Media Mentions

Amid all the well-justified worry during this troubled election season about vote suppression, the most direct threat to having every vote count has been hiding in plain sight: “faithless electors” who might cast their Electoral College votes according to their own preferences rather than for the choice of their states’ voters. Eight such votes were cast four years ago, including by electors in Colorado and Washington, despite the fact that those states and most others required would-be electors to pledge to vote according to the popular will...The argument from practice — how the Constitution has actually been understood and deployed, a process some scholars refer to as constitutional construction — holds obvious appeal for the court’s more liberal members. It gets a vigorous pushback from Lawrence Lessig, a Harvard Law School professor who is representing the rogue electors from the two states. Conceding that “our current political culture views the power of presidential electors differently from how the Framers did,” Professor Lessig warns the court that “the expectations of the public have not amended the Constitution.” In the aftermath of the 2016 election, Professor Lessig, who actually embarked that year on a brief presidential campaign of his own, was the most prominent of several academics who declared that Republican electors had a duty to deny Donald Trump the presidency. He publicly offered to provide “strictly confidential legal support to any elector who wishes to vote their conscience.” He will argue on behalf of the rogue Washington electors. His brief adds: “For the states to prevail in these cases, this court must conclude that the Constitution can be amended by custom.”

Joshua Wong’s black iPhone sat in a room on the 22nd floor of the Hong Kong Police Headquarters in the heart of the city’s business district, where over a total of 21 hours between late September and early November, its data were examined by officers, and hundreds of chat messages exported. The 23-year-old pro-democracy activist only learned months later that his locked phone had been cracked into when authorities presented him with a search warrant in February. His phone had been confiscated following his arrest the previous summer on charges of inciting others to take part in an unlawful assembly at the height of Hong Kong’s mass protests against a controversial extradition law...Some legal experts see the vague Hong Kong police warrants as legally unsound at best, and an abuse of justice and the law at worst. “It’s obvious that in jurisdictions that I know—the US, Switzerland, Germany, or under the Europe Convention on Human Rights—that this wouldn’t hold water,” said Nathan Kaiser, a lawyer and a fellow at the Berkman Klein Center for Internet and Society at Harvard University. Kaiser explained that there are typically two parties involved in a warrant—the searching party, and the party being searched. “But here, the search warrant is for the police headquarters. That doesn’t even make sense. They’re not a party,” he said. He compared the scenario to a rigged game of ping-pong: “The same party is playing both sides of the ping-pong table, and the party whose phone is at stake is not even at the ping-pong table.”

Technology companies are offering a new tool to countries and states trying to reopen their economies amid the coronavirus pandemic: digital contact tracing applications. Touted as a way to track cases and isolate carriers quickly through the use of smartphones people already have in their pockets, the technological fix has gained significant attention from governments and private companies alike. But it's not clear how effective the alternative to traditional one-on-one interview-based contact tracing would be. And it also raises other issues dealing with surveillance. Apple and Google have been two of the leaders developing digital contact tracing and jointly released API this week for public health officials to build applications with. The unprecedented collaboration from the Silicon Valley giants allows applications to use bluetooth emissions to create a log of the people the phone’s user has come into proximity with. This would give officials a list of people that an individual infected by COVID-19, the disease caused by the coronavirus, may have passed it to. There are a few potential roadblocks with the technology...Bruce Schneier, a fellow at the Berkman Klein Center for Internet and Society at Harvard University, told The Hill that issues with apps could negatively color users’ perceptions of contact tracing more broadly. “My fear is that an app people lose trust in could cause more harm than good,” he said. “Some things in life an app can’t solve.”

After three years in office, the Trump administration has dismantled most of the major climate and environmental policies the president promised to undo. Calling the rules unnecessary and burdensome to the fossil fuel industry and other businesses, his administration has weakened Obama-era limits on planet-warming carbon dioxide emissions from power plants and from cars and trucks, and rolled back many more rules governing clean air, water and toxic chemicals. Several major reversals have been finalized in recent weeks as the country has struggled to contain the spread of the new coronavirus...With elections looming, the administration has sought to wrap up some of its biggest regulatory priorities quickly, said Hana V. Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. Further delays could leave the new rules vulnerable to reversal under the Congressional Review Act if Democrats are able to retake Congress and the White House in November, she said... “Over the past three years, we have fulfilled President Trump’s promises to provide certainty for states, tribes, and local governments,” a spokeswoman for the E.P.A. said in a statement to The Times, adding that the agency was “delivering on President Trump’s commitment to return the agency to its core mission: Providing cleaner air, water and land to the American people.” But environmental and legal groups said the rollbacks have not served that mission. Ms. Vizcarra, who has tracked environmental rollbacks for Harvard since 2018, said the agency under Mr. Trump has often limited its own power to regulate environmental harm, especially when it comes to climate change.

Today, Julie Owono, a digital rights advocate and Executive Director of Internet Sans Frontières from Cameroon, Maina Kiai, a human rights activist and Director of Human Rights Watch’s Global Alliances and Partnerships program from Kenya, and Afia Asantewaa Asare-Kyei, a human rights lawyer and Program Manager at the Open Society Initiative for West Africa from Senegal, Ghana and South Africa were appointed as Board Members to the newly created Oversight Board. The Oversight Board will review certain content decisions by Facebook and Instagram and make binding decisions based on respect for freedom of expression and human rights. The Oversight Board will tackle increasingly complex and contentious debates about what types of content should and should not be permitted on Facebook and Instagram and who should decide. The Board will prioritize cases that potentially impact many users, are of critical importance to public discourse, or raise questions about Facebook’s policies. Decisions made by the Board must be implemented by Facebook, as long as they do not violate the law. Oversight Board Members are independent from the company, funded by an independent trust and cannot be removed by Facebook based on their decisions. “Preserving the free flow of information is a major issue in our contemporary societies,” said Julie Owono. “I come from Cameroon, I grew up in Russia, studied in France, I am currently in the USA, this journey has reinforced my conviction that without freedom, without the right to express oneself, to receive or impart information, there can’t be true and profound progress. It is an honor for me to serve this cause, within the Oversight Board.”

U.S courts won’t block governors’ stay-at-home-orders. At least not yet. With some lockdowns about to begin their third full month, a growing number of business owners, church-goers, beach enthusiasts and politicians have filed lawsuits claiming the restrictions violate their rights. But so far, judges are deferring to the government, saying it’s for elected officials to decide what’s needed to fight the spread of Covid-19...The case that’s most influential for judges is Jacobson v. Massachusetts, a 1905 U.S. Supreme Court decision involving mandatory smallpox vaccinations in Massachusetts... “Unless there’s a question of discriminating against a constitutional right, as in the religion cases, Jacobson should be the beginning and almost the end,” said Mark Tushnet, a professor at Harvard Law School. “A higher standard comes into play only if the activity is somehow bound up with a constitutional right -- yes for religious services, no for beauty parlors, etc.” The Jacobson precedent isn’t just being used to rebuff claims of lost personal freedoms. The federal court of appeals in New Orleans last month cited it in a decision to reinstate Texas’s temporary ban on abortions during the pandemic.

An article by Jeannie Suk Gersen: A truth that burst into public view with #MeToo in 2017 was that sexual exploitation in its many forms has been ubiquitous and experienced largely by women. So anyone following the story of #MeToo could hardly find it shocking that, after a promising primary season with a record number of excellent female candidates, the first Presidential election since the movement’s rise has come down to a race between two men who have both been accused of sexual assault. Tara Reade has accused Joe Biden of sexually assaulting her twenty-seven years ago, and several women have accused him of unwanted touching. More than a dozen women have accused Donald Trump of sexual assault and misconduct, and he has bragged on tape about grabbing women’s genitals. It is unlikely that the Democratic Party will abandon their only candidate who remains in the race, and who leads Trump in polls. So many liberals, who are justifiably desperate to turn the page on the horrors of Trump’s Presidency, are grasping at the world of difference between Trump and Biden—and viewing Reade’s sexual-assault allegation more skeptically than #MeToo has allowed in recent times. This moment may prove to be a pivotal chapter of #MeToo, which marks its more mature reckoning with its deeper goals. And, in fact, there is a no more fitting person to embody that development than Biden, whose long career has repeatedly positioned him at the levers of power in the government’s responses to sexual violence.

An article by Ben Iverson and Mark Roe: Neiman Marcus and J.C. Penney, two of America’s retailing giants, recently failed to pay interest on their debt. We should expect one or both firms to file for bankruptcy soon, heralding a surge of US business failures caused by the COVID-19 pandemic. And with most American households currently lacking the cash to pay expenses for three months, many families and individuals will declare bankruptcy, too. Before long, the United States could face a trifecta of millions of insolvent consumers, thousands of small-business failures, and many bankruptcies of large public firms, with whole industries going broke at the same time. Bankruptcy filings in the US have historically peaked several months after a surge in unemployment. And US unemployment is now rising at an unprecedented rate, with more than 30 million claims filed in the last six weeks. If historical patterns hold in the coming months, the bankruptcy surge could be the biggest that the US court system has ever experienced. Bankruptcy works well enough and quickly enough in normal times, particularly for restructuring large public firms. But it cannot work well, and the economy will suffer, if the system is overloaded and businesses become stuck in legal proceedings.

An article by Samantha Fry '20, Masha Simonova '20, Jacques Singer-Emery '20, and Benjamin Della Rocca: The coronavirus has spread to all 50 states, the District of Columbia and multiple territories, with case totals still increasing rapidly in the United States. Governors across each of the states and territories have been responsible for much of the response, enacting restrictions on nonessential businesses and enforcing stay-at-home orders. On Lawfare, several of us previously reviewed the U.S. state and territory laws authorizing quarantine and isolation. Here, we review the other emergency authorities that state and territory executive authorities possess to address the pandemic. We have prioritized states with the most cases and will continue updating by alphabetical order. One authority across the 50 states and most inhabited territories is the Emergency Management Assistance Compact (EMAC). It is an “all hazards - all disciplines mutual aid compact” ratified by Congress. All 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands have enacted legislation to become EMAC members, which permits them to assist in emergency response efforts in other states. EMAC members can send personnel, equipment and commodities to other states, and transfer services and conduct virtual missions.

An article by Noah Feldman: Attorney General William Barr has made good on his threat to take legal action against states that restrict religious services during the coronavirus pandemic. The Department of Justice has filed a brief in federal district court in Virginia in support of a church claiming the right to hold socially distanced worship. The lawsuit should not be allowed to be litigated to completion. The governor of Virginia should make a strategic decision to tweak the state’s rules to make it go away. Analyzed precisely, existing First Amendment doctrine should not enable the church to get an exemption from Virginia law. Yet, because the issues here are tricky, and it’s easy to feel sympathy with the worshippers, a judge could make new law at the invitation of the Justice Department and find in favor of the church. That on its own is a good reason for the state to change its rules. The facts of the case create some natural compassion for the church, Lighthouse Fellowship Church. It’s a congregation that ministers especially to people with substance abuse problems; for them, attending church is almost certainly a meaningful part of preserving their mental and physical wellbeing. And although the pastor knew that he was breaking state guidelines when he invited his flock into the church, he restricted the numbers drastically, imposed social distancing, and made sure the church was carefully disinfected before worship.

When Kelly Loeffler accepted an appointment to be a United States senator from Georgia, she left behind a high-paying job as a senior executive at the parent company of the New York Stock Exchange. But on her way to Washington, her old employer gave her a lucrative parting gift. Ms. Loeffler, who was appointed to the Senate in December and is now in a competitive race to hold her seat, appears to have received stock and other awards worth more than $9 million from the company, Intercontinental Exchange, according to a review of securities filings by The New York Times, Ms. Loeffler’s financial disclosure form and interviews with compensation and accounting experts. That was on top of her 2019 salary and bonus of about $3.5 million...The generous dispensations are not illegal or against any congressional rule, but they are certain to feed questions about how the Senate’s newest and wealthiest member has handled her finances, an issue that has emerged as a potential risk in her campaign...Corporate governance experts generally frown upon companies handing such parting gifts to senior executives because they do not serve a clear business purpose and, in cases where the executive is taking a government job, they risk creating the appearance that the company is trying to curry political favor. “From a corporate governance perspective, large payments to executives are appropriate only if they serve an adequate corporate purpose,” said Lucian A. Bebchuk, the director of the Program on Corporate Governance at Harvard Law School. He added that shareholders in Intercontinental Exchange “should not view this arrangement to have been on the up-and-up.”

An article by Heidi Gardner and Dave Harvey: General counsel are under greater pressure than ever to add value to their entity by integrating their legal and industry expertise—deeply and early—into their organization’s strategic business decision-making. GCs’ access to and potential influence on the board is at an all-time high.  Meanwhile, they are severely time constrained and facing an overload of information—mainly, what they consider to be generic spam from their outside lawyers. How can law firms cut through the noise to offer truly critical insights that help clients anticipate and address the highest-value problems? In-house counsel need advice from outside attorneys who generally have a broader view of the legal and business issues affecting particular industries—and they are rightfully demanding that the insights are tailored to their own, specific business needs. Now is a perfect time to bolster your firm’s sector leadership initiative so that client teams can provide customized expertise that help GCs navigate the business through this global health and economic crisis. Doing so will distinguish your firm, build client loyalty by helping turn the GC into a hero, and seed success for the recovery. That said, this is a hard time to generate buy-in for an initiative, especially if your firm hadn’t already committed pre-crisis to building a robust sector-focused client approach.

The coronavirus pandemic is lending the battle over Uber and Lyft's classification of its drivers fresh urgency. California is suing the companies for allegedly breaking a landmark state law that went into effect earlier this year that would reclassify many gig workers as employees, my colleague Faiz Siddiqui reports. Attorney General Xavier Becerra, who is among the California attorneys bringing the suit, said the ride-hail companies are preventing drivers from enjoying many worker protections and accessing safety net programs by continuing to classify them as independent contractors...And Uber and Lyft drivers do not have mandated sick leave because of their work classification. The  companies have taken steps to expand sick leave during the pandemic, but drivers have raised concerns that it's difficult to access.  “What it's done is laid bare more the consequences of allowing companies to opt out of the social safety net,” Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told me. “For a lot of workers, those consequences have been very apparent for a while. What's happening right now is the public is being forced to see this in a different way when there is such a groundswell of workers who are dealing with those consequences all at the same time.”

Governments and health agencies around the world are considering issuing “immunity passports” to help restart their economies — documents certifying that the holders are immune to COVID-19 because they’ve already had it. But global health authorities warn that such documents would be unreliable and potentially dangerous...Meanwhile, the World Health Organization says there’s no proof that being infected once with the coronavirus makes a person immune. And critics warn that granting additional freedoms to people who are theoretically immune would risk creating a black market for certification – and even create an incentive for deliberate infection...Harvard University bioethicist Glenn Cohen said he worries that some people might be tempted to intentionally expose themselves to the virus in the hope they can battle through and then get back to work. And there is concern that some people could resort to illegal tactics to get an immunity badge, creating a black market. “I'm really worried about the diverting of resources which are finite to cracking down on the black market rather than have these resources aimed at the interventions that are most efficacious in curbing infection and helping people survive,” Cohen said.

Layla Keith had just gotten off a flight from Singapore when she and her fellow passengers were met at the gate by Hong Kong government officials and ushered onto buses that shuttled them to a nearby convention center. There, they were handed forms to fill out and given small containers to spit into...Those who tested positive for the coronavirus were sent to a hospital for treatment; others were allowed to go. But the data from their saliva stayed behind in a government database. In the global battle to curb Covid-19, governments have collected troves of data from testing and contact-tracing apps to try to find the disease and stop its spread. Even as many are willing to surrender personal information amid the crisis, privacy experts worry about who controls the data and what will happen to it after the crisis ends...Hong Kong isn’t the only place where personal data and politics are interwoven. At least one other country, Vietnam, currently greets travelers with swab tests on arrival. Vietnamese officials said that the records of every test result are retained but that it is against the law to reveal anyone’s name... “If nothing else, it is important for Hong Kong to be transparent about the details of the program so travelers can use that information in determining whether they want to travel to Hong Kong or not,” said I. Glenn Cohen, a Harvard University law professor and expert on the intersection of bioethics and the law.

An article by Cass Sunstein: President Donald Trump is a liar — hardly the first but certainly the worst among U.S. presidents. By one count, he has made about 18,000 false or misleading claims, an unmistakable sign of his willingness to deceive. His supporters do not seem especially bothered. They focus on what Trump does, not on whether he tells the truth. Which raises a question: Is presidential lying really so bad? Actually, it’s worse than bad, and for reasons much broader than the dangerous confusion it has sown during the coronavirus pandemic. To see why, let us consult two moral traditions that have explored what's wrong with lying, and what makes it so corrosive. The first is rooted in the work of Immanuel Kant, the 18th-century German philosopher who emphasized the importance of treating people as ends rather than mere means. The second comes from Jeremy Bentham, Kant’s younger British contemporary and the founder of utilitarianism.

A podcast by Noah Feldman: Akiko Iwasaki, a professor of immunobiology at Yale University School of Medicine, explains what types of coronavirus vaccines are currently being researched and evaluates their chances of success.

An article by Oliver Roberts '21: The Trump administration has granted a 60-day reprieve for federal student loan payments and temporarily dropped the student loan interest rate to zero. While these measures provide temporary relief, they will do nothing to combat historically high tuition costs or end the cycle of student borrowing and indebtedness. With prolonged university closures, lawsuits for tuition refunds, and economic uncertainty ahead, now is the time to reform higher education. But in our hyperpartisan political environment, that is easier said than done. If we truly want to improve higher education, we must pursue a bipartisan approach that lowers tuition costs, reduces student loan debt, expands college opportunities for high schoolers, and comes without raising additional taxes. Currently, there is only one reform path that fulfills these goals: Degree-in-Three Reform. Degree-in-Three Reform calls for transitioning the college system from the traditional four-year degree toward a three-year degree model. By eliminating one year of college, tuition rates drop by 25%, and students pay less out-of-pocket, have fewer loans and interest to pay back, and can more easily financially-access college. Further, by removing a year, students could obtain employment and earn a salary one year earlier, which improves their immediate economic positioning.

Just two weeks after ruling that criminal juries in America were always meant to be unanimous, the U.S. Supreme Court agreed on Monday to swiftly decide whether its decision applies retroactively to thousands of inmates in Louisiana and Oregon who are serving time from earlier convictions by split juries. The decision suggested to prosecutors and some defense advocates that the high court may be trying to quickly put the retroactivity question to bed, probably in favor of keeping those older convictions intact...Defense advocates conceded that the court has made an unusual decision to tackle retroactivity upfront, choosing from several petitions that were pending before the high court while the Ramos case played out.  “Typically the (Supreme Court) allows such questions to percolate through the (state) courts because that approach allows the legal issues to be fleshed out fully before it arrives at the Supreme Court,” said Thomas Frampton, a Harvard Law School instructor and Louisiana defense attorney who has studied split juries in the state. “Here my concern is that the process seems to be short-circuited.”

The U.S. Supreme Court seemed to struggle Monday with rules for trademarking generic names that are combined with the .com phrase. Many justices seemed to agree with an attorney for Booking.com that a 132-year-old Supreme Court precedent probably doesn’t control the case. But they also sounded wary of granting an online monopoly over entire categories of goods and services, and that it could lead to a flood of litigation over similar sounding dot.com names...A longstanding rule of trademarks is that generic names cannot be registered. The PTO argues that adding .com isn’t enough to make a generic mark descriptive and potentially eligible for registration. The agency is invoking an 1888 Supreme Court ruling, Goodyear’s India Rubber Glove Mfg. v. Goodyear Rubber, that adopted a similar rule for the addition of “Company” or “Inc.” to a name. More recently, the U.S. Court of Appeals for the Federal Circuit has upheld the PTO’s refusal to register Hotels.com and Mattress.com, and the U.S. Court of Appeals for the Ninth Circuit has found AOL’s Advertising.com generic. The agency is getting amicus support from the Electronic Frontier Foundation and a group of intellectual property scholars led by Harvard’s Rebecca Tushnet, whose brief the justices brought up repeatedly Monday. The scholars caution against giving generic mark holders too big of a stick to ward off competitors and suggest that .coms can use unfair competition law to solve the problems they’ve identified.

An article by Nancy Gertner: Even with the coronavirus spreading in prisons, even though incarceration could be fatal and the crime rate during the pandemic has cratered, some officials will not listen to public health experts. In one federal courtroom, a defense lawyer argued for a client’s release before trial because he was an insulin-dependent diabetic, which, the Centers for Disease Control and Prevention says, increased his risk of infection; the judge refused, saying, as the lawyer told me, the CDC studies must be taken with a “grain of salt,” since it is a “novel” virus. The lawyer persisted: Given the fatality rate of COVID-19, the court should err on the side of caution; none of the defendant’s charges warranted death. To this judge, “erring on the side of caution” meant prison; release denied. While there may have been reasons for the decision, the judge’s comment has troubling echoes of President Trump’s disparagement of expertise. Worse, it shows a stunning lack of empathy. In a second federal courtroom, another judge refused pretrial release for the opposite reason. Defense arguments about COVID-19 were “systemic,” and the defendant had not shown he was especially vulnerable. Of course COVID-19 arguments are systemic; they are about a risk so severe that it has upended this country. As Columbia University scholars noted in an April 21 letter to Governor Andrew Cuomo of New York, with “medically vulnerable and forcibly proximate” prisoners, those risks require that the governor systematically release prisoners to ease pressures on space and staff.