Media Mentions

Most Americans would like to abolish the electoral college, the idiosyncratic institution that picks presidents six weeks after election day. Twice this century, candidates who received more votes in the nationwide tally watched their rivals move into the White House the next January. But in 2016, when Hillary Clinton, the popular-vote winner, was vanquished by Donald Trump, another electoral-college flashpoint came to light. The controversy over whether America’s 538 electors are free to deviate from their pledges comes to the quarantined Supreme Court live by telephone on May 13th. So-called “faithless” electors are rare, but nothing new...Activists seeking to subvert Mr Trump’s victory in 2016 spurred seven electors to break their pledges—short of the 37 needed, but more than in any previous presidential election. Some defectors ran into legal trouble. Peter Chiafalo from Washington was fined $1,000 when he selected Colin Powell rather than Mrs Clinton in an attempt to throw the election to Congress...This tension between principle and practicality makes Chiafalo v Washington compelling. Laurence Tribe of Harvard Law School, wonders if conservative justices—who claim to hew to the constitution’s original meaning—will uphold the founders’ understanding of the electoral college, even if it means empowering electors “in whose judgment the voters this November 3rd will not in fact be placing any trust.”

Rocio Lopez paused for a second before heading into Dallas ISD’s Young Women’s STEAM Academy in Balch Springs. A handful of parents had lined up on April 24, crammed in a tight vestibule outside the school’s main office, waiting to pick up a mobile hotspot — a device that can connect computers and tablets to the internet through a cellular network...Schools in Dallas and the rest of the country are closed for the year. Learning, such as it is, now happens online. But logging online isn’t a given for many families in Dallas, where approximately 1 of every 3 people lack fixed access to the internet, Lopez included...These differences between digital haves and have-nots worry experts and educators, who see the COVID-19 crisis as a potential accelerant to existing learning and opportunity gaps. In truth, said Susan Crawford, a Harvard University law professor, author and WIRED columnist who focuses on tech and telecom policy, the inequities in broadband access were already causing problems. “Three-quarters of American teachers assume that their students have access to the internet, and hand out homework accordingly,” said Crawford, who served as former President Barack Obama’s special assistant for science, technology and innovation policy during his first year in office. “Families were already scrambling to cope with this gap in internet access, and the pandemic has shone a bright light on the terrible state of internet access in America. We have all these poor kids in America, all these kids who deserve an opportunity, not being able to exist above a subsistence level. And from the beginning of the Republic, access to education has been a central tenet to the American experiment. And here we are denying that access to potentially half of American schoolchildren.”

Scarlet Fu and Romaine Bostick bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street. Today's show tackles the impact of the coronavirus on real estate, movie theaters and the markets Guests Today: Frances Donald of Manulife Asset Management, Mark Tushnet of Harvard Law School, Benno Dorer of Clorox, Diane Ramirez of Halstead Real Estate, Tim League of Alamo Drafthouse Cinema.

An article by Noah Feldman: It’s astonishing that Attorney General William Barr’s Department of Justice has “withdrawn” criminal charges against Michael Flynn, the former national security advisor, after Flynn had already pled guilty to two counts of lying to federal investigators. But after you get past the initial shock of Barr once again making partisan criminal prosecution decisions while insisting that he’s doing the opposite, a larger question remains: Shouldn’t there be some kind of check on the executive branch’s capacity to make a guilty plea go away? The answer is yes, for extreme cases like this one. And on paper, there is. It’s not only the Department of Justice’s decision to dismiss the charges against Flynn. The federal judge in charge of the case must agree, too. Ordinarily, that’s a pretty easy decision for a judge. But where a defendant has already admitted to the crime; the executive branch is dismissing charges against a former administration official; and the president encouraged the former FBI director to make the same case go away, that may be the one circumstance where the judge should take a close look at the question. And maybe, just maybe, it would be appropriate for the court to refuse the government’s dismissal.

Most Americans would like to abolish the electoral college, the idiosyncratic institution that picks presidents six weeks after election day. Twice this century, candidates who received more votes in the nationwide tally watched their rivals move into the White House the next January. But in 2016, when Hillary Clinton, the popular-vote winner, was vanquished by Donald Trump, another electoral-college flashpoint came to light. The controversy over whether America’s 538 electors are free to deviate from their pledges comes to the quarantined Supreme Court live by telephone on May 13th. So-called “faithless” electors are rare, but nothing new...The plaintiffs have ample support from the founding era. Alex Keyssar of Harvard’s Kennedy School, the author of a forthcoming book on the electoral college, says there is no “serious doubt” that the framers “envisioned electors as free agents, actors who would deliberate and could decide whom to vote for.” Lawrence Lessig, a Harvard law professor arguing the electors’ case, notes that Samuel Johnson defined electors as people who have “a vote in the choice of any officer”—quite distinct from “agents” or “delegates” who merely “act on behalf of others”. In the words of Alexander Hamilton in the Federalist Papers No. 68, electors would be chosen for their “discernment” and would be “most capable of analysing the qualities” of a potential president.

EPA is trying to use a 19th-century statute giving department heads the right to manage personnel and internal record keeping to contain the science it uses when drafting regulations, including those on greenhouse gases. The March supplementary proposal for a rule EPA bills as improving transparency of the science and modeling that underpin important agency work points to an obscure "housekeeping statute" enacted in 1874. It has roots in laws enacted under President Washington when early federal agencies were founded. The proposed rule in question, known as "Strengthening Transparency in Regulatory Science," would banish long-used scientific studies from future rulemaking processes if they rely on data that isn't made public...But environmental attorneys say the proposed rule, by barring EPA from using the latest science in setting rules or maintaining models, would interfere with the agency's statutory responsibilities under the Clean Air Act, the Clean Water Act and other substantive statutes. "It certainly hasn't been used independently as a basis for promulgating a rule that will effectively change the way the agency fulfills its statutory mandate," said Laura Bloomer, a legal fellow at Harvard Law School's Environmental and Energy Law Program. "I do think that this is just a different type of rule."

The IRS' collection due process program, which grants taxpayers a hearing before having to pay their debts, was already in need of reforms before the COVID-19 outbreak, and the pandemic is likely to delay program improvements and increase its backlog. Use of the program remains low, and taxpayers too often don't know about their rights to request a CDP hearing, according to directors of low-income taxpayer clinics. Some directors have worked with Internal Revenue Service officials on improving the process, but that appears to be on hold for now...An initiative known as the CDP Summit — a collaboration among private tax practitioners, law professors, directors of low-income taxpayer clinics and the IRS aimed at putting in place needed reforms to the CDP program — was launched as a result of a panel discussion at the American Bar Association Section of Taxation's 2019 May meeting on issues with the program...T. Keith Fogg, the director of the federal tax clinic at Harvard Law School's Legal Services Center, who is also involved with the summit, said he doesn't know when it will resume. For the time being, the pandemic has reduced some of the pressures on the CDP program, since the IRS has temporarily paused lien and levy enforcements through July 15 and will be slow to restart that work, Fogg said. The summit's work so far has led to significant improvements in CDP notices, Fogg said, noting the newest version of the notice provides more information on the opportunity for a CDP hearing. However, more needs to be done to ensure that taxpayers understand they have to act to preserve their rights to a hearing under the CDP program, he said.

Kirkland + Ellis, Sidley Austin, Baker + Hostetler and other law firms announced this week that they are dramatically shortening their traditional summer associate programs—which are already being held virtually given the ongoing COVID-19 pandemic. Kirkland’s program will last two weeks with a June 15 start date, while Sidley’s summer associate programs will be at least four weeks long, the firm said Thursday. Sidley’s program in New York will start July 6 and end July 31. Both firms are paying their associates what they were set to receive when the programs were running at full length. Kirkland is extending job offers to associates who graduate from law school in 2021, while associates who graduate in 2022 will be able to participate in next year’s program...With in-person programs already a thing of the past for most firms in 2020, is it even worth the trouble to invite summer associates for such short periods? Scott Westfahl, a professor of practice and the director of Harvard Law School’s executive education program, said the answer is yes. A two-week virtual program is better than no program at all, he said. Westfahl said a short visit can be useful, noting that law firms in the past have brought past summer associates back for two-week programs designed to reconnect with partners. “If they are thoughtful about it, [the program] can provide a meaningful experience to build their networks among each other and among the lawyers at the firm,” Westfahl said of the firms’ efforts.

For this week's episode of our Arbiters of Truth series on disinformation, Evelyn Douek and Alina Polyakova talked to Aric Toler of Bellingcat, a collective that has quickly become the gold-standard for open source and social media investigations. Aric recently published a blog post in response to a New York Times article on Russian influence campaigns—one retweeted by former President Barak Obama no less—that Aric called “How Not to Report on Disinformation.” Evelyn and Alina asked him about the article and what exactly Aric thought was wrong with it as a case study in the challenges for reporters writing about disinformation operations. When are reporters helping to uncover threats to democracy, and when are they giving oxygen to fringe actors?

The U.S. Supreme Court threw out a pair of criminal convictions against associates of former Gov. Chris Christie, R-N.J., ruling that they had not violated federal law even though evidence showed "wrongdoing." "The evidence the jury heard no doubt shows wrongdoing — deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct," Justice Elena Kagan, a liberal jurist appointed by former President Barack Obama, wrote on behalf of the court's unanimous decision in favor of Bridget Anne Kelly and Bill Baroni. Kelly was Christie's deputy chief of staff, while Baroni was a former deputy executive director of the Port Authority of New York and New Jersey at the time when they were accused of helping Christie engineer traffic problems on the world's busiest bridge. The pair allegedly sought retribution against Fort Lee Mayor Mark Sokolich, a Democrat who did not endorse Christie's re-election campaign. They were convicted of wire fraud and misusing Port Authority resources in 2016 before the Supreme Court ruled Thursday that their actions did not meet the federal definition of fraud...Harvard Law School professor Laurence Tribe agreed with the opinion, telling Salon by email that "I found Justice Kagan's reasoning compelling as a matter of statutory interpretation. It left me persuaded that Congress had not criminalized the kind of corruption demonstrated in this case — but that it ought to do so."

We take a moment in the midst of a pandemic, which, because of the negligence of this administration has killed more than 75,000 Americans and sent the United States into a record-setting recession, to note another assault on the rule of law by the most corrupt president and attorney general in history... “What Barr has done on Trump’s behalf with respect to Flynn, who entered a fully justified guilty plea that the district court duly approved, is blatantly and purely partisan,” constitutional scholar Laurence Tribe tells me. “I know of no similarly corrupt action in the Justice Department’s entire history. This latest outrage, which closes the circle that began with Trump’s attempt to get [then-FBI Director] James Comey to go easy on Flynn and with Trump’s firing of Comey for his failure to do so, just goes to show that a president with a sufficiently unprincipled and compliant Attorney General needn’t even bother to abuse his pardon power to bail out his loyal henchmen.” Tribe further observes, “By sparing Trump the need to invoke his pardon power and at least having to be held politically accountable, Barr gave the president cover. Hopefully the voters will see through the ruse come November.”

President Donald Trump, Treasury Secretary Steven Mnuchin — and now the IRS — are urging people who received coronavirus relief payments for a deceased taxpayer to return the money to the government. But legal experts say there is no law requiring people do that. Some of the more than 130 million economic impact payments that went out to taxpayers as part of the $2.2 trillion economic relief package were sent to dead people. That happened mainly because of a lag in reporting data on who is deceased. It’s happened with past federal stimulus payments, and tax experts say is almost inevitable. However, this is the first time the IRS has asked for the money back from the deceased taxpayers' survivors...Olson and others, including Keith Fogg, a clinical professor of law at Harvard, don't expect the government will go to extreme measures to claw back the money. The government would be hard pressed to prove survivors weren't entitled to the payments in the first place as the law is written... “If you feel bad, send it back. If you don’t feel bad about it I wouldn’t say you have to send it back," Fogg said. “You are not breaking the law as I see it."

An article by Noah Feldman: In the midst of the constant up-and-down of coronavirus news, both from science and the markets, it’s easy to lose sight of the scariest scenario of them all: the one where there’s no magic bullet. In this entirely plausible situation, there would be no effective Covid-19 vaccine or transformative therapy; the combination of testing and contact tracing wouldn’t successfully suppress the outbreak; and herd immunity would come, if at all, only after millions of deaths around the world. Even raising this possibility is a big downer. But the fact that an outcome is terrible doesn’t make it impossible. Since the end of February, I’ve conducted some 20 interviews with epidemiologists and virologists like Marc Lipsitch, Angela Rasmussen, and Carl Bergstrom; economists like Paul Romer, Stefanie Stantcheva and Larry Summers; and leaders at top hospitals and experts on government agencies whose names you may not know, but whose life’s work is preparing for moments like this one. Despite getting expert answers to dozens of my questions, the one question I haven’t been able to get an answer for is this: Who, exactly, is planning for the nightmare scenario in which we never get a vaccine or a breakthrough treatment?

A podcast by Noah Feldman: Nader Mousavizadeh, who formerly served in the Executive Office of UN Secretary-General Kofi Annan, explains why international organizations like the WHO and the UN have not been able to effectively coordinate a global response to the pandemic. Plus, is it a good thing or a bad thing that Bill Gates had stepped in to fill that void?

Labor Secretary Eugene Scalia’s spot aboard Air Force One for a trip to a Honeywell International Inc. plant in Arizona on Tuesday was the latest sign the low-profile Cabinet member with a familiar last name is primed for an increasingly public role in the Trump administration’s efforts to recover the economy from the coronavirus pandemic. Scalia’s Labor Department oversees many of the paid leave, workplace safety, and training programs the administration is likely to turn to as President Donald Trump shifts focus from combating the health-care crisis to restarting the nation’s economy...Business groups and some Republican officials expect Scalia to get a more public spot in leading the charge to get Americans back to work. That includes pushing for Republicans’ top legislative and policy priority: legal liability protections for companies operating during the pandemic...The labor chief is already under fire for his management of the DOL’s Occupational Safety and Health Administration. Worker advocates have accused OSHA of being too lax in its response to the pandemic by ignoring calls to issue emergency safety standards that would be mandatory for businesses. AFL-CIO President Richard Trumka seized on that issue in a letter to Scalia last week...Scalia argued OSHA’s approach of periodically updating guidance for employers is a better way of responding to the contagion because scientific knowledge of Covid-19 continues to evolve. “At almost every decision point he has opted against the position that would be the most protective and compassionate,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School and a senior DOL official under President Barack Obama.

Almost exactly a year ago, back in the days when near strangers could strike up random conversations in Italian bars, I found myself learning about a new initiative on which Facebook was embarking — a kind of independent Supreme Court to help the company rule on the deluge of moral, ethical, editorial, and legal challenges it was facing...I asked lots of questions about this Facebook Oversight Board, an idea Mark Zuckerberg had announced the previous November. It seemed a promising move by a company which was exasperating and alienating so many people by its apparent unwillingness, or inability, to get grips with the torrent of lousy, malign content it was enabling and amplifying. As well as all the good stuff...The idea of the alternative — some form of independent, external oversight — apparently grew out of multiple conversations and a thousand op-eds. One such discussion, in January 2018, involved a Harvard Law Professor, Noah Feldman, who had struck up a dialogue with Mark Zuckerberg. Both men agreed that, whoever should be making some hugely consequential decisions about the information which half the connected people on the planet were plugged into, it probably shouldn’t be Mark Zuckerberg. In the eyes of some, the fruits of those deliberations — the Oversight Board — is one of the most significant projects of the digital age, “a pivotal moment” in the words of Evelyn Douek, a young scholar at Harvard, “when new constitutional forms can emerge that will shape the future of online discourse.” Others are unconvinced. Some, inevitably, will see it as a fig leaf.

The COVID-19 pandemic has caused several kinks in the food supply chain, making the recovery of excess food more difficult at a time when the population is increasing and already vulnerable to shortages. During Waste360’s recent webinar, “The Impact of COVID-19 on the Food Supply & Feeding the Hungry,” food waste and food rescue experts provided their thoughts on the potential short-term and long term effects the pandemic may have on the food supply chain, what it means for food recovery and how food banks and agencies are pivoting to make sure excess food gets to the people who need it the most. Discussing the virus’ effect were Dana Gunders, executive director of ReFED; Justin Block, managing director of retail information services at Feeding America; and Emily Broad Leib, clinical professor of law, director of the Food Law and Policy Clinic and deputy director of the Center for Health Law and Policy Innovation at Harvard Law School...In addition to CFAP, the federal government has increased funding to The Emergency Food Assistance Program (TEFAP) through the Families First bill. States and municipalities can apply to the Federal Emergency Management Agency (FEMA) for money to feed people, and there has been some flexibility in food safety when it comes to requiring nutritional labels, according to Leib of the Harvard Law School FLPC. The clinic provides legal and policy advice to nonprofits, government agencies, entrepreneurs, entrepreneurs and other organizations on a range of food policy questions, Leib said. Later this month the FLPC will be launching the new Global Food Donation Policy Atlas, which she said is “really relevant to this moment.”

An article by Adam Houston and Beatrice Lindstrom: In recent weeks, the United Nations Department of Peace Operations announced a series of protocol changes to reduce the risk that peacekeepers will introduce COVID-19 into vulnerable countries. As the introduction of cholera to Haiti in 2010 by UN peacekeepers demonstrates, such preventative measures are critical. Yet there is cause for concern that the lessons from cholera in Haiti have not translated into adequate action to protect peacekeeping host communities from the preventable transmission of disease. Peacekeeping presents a unique risk of introducing diseases into the world’s most vulnerable places. Since the World Health Organization (WHO) first declared the novel coronavirus a Public Health Emergency of International Concern in January, peacekeepers from over 120 countries have been involved in UN missions, traveling in and out of extremely fragile states. As Under Secretary-General for Peace Operations Jean-Pierre Lacroix observed, “the places where [UN] peacekeepers operate—vulnerable civilians there are the most at risk… [they are] fragile political environments, where individuals are living in conflict-affected or post-conflict societies with little to no infrastructure or social and sanitary safety nets.” This risk posed by peacekeeping is not merely hypothetical.

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.”