Media Mentions

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.

An article by Evelyn Douek: The ordinary laws no longer govern. Every day, new rules are being written to deal with the crisis. Freedoms are curtailed. Enforcement is heavy-handed. Usual civil-liberties protections, such as rights of appeal, are suspended. By act, if not by word, a state of emergency has been declared. This is not a description of the United States, or even Hungary. It’s the internet during the coronavirus pandemic. We are living under an emergency constitution invoked by Facebook, Google, and other major tech platforms. In normal times, these companies are loath to pass judgment about what’s true and what’s false. But lately they have been taking unusually bold steps to keep misinformation about COVID-19 from circulating. As a matter of public health, these moves are entirely prudent. But as a matter of free speech, the platforms’ unconstrained power to change the rules virtually overnight is deeply disconcerting.

An article by Jeannie Suk Gersen: Most crises in American life have been local. Even the disasters of earthquakes, tornadoes, hurricanes, and floods are relatively confined in space and time. They do not spread to every state and threaten every corner of all of our lives. The coronavirus pandemic is that rare crisis that is truly national, where the response of a state may ultimately be only as effective as the response of other states. By now the vast majority of the country is under stay-at-home orders, issued state by state, but a handful of holdout states threaten to undercut the efficacy of others’ costly and painful social-distancing efforts. As a result, states with fewer infections and deaths may merely await their turn to become hot spots, particularly as some states with lockdowns could begin to lift them prematurely while others keep their lockdowns in place. The dangers of non-uniformity urge the question: If our fates are bound together in this emergency, why has there been no national stay-at-home order? Asked earlier this month whether there should be a federal order locking down the nation, Anthony Fauci, the director of the National Institute for Allergy and Infectious Diseases, said, “I just don’t understand why we’re not doing that—we really should be,” but he also acknowledged a tension with “states’ rights to do what they want.” Fauci is not alone in thinking that a national order would be preferable.

A rapidly increasing number of American families are opting out of sending their children to school, choosing instead to educate them at home. Homeschooled kids now account for roughly 3 percent to 4 percent of school-age children in the United States, a number equivalent to those attending charter schools, and larger than the number currently in parochial schools. Yet Elizabeth Bartholet, Wasserstein public interest professor of law and faculty director of the Law School’s Child Advocacy Program, sees risks for children—and society—in homeschooling, and recommends a presumptive ban on the practice. Homeschooling, she says, not only violates children’s right to a “meaningful education” and their right to be protected from potential child abuse, but may keep them from contributing positively to a democratic society. “We have an essentially unregulated regime in the area of homeschooling,” Bartholet asserts. All 50 states have laws that make education compulsory, and state constitutions ensure a right to education, “but if you look at the legal regime governing homeschooling, there are very few requirements that parents do anything.” Even apparent requirements such as submitting curricula, or providing evidence that teaching and learning are taking place, she says, aren’t necessarily enforced. Only about a dozen states have rules about the level of education needed by parents who homeschool, she adds. “That means, effectively, that people can homeschool who’ve never gone to school themselves, who don’t read or write themselves.” In another handful of states, parents are not required to register their children as homeschooled; they can simply keep their kids at home.

Danny Meyer — restaurateur and founder of Shake Shack — said he is already envisioning the changes he will make when he finally gets the green light to reopen his restaurant empire. Kitchen employees will have to wear masks and not only have their temperature taken, but also look their manager in the eye and verbally confirm they are feeling healthy...Last week, President Trump released a set of guidelines for beginning to reopen the country amid the coronavirus pandemic. But what Trump says won’t much matter if skittish elected leaders, business owners and customers don’t trust that they will be safe returning to their daily lives — and at the moment, most Americans don’t have that confidence. In a poll released Thursday by the Pew Research Center, three-quarters of U.S. adults said the worst is yet to come with the novel coronavirus, and two-thirds were worried that restrictions would be lifted too soon...Cass Sunstein, a professor at Harvard Law School and a former adviser to President Barack Obama, said people’s behavior will hinge in part on how trustworthy they view the leader offering the guidance. “If the governor seems to be credible on the health topic,” Sunstein said, people are far more likely to be reassured “than if the governor seems to be responding to political pressure or seems to be scared of something.” But, he added, community signals will also be crucial. “What do people see people like them doing?” Sunstein asked. “If people see everyone else staying home, they tend to think that’s the right thing to do, and they see everyone going out, they tend to think, ‘Well, I should go out, too.’”

Whenever U.S. stores, restaurants and theaters reopen from coronavirus shutdowns, they may face an unexpected problem: lawsuits from sick patrons and workers. Business owners hit hard by Covid-19 are eager to get back to work as the outbreak shows signs of slowing and the Trump administration pushes for a quick restart of the nation’s economy. But with no vaccine for the easily transmitted virus, companies opening too soon could be blamed if more people get sick...A wave of personal-injury cases could bankrupt businesses, according to the U.S. Chamber of Commerce, which is recommending government protections. And though it may be difficult to prove that any one company was responsible for spreading Covid-19, legal experts say a surge in such claims could strain the court system...For those that reopen before eradication, there is an increased risk that customers will claim they got sick and suffered due to the company’s negligence, said John Goldberg, a professor at Harvard Law School and an expert in tort law. Plaintiffs must show, among other things, that the business breached a duty of care owed to the customers and that its actions caused them harm, Goldberg said.

In these times of COVID-19, schools are closed, offices are shut down and families must coexist while sheltering in place. The result is a spike in fear and a decrease in happiness nationwide, according to an artificial intelligence algorithm that analyzes more than a billion social media messages in the U.S. each day. Some online messages created by Natick public school students are included in those billion-plus messages, because the district has a contract with Social Sentinel, a Burlington, Vermont-based company that created the algorithm...Some experts who spoke with the Daily News question whether the arrangement is an invasion of privacy, and whether it could potentially erode a sense of trust between school officials and students...State and federal laws don’t give a clear answer on whether companies like Social Sentinel represent an invasion of personal privacy, said David O’Brien, assistant research director for privacy and security at the Berkman Klein Center for Internet and Society at Harvard University. The federal Family Educational Rights and Privacy Act prohibits schools from releasing sensitive information, such as grades and disciplinary records, according to O’Brien. O’Brien said many laws regarding privacy were enacted in the 1970s. In many cases, they give schools control over information released about students. But when it comes to companies like Social Sentinel, O’Brien thinks there could be an invasion of privacy. “In my opinion, things become more invasive when collecting in mass,” he said. “An algorithm that gives insight into behavior and feelings starts to look more invasive.”

On Friday, President Donald Trump announced a $19 billion economic rescue package for some of our most essential workers: farmers and ranchers. To learn more, KCBS Radio news anchor Ted Ramey spoke with Emily Broad Leib, Clinical Professor of Law and Director of the Harvard Law School Food Law and Policy Clinic.

An article by Cass Sunstein: How many Americans are going to die from the coronavirus? How will we know if the national government or the states have done a commendable job or a terrible one? Here’s a comment from President Donald Trump in late March: "So you’re talking about 2.2 million deaths, 2.2 million people from this. And so if we could hold that down, as we’re saying, to 100,000. It’s a horrible number, maybe even less — but to 100,000. So we have between 100 and 200,000, and we altogether have done a very good job." Do you see what Trump did there? It’s called “anchoring,” and it’s one of the most important findings in behavioral science. People who have been involved in real estate, like Trump, are often experts in the use of anchors. Trump specified an anchor (2.2 million deaths), and he used it to support his claim that if 100,000 to 200,000 Americans end up dying, he has “done a very good job.” Whenever the goal is to affect people’s evaluations, it’s smart to get a particular number in their heads, whether it involves pricing property or estimating deaths. That number often sticks. It influences their judgments about what’s likely or what’s fair, and about what counts as a successful outcome or instead a disaster.

An article by Glenn Hubbard and Hal Scott: The U.S. economy is in free fall. Leading economic forecasters predict as much as an 11% year-over-year decline in second-quarter gross domestic product. Small businesses—those with under 500 employees, which constitute 50% of the workforce and 44% of GDP—have closed their doors and are teetering from illiquidity to insolvency. Depression is around the corner. The priority should be to get funds to these firms to avoid disaster. Unfortunately, the Main Street Expanded Loan Facility, designed by the Treasury and Federal Reserve, will fail to do so. It wrongfully prioritizes preventing losses over rescuing the economy. The Treasury needs to allocate much more than $75 billion to this program if it is to succeed. The Main Street Facility is an essential expansion of the $349 billion Congress initially provided to small business through the Cares Act’s Paycheck Protection Program—money that ran out Thursday. Lawmakers rightly prioritized saving small business over the substantial cost involved. Most of the PPP loans won’t be repaid, because the program forgives loans if borrowers spend 75% on retaining employees. Congress is expected to allot another $250 billion to PPP.

An article by Cass Sunstein: Since Jan. 30, 2017, the Trump administration’s approach to federal regulation has been defined by a simple requirement: “one in, two out.” The basic idea, set out in one of President Trump’s first executive orders, is that whenever a federal agency issues one regulation, it has to take at least two regulations away — and produce an incremental cost, on the private sector, of zero. The idea was absurd from the very start. It was profoundly demoralizing to experts in federal agencies, who know a lot about science and who have plenty of good ideas about how to protect public health and safety. But its absurdity has been put in a whole new light by the Covid-19 pandemic, which demonstrates that the regulatory state is no enemy of the people — and that smart safeguards, designed by specialists, save lives. It is true that to many people, the one-in, two-out idea has a lot of intuitive appeal. For one thing, it instructs regulators — at the Environmental Protection Agency, the Department of Transportation, the Department of Health and Human Services and elsewhere — to get rid of outmoded or dumb regulations. If we want to free up the private sector from regulations that do more harm than good, it might make sense to insist: If you want to do something new, you had better get rid of something old. But there is a subtler point. Mr. Trump clearly wanted to slow the issuance of new regulations. The one-in, two-out principle is well suited to achieving that goal.

An article by Carol Rose and Robert Greenwald: During the 1918 influenza pandemic, local governments in the United States placed special placards on the doors of homes where sick people were subject to quarantine. The measure was an attempt to contain the spread of a virus that ultimately killed nearly 700,000 people in the United States alone. Sadly, this well-intentioned move backfired: Many doctors chose not to report cases in order to prevent homes from being quarantined. Families of sick people sought to evade the stigma of a placard on their homes by not seeking medical attention. In light of today’s coronavirus crisis, it’s useful to recall this history and to avoid repeating the mistakes of the past. Yet in an executive order dated March 18, the administration of Governor Charlie Baker directed local boards of health to submit to first responders the home addresses of people who have tested positive for the virus. The idea is that police, fire services, and EMTs should know which homes have COVID-19 cases so that responders can adequately protect themselves. Protecting the health of first responders is certainly an important priority that the state needs to address; however, some public health experts have noted that disclosing addresses does not ensure a first responder would be safe from exposure from asymptomatic people or from those who are infected but remain untested. It may seem counterintuitive, but this order could indeed do more harm than good.

The U.S. Chamber of Commerce and conservative groups are lobbying lawmakers to give companies legal immunity if front-line workers believe they got sick on the job, or if families say their loved one died after catching COVID-19 at work. Lawsuits from workers who were exposed to COVID-19 are “perhaps the largest area of concern for the overall business community” ahead of the economy reopening, a chamber memo to its members this week states. The powerful lobby argues the sheer number of lawsuits could overwhelm businesses. Businesses say they keep their workplaces safe, but the memo indicates that major corporations privately acknowledge that many so-called essential employees will get sick or die...It also concerns labor experts, who say that while these lawsuits are rare, a safe harbor could disincentivize companies from sanitizing work stations, providing protective equipment like masks and enforcing social distancing. “The chamber’s proposals are all about shielding companies from liability, which is a particularly dangerous thing to do during the pandemic. Our laws should incentivize protecting workers and consumers, and the fact that companies could be held accountable for negligence is absolutely crucial to protecting people and public health,” said Terri Gerstein, a Harvard Law School Labor and Worklife Program director.

While all tax attorneys face challenges representing clients during the COVID-19 pandemic, tax practitioners fear that IRS Appeals cases face particular setbacks due to a lack of face-to-face meetings with Appeals employees and the office's resource constraints. Successfully working cases before the Internal Revenue Service's Independent Office of Appeals depends particularly on the relationship between the tax practitioner and Appeals officers. That rapport can be difficult to maintain when all meetings are conducted over the phone or via teleconference while IRS employees are under a work-at-home order...Attorneys involved in lower-tiered disputes that don't involve complex portions of the tax code or large case files may not be affected that much, according to T. Keith Fogg, law professor and director of the Federal Tax Clinic at Harvard Law School's Legal Services Center. “For most of my clients, because they're low income, Appeals doesn't want to have a face-to-face conference to begin with,” Fogg told Law360. “We don't normally push for one either. So it's not a big deal for us.”

The federal judge overseeing the criminal case against Roger J. Stone Jr. refused on Thursday to grant him a new trial, rejecting the defense’s argument of juror misconduct that President Trump has also repeatedly trumpeted. Judge Amy Berman Jackson of the United States District Court in Washington ordered Mr. Stone to surrender to the federal Bureau of Prisons as soon as he is notified to do so. She also released him and his lawyers from a gag order she imposed months ago. The judge’s decision appears to end one of the most politically fraught federal criminal cases in recent years. In a last-ditch effort to keep their client out of prison, Mr. Stone’s lawyers had claimed that the jury forewoman had improperly concealed a bias against Mr. Stone, justifying a new trial...Prosecutors argued that the defense motion for a new trial was “nothing more than an attempt to fuel its public campaign to undermine the jury’s verdict through a frivolous juror misconduct claim.” Nonetheless, in an unusual move, Judge Jackson held a four-hour hearing on the motion, summoning a dozen jurors back to the courtroom in February, three months after they had rendered a verdict. Nancy Gertner, a retired federal judge who now teaches at Harvard Law School, said she believed the judge was being especially careful because the case had been so high-profile, not because the president was “breathing down her neck.” “I would have done what she did,” she said.

The Supreme Court’s announcement this week that it will hold oral arguments via teleconference for the first time in its history has a small group of America’s top attorneys prepping for the most important phone calls of their careers. The court said that it will hear 10 arguments over the first two weeks in May, including blockbuster disputes over the Electoral College and whether President Donald Trump can keep his tax records shielded from investigators. The issues are weighty, whether they are discussed in a basement office over a cell phone or inside the Supreme Court’s historical Corinthian building. But lawyers who will be arguing before the court are still adjusting...In interviews, lawyers expressed overwhelming relief that the court was moving forward with arguments, even as some worried about kids and dogs being overheard on the phone. The most pressing concern, unanimously, was about how to gauge the justices’ reactions without body language cues. “The opportunity to see people, and how they are understanding or not understanding what you’re saying, is very important,” said Lawrence Lessig, the Harvard Law School professor and 2016 Democratic presidential candidate, who will represent Electoral College voters next month in a dispute over whether they may disregard their state’s popular vote. Lessig said he had already been doing moot courts, or rehearsals, over the videoconferencing platform Zoom. Now, he will “definitely” be doing moots by phone, he said.