Media Mentions

The Mercury and Air Toxics Standards (MATS), finalized in 2015, were designed to lower the amount of mercury and toxic air pollution Americans are exposed to from coal- and oil-fired power plants. But last week, the Trump administration relaxed those standards, rewriting a major aspect of the rules. With the vast majority of power plants already in compliance, why roll it back now? On this episode of our podcast, Trump on Earth, we hear first from someone who helped write the original rule. Joseph Goffman is a former senior counsel at EPA under the Obama administration. He now runs the Environmental and Energy Law Program at Harvard. And next, we hear from John Walke, senior attorney at the Natural Resources Defence Council. He explains why the rollback of the Mercury and Air Toxics Standards foreshadows what’s to come.

An article by Guha Krishnamurthi: While we will probably never know the final total of infections, Wisconsin officials reported on Tuesday that at least 19 people who attended this month’s election in that state have contracted COVID-19. Of course, the election didn’t have to go forward as it did. The Wisconsin Supreme Court, which had a sitting justice up for reelection, overturned Gov. Tony Evers’ effort to postpone the election to a time when it might be safer. Subsequently, in a 5–4 decision, the conservative majority of the United States Supreme Court overturned a lower court’s decision to give voters six additional days to submit absentee ballots, a common-sense measure in light of closed, crowded, and unsafe polling places. Because of the Supreme Court’s reckless, reason-defying decision, tens of thousands of voters had to brave the polls in person, at grave risk to their health and well-being, or surrender their franchise. This is nothing new—the Roberts court has time and again abdicated its obligation in protecting our elections. The Wisconsin ruling raises concerns about what would happen in November’s presidential election if a second wave of the coronavirus pandemic is raging and the Supreme Court’s conservatives again have the chance to force citizens to choose between their health and the franchise. Worse still is the prospect of a nightmare scenario where pandemic-related voter suppression causes the Electoral College outcome to be in doubt in spite of a clear and decisive popular vote defeat of President Donald Trump, who has repeatedly said that he considers the prospect of a Democratic victory illegitimate. What would the court’s conservatives do if they were asked to decide the outcome of such an election?

As the coronavirus has spread throughout America so has the outcry from frontline workers anxious about their livelihoods—and their lives. Since the onset of the pandemic, walkouts and protests have been staged by, among others, packers and shippers in Amazon warehouses, those on the line at a Smithfield pork processing plant, Instacart supermarket shoppers, cooks and cashiers at McDonald’s and other fast-food chains, trash collectors in Pittsburgh, and nurses around the country. Today, scholars from the Clean Slate for Worker Power project at Harvard Law School and the Roosevelt Institute will unveil a proposal that seeks to channel not only employees’ indignation, but also their insight, into a mechanism that can help steer the nation through the crisis... “The medical folks need to take care of stopping the virus, but policymakers need to get the structural problems with the economy under control,” says Sharon Block, the executive director of Harvard’s Labor and Worklife Program, which runs the Clean Slate project. “Maybe what we’re going through now will open up some imaginations.” The proposal, which is intended to serve as the basis for the drafting of federal legislation, has three parts.

An obscure agency housed within the Office of Management and Budget has the power of life and death over all Americans. You may not have heard of it, but you’re living under its dictates. Every manner in which government acts flows through this team of fewer than 50 economists, who quantify and qualify whether it’s worth it to avoid noxious fumes in the atmosphere, or to prevent harmful chemicals from being ingested, or even to stop prison rape. The agency is called the Office of Information and Regulatory Affairs (OIRA), and it’s been around in one form or another for half a century. It uses centralized planning and cost-benefit analysis to determine the efficacy of regulations across the federal government, and historically this has delayed or even blocked rules that could save lives...We have assembled a series of voices to discuss the future of OIRA and the regulatory state in the next Democratic administration. Tucker and Nayak expand on their reasoning for why they see a boosted OIRA as the best opportunity for strong progressive governance. Sharon Block of Harvard Law gives her opinion for why the coronavirus pandemic makes the concept of a bulked-up OIRA even more urgent.

The Supreme Court on Thursday rejected the Trump administration’s reading of a key part of the Clean Water Act as creating an “obvious loophole” in its enforcement, and gave a partial win to environmentalists in a case from Hawaii. The court ruled 6 to 3 that a wastewater treatment plant in Hawaii could not avoid provisions of the act, which regulates the release of pollutants into rivers, lakes and seas, by pumping the pollutants first into groundwater, from which they eventually reach the ocean. Justice Stephen G. Breyer’s compromise language said an Environmental Protection Agency permit is required when a discharge is “the functional equivalent” of a direct release into navigable waters...In the Hawaii case, environmental law experts agreed that the court’s decision will resonate. The test endorsed by the court’s majority is “one under which environmentalists can prevail in most every kind of case that environmentalists have brought under the Clean Water Act,” said Richard Lazarus, an environmental law expert at Harvard Law School.

Around the country, protesters have started pushing back against stay-at-home orders and advisories, calling for a reopening of normal business operations. On Saturday, hundreds of people reportedly assembled outside the New Hampshire statehouse to protest Gov. Sununu's handling of the coronavirus crisis. We'll hear from a protester and talk about the intersection between our civil liberties and public safety with WBUR's legal analyst and retired federal judge Nancy Gertner. Plus, we'll get perspective from Dr. Shira Doron, an infectious disease physician and hospital epidemiologist at Tufts Medical Center, who will explain why our leaders have turned to such extreme measures in combating the coronavirus.

As the number of COVID-19 cases continues to climb in the U.S., so do the risks facing health care workers on the frontlines of the pandemic. Across the country, we've been hearing about shortages of testing supplies, bodies stacking up in hospital morgues, and doctors and nurses still without the equipment they need to protect themselves and their patients. One of the reasons we know about all these things is because of the health care workers willing to speak up about what they’re seeing, whether it’s on social media or in the press. These health care workers are not just putting their lives at risk, but their jobs, too, as some hospitals have turned to disciplining, sometimes even firing, workers who speak publicly about their concerns. Some of you were concerned about sharing your thoughts — and voices — on our airwaves and texted us instead...For more on the risks facing health care workers who speak publicly, we turn to Glenn Cohen, professor at Harvard Law School and the faculty director of its bioethics center.

Business bankruptcy filings year-to-date are trending slightly higher compared with the same period last year, but industry experts warn the seemingly moderate escalation obscures the reality of a spike in fillings to come in the wake of the novel coronavirus pandemic...While the current filing numbers look benign on their face, there are several reasons filings have not already skyrocketed despite COVID-19’s shutdown of the U.S. economy since March. Harvard Law professor, Mark Roe, told Yahoo Finance that part of the delay is due to the fact that most companies, when hit with a shock, will exhaust cash sources first, and file for bankruptcy only when they have no other choice. Cash resources contributing to a delay could include the grants and loans made available to small and large businesses through the CARES Act, the $2.2 trillion coronavirus stimulus bill passed by Congress last month. “Even if a company isn't selling anything now, if it has some cash in the bank, or can draw on a bank line, or can somehow just push things along to kick the can down the road most companies will try to do that,” he said, adding that small businesses that have already entered bankruptcy are not eligible for the Act’s Payroll Protection Program. Roe estimated that if the economy continues on its current trend, a surge in bankruptcies should be expected around September or October. In addition, he said, historical correlations exist between increased claims for unemployment and business bankruptcy filings.

An article by Cass Sunstein: Debates about the idea of a wealth tax are suddenly sounding a lot less hypothetical. With massive expenditures related to the Covid-19 pandemic, the U.S. needs to find ways to raise revenue. And with the economic burdens of the calamity falling disproportionately on the less affluent, income inequality has only become more glaring. No wonder the call to target the richest has increasing appeal. But is a wealth tax constitutional? It’s a question legal scholars have long discussed. Unfortunately, the answer is elusive. For that reason alone, there is a good argument that progressives should focus on other options – such as imposing higher income taxes on the wealthy and closing the many loopholes that benefit them. Let’s start with the 16th Amendment to the Constitution, ratified in 1913, which provides: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” If Congress wants to raise rates on the wealthy, it’s perfectly entitled to do that. Notably, however, the 16th Amendment is limited to “taxes on incomes,” so it does not authorize wealth taxes.

A Connecticut town has become a testing lab for a new kind of drone-based surveillance program. The company behind it say it can pick out symptoms from the air, raising questions about a world where we could be monitored without know it. NBC technology correspondent Jake Ward reports for TODAY as the Search for Solutions series continues. Glenn Cohen weighs in.

An article by Jeannie Suk Gersen: During my first year teaching at Harvard Law School, I fell flat on my face. In addition to prepping for class like a maniac, I spent an inordinate amount of time cultivating a professional aura. I always dressed up for class, did my hair, and put on makeup. One day, I found myself late getting to class. In my pencil skirt and heels, I entered the amphitheatre-style classroom from the back. My fifty students were already seated and ready. Rushing down the gauntlet of steps toward the podium, carrying my casebook, teaching notes, seating chart, and a hot tea, I felt my ankle buckle. Everything flew out of my hands and I face-planted. The univocal gasp of my students still haunts my nightmares. I thought, in that moment, that my teaching career was over, but I got up, walked to the podium, and began teaching the class, because I didn’t know what else to do. I was immediately more relaxed and comfortable than I’d ever been in the classroom—and so, it seemed, were my students, who loosened up immensely...Teaching over Zoom has revealed the role that spatial distance plays in education in the first place. The geography of a large classroom, with the professor at the front, automatically communicates the hierarchy that separates teacher and students. That distance is visually erased in a Zoom class, where there’s no podium, or front or back of the room. The face of the professor appears onscreen in the same way as the faces of students when they speak. The closeup view brings everyone in close.

Hanging on the wall of his Harvard Law School office, Professor Richard Lazarus has a framed copy of the 2007 Massachusetts v. EPA ruling signed by Justice John Paul Stevens. It is a symbol of the significance of the case for Lazarus, who has written the book “The Rule of Five: Making Climate Change History at the Supreme Court,” which tells the inside story of the landmark environmental case. The Gazette sat down with Lazarus, a Supreme Court advocate and the Howard and Katherine Aibel Professor of Law, before the coronavirus quarantine to talk about his book, his passion for environmental law, and the legal strategy behind the environmentalists’ victory.

An article by Robert Greenwald and Will Dobbs-Allsopp '20: Even in the midst of the worst domestic crisis in over a century, the White House and Republican state officials still want the U.S. Supreme Court to invalidate the Affordable Care Act in a case set for review later this year. It’s a baffling decision given the circumstances: amid escalating health-care needs, increased strain on our health systems, rising rates of uninsured, and an impending recession, the ACA offers policymakers critical tools that can help steer the nation through the Covid-19 pandemic. Because many Americans receive health insurance through their employer—itself a vestige of an earlier crisis—a pink slip frequently also entails a loss of health insurance coverage. In recent weeks, the Department of Labor has reported record-shattering unemployment insurance claims, more than 22 million to date. One analysis predicts that the number of employees losing health coverage will grow to between 12 million and 35 million by the crisis’s end.”

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.