Media Mentions

A federal judge held U.S. Secretary of Education Betsy DeVos in contempt of court last week for billing thousands of students who were victims of education fraud. U.S. Magistrate Judge Sallie Kim on Thursday said the Department of Education continued to collect money from former students of the for-profit Corinthian Colleges despite a May 2018 court order to stop. The San Francisco judge fined the department $100,000 and required detailed monthly reporting to verify future compliance. “The judge is sending a loud and clear message,” said Toby Merrill, director of Harvard Law School’s Project on Predatory Student Lending, which helped file the suit. “Students have rights under the law, and DeVos’ illegal and reckless violation of their rights will not be tolerated.”

Last week marked the first official meeting of the U.S. State Department’s new Commission on Unalienable Rights. The meeting was held in a State Department auditorium in front of a crowd of a few dozen U.S. officials and nongovernmental organization (NGO) representatives. The commission’s stated purpose is to provide “fresh thinking about human rights discourse,” and in an op-ed on the commission’s creation, Secretary of State Mike Pompeo said he hoped that it would “generate a serious debate about human rights.” Unfortunately, so far, the commission has created more questions than answers, as well as cause for alarm when it comes to protecting the rights of vulnerable communities...The announced chair, Harvard Law School professor Mary Ann Glendon, is an anti-abortion advocate, and a previously considered chairman is well known for his anti-LGBTQ views...Pompeo called the commission’s work “urgent,” and Glendon has cited China’s attempts to undermine the global consensus on human rights as a key example of its necessity. She is right to be concerned.

A number of Facebook's recent decisions have fueled a criticism that continues to follow the company, including the decision not to fact-check political advertising and the inclusion of Breitbart News in the company’s new “trusted sources” News tab. These controversies were stoked even further by Mark Zuckerberg’s speech at Georgetown University last week, where he tried—mostly unsuccessfully—to portray Facebook as a defender of free speech...Harvard Law professor Jonathan Zittrain...said the political ad fact-checking controversy is about more than just a difficult product feature. “Evaluating ads for truth is not a mere customer service issue that’s solvable by hiring more generic content staffers,” he said. “The real issue is that a single company controls far too much speech of a particular kind, and thus has too much power.”

An article by Noah Feldman: A growing number of cities and states want to turn climate change lawsuits against oil companies into the next tobacco or opioid litigation. In principle, that seems like a truly terrible idea. Such lawsuits will likely do even less to remedy the effects of climate change than similar suits did for lung cancer or opioid addiction. Yet on closer analysis, the climate change lawsuits may be the worst solution to mitigating climate change — except for all the others. The analogy to Winston Churchill’s notorious defense of democracy isn’t an accident. In the American form of democracy, oil companies enjoy an almost unparalleled capacity to influence Congress and federal government regulators. Local governments aren’t quite so captured. Recently, New York state’s lawsuit against Exxon began its trial; Massachusetts filed its own suit; and the Supreme Court declined an admittedly unusual request to stay suits being brought in state courts in Maryland, Rhode Island and Colorado.

In recent years, there has been much talk about how social-media intrusions—bots, trolls and propaganda—affected the last U.S. presidential election, and may affect the next one. But this is increasingly a worldwide phenomenon, and on Oct. 23 at Harvard Law School, Deputy Chief Justice of the Supreme Court of Israel Hanan Melcer described how his country has dealt with it. Israel’s cyberattacks didn’t come from Russia or another outside country, but from political parties spreading propaganda against each other. Moderated by Harvard Law School Professor Yochai Benkler ’94 and sponsored by the Berkman Klein Center for Internet and Society, the talk outlined measures the Israeli Supreme Court took to shut down deceptive election posts. As Benkler, the author of “Network Propaganda Manipulation, Disinformation, and Radicalization in American Politics” noted, “(Israel) saw everything we saw in our last election cycle, and much that we will likely see in the next two years.”

Morriah Bosco spent 18 years in the foster care system. She was moved 40 times. Bosco said the Department of Children and Families wrote on her placement plan that her goal was reunifying with kin — but no one actually looked for a family member to take her in. She was never given a permanent placement or a plan to help her age out of the system...No one, she said, oversaw DCF. While federal law requires every foster care case be reviewed every six months, Bosco said she once went 18 months in a restrictive setting without a review...Crisanne Hazen, assistant director of the Child Advocacy Program at Harvard Law School, called the data tracking and operational changes “the bare minimum that need to be made to ensure that our children are safe...This independent office will provide a system of checks and balances, transparency and oversight that will truly show the commitment of this commonwealth to the safety and care of our children,” Hazen said.

The Justice Department may end a nearly 30-year practice of letting companies make amends for pollution-related violations by performing environmentally beneficial projects, a department official told Bloomberg Environment. Stopping the use of supplemental environmental projects (SEPs) would go against the wishes of many in the business community, because the projects offer a way to lower the amount of fines while serving as positive public relations for a company. SEPs have traditionally been used to let businesses and individuals volunteer to do environmentally beneficial projects in exchange for lower fines for transgressions...In some cases, SEPs can be used to boost an industry’s environmental performance. Obama-era EPA enforcement chief Cynthia Giles pointed to a 2015 court-approved settlement involving Clean Air Act violations by Noble Energy Inc., which agreed to conduct a $1 million study of emissions of air pollutants from storage tanks. “What that allowed to happen was all the other players in the oil and gas industry would get the benefit of the research and analysis and money that the company devoted to figuring this out, so that other companies could fix these problems at their own facilities,” said Giles, now a guest fellow at Harvard Law School’s Environmental and Energy Law Program. “They’re a way for the violating city or company to take action to attempt to make amends for the harm they caused their community,” Giles said.

In case you haven't noticed, California's on fire. And according to scientists and environmentalists, wildfires will only increase in frequency and severity — and not just there. Scenes of elite enclaves aflame in Los Angeles and Sonoma could be a window into what the rest of the country will face in the very near future due to climate change. Yet as California burns, the Trump administration continues to target the state that has served as the nation's leader in implementing ambitious climate change policy...“I think the entire agenda of the Trump administration on climate change is at odds with the reality in California,” said Jody Freeman, the founding director of the Harvard Law School Environmental and Energy Law Program who served as an energy and climate change counselor in the Obama White House. “The federal government is behaving like it’s in a different world than what the state of California is dealing with...Wildfires are raging out of control and California is keenly aware of what they need to do to solve this problem,” Freeman told Power Up, “and then you see the systematic attempt by Trump to dismantle every tool to deal with climate change…There is an element of this that almost seems mean-spirited and intentionally punitive.”

The Post reports, “House Democrats unveiled new procedures for the impeachment inquiry of President Trump on Tuesday, responding to Republican demands for due process by setting out rules for future public hearings delving into whether Trump should be removed from office.” This will be the House Intelligence Committee Chairman Rep. Adam B. Schiff’s (D-Calif.) show...Constitutional scholar Laurence Tribe tells me, “The procedures this resolution would put in place are well adapted to bringing the truth to light in a way that respects historical precedent, gives the president and his defenders a full and fair opportunity to challenge his accusers and to present his defense, gives members on both sides of the aisle an equal chance to test the evidence and finally gives the American people the opportunity they have been waiting for to decide whether the sitting president has shown himself to be a danger to the republic.”

The Post reports: “House Democrats said Monday that the House will vote Thursday to formalize procedures for the next phase of the impeachment inquiry into President Trump. Democrats said the move would ‘ensure transparency and provide a clear path forward’ as the inquiry continues.” Contrary to the claims of Republicans partisans and some sloppy reporting, this does not authorize the inquiry. The impeachment proceedings are already underway. The main purpose is to set forth how the inquiry will proceed and undercut Republican complaints of lack of transparency...So why bring this up now, especially after a court held in Democrats’ favor? One possibility is that in preparing an article of impeachment on obstruction of Congress, Pelosi does not want to leave a crack open whereby Trump’s lawyers would say, well, he had a good-faith belief the impeachment process was not officially underway. Constitutional scholar Laurence Tribe approves of Pelosi’s move. “This resolution makes perfect sense now that the House leadership has wisely decided to forgo further judicial jockeying and to move expeditiously to public hearings,” he argues. “Calling the Trump administration’s bluff this way will make it clear that the continued stonewalling of the administration — and of those current and former officials who use the administration’s gag order as an excuse for seeking what amount to advisory judicial opinions on whether to comply with congressional subpoenas — is just a stalling tactic, not a good-faith effort to resolve conflicting obligations when confronted with a subpoena from Congress and a directive from the White House to defy that subpoena.”

An article by Cass Sunstein: What divides the right and the left? Not 50 years ago, or 20 or even 10 years ago, but right now? Here’s one speculation: Conservatives tend to be localists; they focus on their families, their towns, their states and their nation. Progressives are far more likely to be universalists who focus on human beings as such. New evidence strongly supports this speculation, and explains a lot about current political divisions, not only in the U.S. and Canada but also in Europe and elsewhere. It also offers concrete lessons for aspiring politicians, whether they’re on the right or the left. The relevant studies were conducted by a team of researchers led by Northwestern University’s Adam Waytz and including New York University’s Jonathan Haidt, who has done the defining work on the differences between conservatives and progressives. Their principal finding is that conservatives show a clear preference for tighter and “more defined” social circles, emphasizing “their immediate social groups,” while progressives favor looser circles, and express “compassion toward individuals broadly construed.”

An article by Noah Feldman: According to the White House, senior advisers who work closely with the president have “absolute immunity” from congressional subpoena on matters related to their official duties. That’s what the Trump administration is telling former deputy national security adviser Charles Kupperman — and almost certainly telling former national security adviser John Bolton. Kupperman, caught between a House subpoena and a presidential directive not to testify, went to the federal district court in Washington, D.C., on Friday to ask what he should do. To answer him, the court will likely have to rule on whether the claim of absolute immunity holds water or not.

On Sunday, the Globe’s Jenna Russell told the tale of renowned Harvard Law School Professor Charles J. Ogletree Jr.’s journey into the fog of Alzheimer’s disease. We caught up with Russell to ask about the process of reporting this sensitive story and about the outpouring she’s received from readers..."One thing that was important to Pam [Ogletree] was to tell people about some of the treatment possibilities that do exist, in the hope that others might find them sooner than the Ogletrees did, and reap more benefits. But it’s been so interesting to see the different ways readers are responding. A handful found the story too hopeful or too sweet, not dark enough in what it shows of the disease. But overwhelmingly, I am hearing from caregivers who recognize themselves and their own experience in what Pam and Charles are living through, in love that survives the worst things life can offer. I think that recognition means the most to me."

In 1994, as a slew of scandals were popping up around President Bill Clinton, an attorney who worked with his defense team visited the Office of Government Ethics (OGE) in Washington to ask a simple question in person: Could the president of the United States accept free legal services from his personal lawyers? An unambiguous answer came back from the OGE, the executive branch’s in-house experts at preventing conflicts of interest: No...Flash forward 25 years, and President Trump is doing things very differently...Charles Fried, a Harvard Law professor who served as solicitor general under President Ronald Reagan and serves on the board of the nonpartisan Campaign Legal Center, said it would be “obviously problematic” for Trump to have a member of his legal team working pro bono. “He is ... receiving hundreds of hours of legal services, which, you know, people like Giuliani charge a thousand dollars an hour. [Trump is] getting that for free,” Fried said.

After two years of struggling to pass any of his community college classes, Jamarria Hall, 19, knows this for certain: His high school did not prepare him. The four years he spent at Detroit’s Osborn High School were “a big waste of time,” he said, recalling 11th and 12th grade English classes where students were taught from materials labeled for third or fourth graders, and where long-term substitutes showed movies instead of teaching. What’s less certain, however, is whether Hall's education in Detroit’s long-troubled school district was so awful, so insufficient, that it violated his constitutional rights. That’s the question now before a federal appeals court that heard arguments last week in one of two cases that experts say could have sweeping implications for schools across the country...Martha Minow, a former dean of Harvard law school and the author of a book about the legacy of the landmark Brown v. Board of Education decision, said the education system in Michigan violates the Constitution because some school districts in the state fail to provide even a minimal education while others, including those in affluent suburbs of Detroit, are providing a much higher quality education. “Some people are getting an education and other people are not, and that’s discrimination,” said Minow, who filed an amicus brief on behalf of the Detroit students.

The impact of the #MeToo movement in American culture is undeniable, and the high-profile prosecutions of Harvey Weinstein, Bill Cosby, and other powerful men suggest it’s a legal success, as well. But the broader impact of the movement will depend upon lawmakers and judges’ willingness to incorporate its principles into the American legal system. Some activists have argued that prosecutors should be able to use “Me Too” evidence—allegations that a defendant committed a similar offense against individuals other than the victim in the case at hand. This evidence isn’t easily admissible. But prosecutors may be able to persuade courts that the voices of other victims can help a judge or jury determine the truth of an accusation...As Harvard Law School professor Jeannie Suk Gersen has written, the strength of “Me Too” evidence lies in “the power of numbers across time.” While a victim’s lone account of the offense might not be believed, “the choruses of ‘me too’ ” make each account much more believable. “Me Too” witnesses together convey a potent message that “what you say happened to you happened to me, too, and so it is more likely that we are both telling the truth.”

An article by Patrick McDonnell ('21), Jacques Singer-Emery ('20), and Nathaniel Sobel ('20): Then-Rep. Gerald Ford once defined an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” But legal scholars have concluded that impeachment is considerably more law-governed, and constrained, than Ford suggested. They draw on clues from the Founders, the text and structure of the Constitution, and the history of presidential impeachments (and near-impeachments) to make varying arguments about the impeachment power and the range of impeachable offenses. For this post, we read eleven of the leading scholarly works on impeachment so that you don’t have to...And of a more recent vintage, we cover a collection of Trump-inspired works, including books by Cass Sunstein, Laurence Tribe and Joshua Matz.

Chasten Buttigieg thinks of himself as a story collector, gathering anecdotes from voters across the country to pass along to his husband, South Bend, Ind., Mayor Pete Buttigieg. Bruce Mann is Elizabeth Warren’s sounding board and joked that his most formal role in his wife’s campaign is managing their dog Bailey when he joins the Massachusetts senator in New Hampshire. Doug Emhoff, California Sen. Kamala Harris’s husband, memorably rushed to her defense when a protester charged toward her on stage at an event. In a presidential field with a historic number of women and the first openly gay candidate, those three are part of the largest-ever group of male spouses of White House contenders, and they are figuring out their roles in boosting their partners’ prospects. ... Mr. Mann, who is still teaching full-time at Harvard Law, said he also prefers a more low-key role. “I’m a husband,” he said. “I’m not a policy adviser.” Mr. Mann said his wife, who is known for all her policy proposals, “bounces ideas” off him, “but in a very limited sense.”

An article by Noah Feldman: In an important development, a federal district court in Washington, D.C. has pointed the way to a possible resolution of the standoff between President Donald Trump and the House of Representatives over the legitimacy of the impeachment inquiry. The court’s ruling signals that at least part of the judiciary is prepared to help resolve the emerging constitutional crisis — by deciding in favor of Congress and against the president.

In this edition: Why it matters that Joe Biden said “yes” to a super PAC, what happened at South Carolina's criminal justice forum, and whether the killing of Abu Bakr al-Baghdadi will affect the election. I still don't know what “died like a dog” is supposed to mean, and this is The Trailer. Until Thursday, when Joe Biden's presidential campaign ended its opposition to a supportive super PAC, Biden convincingly explained why this would be a bad idea. In his 2017 memoir “Promise Me, Dad,” Biden revealed that he would have refused super PAC support had he run in the 2016 primary. ... Larry Lessig, an academic and activist who launched a super PAC and then a 2016 presidential campaign to demand campaign finance restructuring, said that Biden's approach to super PACs was less important that what he committed to do if he won in 2020. “I always find this distracting,” Lessig said. What mattered was not how Biden's allies raised money; it was whether he, or any other Democrat, pledged to replace the campaign money system with some kind public financing. “That would be one thousand times more important than whether or not he had a super PAC. We need to focus people on the real issue.”

Ruth Bader Ginsburg is a revered Supreme Court justice who spent her early legal career fighting for women’s rights. But one justice gave her original performance before the high court only passing marks. “Prof. Ruth Ginsburg. C-plus,” Justice Harry Blackmun wrote on loose-leaf paper during her first Supreme Court argument, Frontiero v. Laird, in January 1973. “Very precise. Female. Reads.” Perhaps alone among his colleagues, Justice Blackmun made detailed assessments of Supreme Court advocates, grading them like law students and often noting their hometowns, law schools and even their ethnicities. Several of those attorneys later joined the Supreme Court. ... Among private attorneys, the late E. Barrett Prettyman Jr., who had clerked for three Supreme Court justices, earned an exceptional 3.1 average over 14 arguments. Harvard law professor Laurence Tribe pronounced himself pleased when informed by the Journal of his own 3.1 GPA, also over 14 cases. “It seems quite fair and in some cases generous,” Mr. Tribe said, adding that he wasn’t sure he deserved a Blackmun 6 in a 1989 bankruptcy case, Granfinanciera SA v. Nordberg. “I didn’t do very well,” he said.