Media Mentions

FERC’s December order to exclude wind, solar and nuclear power from part of its largest electricity market is drawing support from several largely fossil fuel power producers that argue the decision won’t hobble the growth of renewable energy even as it boosts coal and gas plants. FERC last month voted to set a price floor that will effectively exclude renewable and nuclear sources that receive state support from the PJM capacity market. Environmentalists lambasted the order as an attack on clean energy and a bailout for fossil fuels, but its supporters say the effects on wind and solar — which were only about 1 percent of the capacity cleared in PJM’s last auction — will be minimal...Regardless of whether FERC grants a rehearing, renewable energy companies and environmentalists are likely to challenge the order in court, arguing it violates state jurisdiction over power plant siting and contending that FERC acted in an “arbitrary and capricious” manner because it did not consider the potential costs to consumers when crafting the order. “There are lots of opportunities for 'arbitrary and capricious' challenges,” said Ari Peskoe, director of the Harvard Electricity Law Initiative, including FERC’s broad definition of which subsidies will qualify for the price floor, and why FERC did not include an option for individual plants to opt out of the capacity market. “Rehearing request deadline is next Tuesday. We’ll have a better picture of the legal arguments then.”

It was 1970. Congress was wrestling with whether to give the right-of-way necessary to build a huge, 800-mile oil pipeline across Alaska, when a district judge blocked the project, using a brand new law requiring federal agencies to consider the environmental impact of projects...Exactly 50 years later, that law – the National Environmental Policy Act (NEPA) – is under attack. The Trump administration last week announced proposed reforms to the act that would significantly reduce its scope. It’s the latest move in an unprecedented effort to roll back not only recent Obama-era environmental regulations but also some of the bedrock laws that have shaped federal environment policy since the 1970s...Whittling away the government’s regulatory structures has always been part of Mr. Trump’s agenda, but his dismantling of the EPA is unique, says Caitlin McCoy, a fellow in the Environmental and Energy Law Program at Harvard Law School who tracks such changes. Changing NEPA is the latest sign that the administration wants to undermine the statutory foundations of the EPA. “They’re trying to take away the very things that the agency relies upon to do its job and to really severely damage its legal authority to function,” she says. “With other agencies, it’s similar, like, yes, we’re relaxing some of these tax rates, but it’s not like we’re trying to keep the IRS from doing audits.”

The House voted 231-180 to overturn new regulations introduced by U.S. Secretary of Education Betsy DeVos that critics argue limit student loan forgiveness when a college closes due to fraud. The Obama-era rules, known as borrower defense to repayment, allow students to have their federal student loans forgiven if a school employed illegal or deceptive practices to encourage the students to borrow debt to attend the school. Without these rules, students are potentially on the hook to repay federal student loans even if they didn’t find gainful employment or finish their degree before their school closed...Attorneys general from 19 states, plus the District of Columbia, sued DeVos and the Education Department for delaying the borrower protection rule that was scheduled to take effect beginning July 1. A federal judge previously ordered DeVos to comply with the borrower defense rule. However, rather than comply with the judge’s order, the Education Department instead did the following, according to the Project on Predatory Student Lending at Harvard Law School: “The Department demanded incorrect loan payment from 16,034 students. Of those students, 3,289 student borrowers made one or more loan payments because of these demands, which they were not actually supposed to pay..."

An article by Noah Feldman:  White House counsel Pat Cipollone will reportedly lead the team that represents President Donald Trump in the Senate impeachment trial.

California was the first state to challenge tech companies such as Uber and Lyft with bold laws meant to reshape the gig economy by converting workers into employees. And now a handful of other states are following its lead. Legislators in three other states with Democratic majorities, New York, New Jersey and Illinois, are considering similar bills that could open the door for a wide range of freelance workers. The bills would benefit not just app gig workers but janitors, construction workers, truckers and educational workers...“It’s a moment in our politics, where people are understanding, especially in progressive states, these tensions between big corporations and corporate money and ordinary people,” Terri Gerstein, the director of the State and Local Enforcement Project at Harvard Law School. “These work issues and issues of economic inequality have come to such a fever pitch.”

With an oath of impartiality, Chief Justice John G. Roberts Jr. on Thursday became only the third American sworn to preside over a presidential impeachment trial. How he fulfills that pledge will have obvious consequences for President Trump. But it also will shape the public image of the nation’s 17th chief justice, and it holds ramifications for the Supreme Court and federal judiciary he leads. He portrays both as places where partisan politics have no purchase. “And now he crosses First Street, where it’s all about partisan politics,” said Harvard law professor Richard Lazarus, referring to the roadway in Washington that separates the Supreme Court from Congress. There are obvious risks for Roberts, but Lazarus said he doesn’t believe the chief justice will be particularly “risk-averse.” “I don’t think he’s going to look like a potted plant,” said Lazarus, who has known Roberts since law school and has taught summer courses with him after he became chief justice. “He’s not going to erode the stature of the chief justice and the Supreme Court in the process by looking like an insignificant person.”

When we live in an age of information, what information do we choose to absorb? And once we have absorbed information, which factors influence how we process it? Cass Sunstein ’78, the Robert Walmsley University Professor at Harvard, examines those questions in a study published this week in the scientific journal Nature Human Behaviour. The paper, “How people decide what they want to know,” was co-authored by Tali Sharot, a professor of cognitive neuroscience in the department of Experimental Psychology at University College London. ... Sunstein discussed his research with Harvard Law Today in an email interview that took place this week as he was en route to London.

As the 2020 federal election draws closer, the issue of online political advertising is becoming more important, and the differences in how the platforms are approaching it more obvious. Twitter has chosen to ban political advertising, but questions remain about how it plans to define that term, and whether banning ads will do more harm than good. Meanwhile, Facebook has gone in the opposite direction, saying it will not even fact-check political ads. So whose strategy is the best, Twitter’s or Facebook’s? To answer this and other questions, we convened a virtual panel of experts...Harvard Law student and Berkman Klein affiliate Evelyn Douek, however, said in her view neither company is 100 percent right. “The best path is somewhere in the grey area in between,” she said. “It’s not obvious that a ban improves the quality of democratic debate. Facebook’s position, on the other hand, seems to rest on a notion of free expression that is nice in theory, but just doesn’t match reality.”

Bernie Sanders is a fierce critic of the Supreme Court’s Citizens United ruling, which removed most limits on corporate and union spending on politics. The “disastrous” decision, he repeatedly warns voters, is transforming America from a democracy to an “oligarchy” where billionaires can “buy elections"...After reviewing dozens of studies analyzing the impact of contributions on lawmakers’ voting records, the researchers settled on what seemed like a pretty clear answer: Donations don’t buy you much...Lawrence Lessig disagrees. Vehemently. A Harvard law professor who ran for president in 2016 on an anti-corruption platform, he says you can’t learn much by analyzing the effect of lobbyists’ donations on representatives’ final votes on legislation. “There are 10,000 places between the idea and the final vote where influence can be exercised — and that’s indeed what we see," he says. "The lobbyists don’t stand on the floor of Congress and say, ‘don’t vote for this’ or ‘do vote for that.’ They go to a committee and say, ‘Look, we don’t want this bill to come up. And if this bill comes up, we want it to be amended in the following way.’”

If you hold a stock market index fund, congratulations. The S+P 500’s total return was a thumping 31.5% in 2019, and a fund that passively tracks that benchmark delivered almost all those gains, minus a tiny fee—perhaps just 0.04% of assets. Now here’s something you probably weren’t thinking about when you clicked on the box to choose an index fund in your 401(k) or IRA: You were also part of one of the biggest shifts in corporate power in a generation...Lucian Bebchuk, a Harvard law professor, says index fund managers don’t have incentives to invest the time into actively supervising companies. That’s because any effort to increase the value of a company would also increase the value of the index, which in turn benefits every fund that tracks the index. As a result, the fund that pushes management can’t stand out from its peers and attract more money—yet it incurs higher stewardship costs. The concern is that such deference will “result in insufficient checks on corporate managers,” Bebchuk says.

An article by Laurence Tribe: The United States is living through a remarkably convulsive period in its history. Donald Trump has reshaped the American presidency, and his norm-shattering behavior has tested the US Constitution in profound ways. He has placed stress on points of constitutional vulnerability, particularly when it comes to judicially unenforceable norms of respect for fact-based reality, for orderly decision-making, and for investigatory and prosecutorial independence. Trump’s rise to power has also raised questions about some of the Constitution’s most solidly entrenched provisions. His victory in 2016 highlighted the dangers posed by the Electoral College in the face of changing demographic realities, and now his presidency is testing the viability of the impeachment process to cope with a demagogue who has captured the machinery of an entire political party and controls one chamber of Congress.

A new law in California seeks to rewrite the rules of work and what it means to be an employee. Known informally as the gig-economy bill, or AB5, the legislation went into effect on Jan. 1, seeking to compel all companies ― but notably those like Lyft and Uber ― to treat more of their workforce like employees. The law represents a cataclysmic shift for workers who depend on apps to get gigs, and it has inspired similar efforts in New York, New Jersey and Illinois. Heavyweight presidential candidates like Elizabeth Warren and Bernie Sanders have championed the measure...A coalition of tech companies have pledged a reported $110 million for a new measure on the November ballot to exempt app-based drivers. Lyft and Uber, which together have more than 500,000 drivers in California, say they believe the law does not apply to their drivers, while simultaneously pursuing other avenues to exempt themselves from its provisions... “We are in this place because we have these really big companies that will put tens of millions up for the right to deny basic protections for workers,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School.

Three or four? It’s a question being hotly debated as House Speaker Nancy Pelosi (D-Calif.) prepares to transmit the articles of impeachment against President Trump to the Senate for trial. Will it take four Republican senators to buck Majority Leader Mitch McConnell (R-Ky.) and force the Senate to consider additional testimony and documents? Or could the votes of just three Republicans — bolstered by Chief Justice John G. Roberts Jr. — do the trick? The answer to the question hinges on the role of the chief justice, who the Constitution specifies shall “preside” over the trial...In any other setting besides the trial of the president, a 50-50 Senate tie would be broken by the vice president, who under Senate rules occupies the position of “presiding officer” in an impeachment trial. But the chief justice fills that role in the case of a presidential impeachment, which raises questions about whether he should behave any differently. Many have argued that the chief justice will play a strictly honorary role at the trial, with no substantive input whatsoever...Harvard Law School professor Laurence Tribe told me he “agree[s] strongly that the role is not solely honorific or purely decorative.”

Soon after a US drone strike killed Iranian Maj. Gen. Qassem Soleimani in Iraq earlier this month, President Donald Trump’s re-election campaign began touting the “swift actions of our Commander-in-Chief” in paid Facebook ads that cast the killing in a positive light. When it comes to posts that appear to support the dead general, however, it’s a different story: The company is employing some questionable legal reasoning about US sanctions law to justify deleting such content from its subsidiary, Instagram... “Facebook appears to be equating political or legal opposition to the Trump administration’s killing of Soleimani with indirect support for Soleimani himself and thus analogizing it to properly forbidden material assistance to non-state terrorist groups,” Harvard Law School professor Laurence Tribe wrote in an email. “Any such equation wades deep into clearly forbidden speech-suppressing territory, well beyond what even the majority in Holder v. Humanitarian Law Project authorized as consistent with the First Amendment.”

One can only imagine what evidence we have yet to see during the impeachment proceedings against President Trump. With each new tranche of evidence — including emails regarding the hold on military aid to Ukraine and now documents from Lev Parnas, an associate of Trump lawyer Rudolph W. Giuliani’s — the conclusion that Trump abused power and obstructed the investigation becomes incontrovertible. The Post reports: “Three House committees sent dozens of pages of new evidence to the House Judiciary Committee ahead of Wednesday’s transmission of the articles of impeachment, ramping up pressure on Trump to provide Congress with additional documents related to his efforts to get Ukraine to announce an investigation into the Bidens"...Constitutional scholar Laurence Tribe tells me the new evidence is " jaw-dropping" and “highly incriminating of both Giuliani and Trump.” Tribe says, “It’s bound to find its way into the Senate trial after Parnas is deposed by the House Judiciary and Intelligence committees, as he’s bound to be.” Tribe continues, “The Giuliani letter presenting himself to Zelensky as representing Donald Trump in his private capacity at a time when Zelensky was the president-elect of Ukraine is remarkable in itself. It is a kind of hologram of the whole Ukraine-gate scandal.”

Sen. Elizabeth Warren, D-Mass., has pledged to cancel up to $50,000 of debt for 95% of student loan borrowers if she is elected president. Sen. Bernie Sanders, D-Vt., has proposed an even more generous plan if he's elected. Both are bold, controversial pitches that would have a hard time making it through a divided Congress. But on Tuesday, Warren announced she would use a little-known shortcut, and wouldn't need Congress. As president, she says, she could cancel the debts of tens of millions of student borrowers all on her own. It turns out, she's probably right...43 million student borrowers owe the U.S. government $1.5 trillion, according to the U.S. Department of Education. And until now, the department has only offered student loan forgiveness or cancellation to borrowers who meet certain criteria. "Maybe it's because they've been working in a public service position or because they become disabled or because they're saying that their school fundamentally cheated them," says Eileen Connor, legal director of the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School. "Those pathways exist. And I think what Sen. Warren's proposal is pointing out is that there's also this freestanding power that the secretary of education has to cancel debts, not for those reasons, but really for any reason at all."

An article by Noah Feldman: If you’re expecting President Donald Trump’s impeachment trial in the U.S. Senate to be a matter of high drama, it’s time to lower your expectations. The trial won’t look much like “Law & Order,” or for that matter any other criminal trial you’ve seen on TV or in real life: There will be no witnesses in the opening phase, and likely none at any point in the proceedings. Instead, it will look much more like a series of speeches by the House impeachment managers and Trump’s lawyers. How can it be that the impeachment trial will barely be a trial at all? The answer lies in the Senate’s own changing practices over the centuries. Given the Senate’s love for protocol, you might imagine that there would be some time-tested, universally respected procedure for how an impeachment trial should go. The truth is otherwise.

An article by Laurence Tribe: The case for calling witnesses in the Senate’s impeachment trial of President Trump, and for subpoenaing documents that the White House has withheld from Congress, is now too compelling to deny. There is so much public support for hearing all the relevant evidence, and not just among Democrats, that it is becoming politically toxic for increasingly many senators to resist doing so. Senate majority leader Mitch McConnell’s efforts to bury the truth and turn the trial into a whitewash with a quickly delivered foreordained conclusion have all but come to naught, thanks in large part to the patience and savvy of House Speaker Nancy Pelosi, who wisely resisted the pressure to transmit the two articles of impeachment within days of the House vote impeaching Trump. If it’s already clear that the witnesses whom the president has successfully silenced thus far, despite their firsthand knowledge of what he knew and when he knew it in the context of shaking down Ukraine for his personal benefit, are indeed likely to be called, why take the trouble of saying more about the need for them to appear in the impeachment trial?...The reason is that we cannot afford to leave any stone unturned when dealing with as lawless and fickle a presidential administration and its Senate accomplices as the Trump/McConnell cabal has shown itself to be.

One of the talking points that supporters of President Donald Trump have been using in defense of the killing of Iranian military commander Qasem Soleimani on January 3 is that the killing is no different from the operation that resulted in the death of al-Qaeda leader Osama bin Laden in 2011 under President Barack Obama. But bin Laden, unlike Soleimani, was not a government official. And constitutional law professor Laurence Tribe is asserting that the Soleimani killing amounts to a “summary execution without trial” rather than an act of self-defense. Last week on Twitter, the 78-year-old Tribe (who co-founded the American Constitutional Society and teaches at Harvard Law School) posted, "In the fog of war, it’s easy to lose track of what counts. Whether Soleimani posed an ‘imminent’ threat that killing him would assuredly end isn’t just a debate over labels. It’s the difference (between) self-defense to protect Americans and murder to stave off Trump’s impeachment.”

The Seattle City Council voted Monday to ban most political spending by “foreign-influenced corporations,” in a move that could hinder attempts by multinational tech titans to influence the city’s elections. The legislation’s architect, Council President M. Lorena González, has said she believes the ban will apply to Amazon, despite the company being based here, because it will cover businesses substantively owned by foreign investors. The measure will close a loophole because foreign individuals and foreign-based entities already are barred from making contributions in United States elections, González said Monday...Federal Election Commissioner Ellen Weintraub encouraged the council to move ahead with the idea, as did Harvard Law School scholar Laurence Tribe. The Seattle Ethics and Election Commission and Washington State Public Disclosure Commission shared support.

The Supreme Court on Monday declined to take up an appeal filed by Michelle Carter of Plainville. Her boyfriend, Conrad Roy, killed himself in 2014 and Carter was convicted of involuntary manslaughter for encouraging him to do so. Her team said the conviction violated Carter's First Amendment rights. WBUR legal analyst Nancy Gertner is part of that defense team — she's also a retired federal judge, and senior lecturer at Harvard Law School. She joins us to discuss the case.