transaction that falls under FERC jurisdiction. Peskoe dismissed this idea, noting that FERC only has jurisdiction over wholesale sales in interstate commerce. "An energy transfer effectuated through a state-regulated net-metering tariff is neither a wholesale sale nor a sale in interstate commerce," he said.

The U.S. Environmental Protection Agency opened a Pandora's box for utilities with an about-face on the justification underpinning an Obama-era rule limiting coal-fired power plants' mercury emissions, including the potential that ratepayers will try to claw back what they paid for utilities to comply with the rule. Experts say that at best, the EPA's finalized cost-benefit analysis of its Mercury and Air Toxics Standards rule is an empty gesture to utilities. The EPA said it's not "appropriate or necessary" to regulate hazardous air pollutants from coal and oil-fired plants under Section 112 of the Clean Air Act, but the rule remains in place and utilities have already spent billions to comply with it...EPA Administrator Andrew Wheeler said Thursday that the agency is prepared to defend in court its decision to keep the MATS rule — which was enacted in 2012 and required utilities to comply by 2015 — in place...Experts say the EPA could have really cut the legs out from under the MATS rule by also removing power plants from the list of pollution source categories subject to regulation under Section 112, but ultimately decided not to. "Although there is still some chance that the coal industry will challenge the standards on the grounds that the appropriate and necessary finding is gone, their prospects for success are dimmer now," said Joseph Goffman, an Obama-era EPA official who is now the executive director of Harvard Law School's Environmental and Energy Law Program.

In the coronavirus era, the heroes drive delivery trucks, bag groceries, and clean hospital floors. As those employees have stayed on the job, risking their lives to ensure others can stay comfortable in seclusion, a new movement is underway to help those workers. Foundations that have long supported labor groups are stepping up their funding and recruiting others to join a movement that some experts think could lead to sweeping policy changes. On Tuesday, a group of eight grant makers and individual donors committed $7.1 million to the Families and Workers Fund, which will make grants for emergencies and for advocacy efforts to push for long-term policy efforts to reshape labor regulation...Other labor nonprofits are building support for policy changes that would benefit employees. The Clean Slate for Worker Power at Harvard University Law School’s Labor and Worklife Program, for instance, used grants from the Ford, Hewlett, Kellogg, and Public Welfare foundations to produce a 130-page set of policy recommendations that would help worker groups generate revenue, provide better or portable health coverage for workers, and require that 40 percent of corporate board seats are chosen by workers, among other things. Sharon Block, the program’s executive director, says the project will continue to flesh out a labor agenda. "We are not going to alleviate the pain that so many workers are in tomorrow," she says. "What we want to do is provide source material for groups that are trying to make systemic change. We want to provide some of the answers."

Solar net metering, the backbone of the U.S. rooftop solar market for the past two decades, may be facing its most important legal challenge in years — and it's coming at a time when the industry is already reeling from the impact of the coronavirus pandemic. A nonprofit group that’s spent years fighting clean energy legislation in New England is pressing federal regulators to approve a legal argument that could lay the groundwork for challenges to the solar net metering policies now in place in 41 states. Last week, the New England Ratepayers Association (NERA) filed a petition with the Federal Energy Regulatory Commission, asking it to declare "exclusive federal jurisdiction over wholesale energy sales from generation sources located on the customer side of the retail meter.” In other words, NERA is asking FERC to assert control over all state net metering programs, which pay customers for the energy they don't consume on-site, but feed back to the power grid...FERC has addressed net energy metering before in decisions in 2001 and in 2009, Ari Peskoe said. In both cases, “FERC’s position has been that any time there’s a sale for resale, it’s going to be FERC’s jurisdiction,” he said — a view that supports NERA’s argument. At the same time, FERC’s 2001 and 2009 decisions “basically said, when a ratepayer transfers energy to its utility through a net metering arrangement, that’s not a wholesale sale; that's a matter of accounting […] subject to state oversight,” Peskoe said. NERA’s petition declares that “[t]his reasoning was never correct,” and asks FERC to overturn it. As for whether net-metered solar is an interstate sale, “there’s no compelling case law that says it is,” and “lots of compelling argument that it is not,” Peskoe said.

An article by Sharon Block and Mike Firestone: In its sweeping response to the coronavirus pandemic, Congress threw a financial lifeline to millions of Americans and made so-called “gig economy” workers, like Uber drivers, eligible for unemployment assistance for the first time. But the economic crisis begs the question why Uber drivers weren’t eligible already. The answer is simple. It’s because, unlike other Massachusetts businesses, Uber doesn’t pay unemployment insurance to cover its workers or extend them other crucial protections, and the major gig-economy companies (we’ll call them Big Gig) fight every effort to require it. This opposition left millions of workers without a safety net when the bottom fell out of our economy. Massachusetts should continue to fight Big Gig’s tactics to deny full protection to workers, but in this moment of crisis, the state should take new action to require Uber to pay for benefits their drivers so desperately need and deserve. It’s time to end Uber’s free ride. States like Massachusetts, New Jersey, and California have fought for years to protect gig workers by demanding that DoorDash, Lyft, and other Big Gig companies stop misclassifying their drivers and delivery workers as independent contractors instead of as employees. Through misclassification, Big Gig companies have flouted state laws requiring employers to cover the cost of unemployment insurance, workers’ compensation, minimum wage, and sick days.