Media Mentions

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.

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.

An article by Cass Sunstein:  Why is it that when you check out of a hotel the bill is always so much larger than expected? It’s the assortment of unexpected fees — resort fees, destination fees, cleaning fees, hotel fees and more — that no one mentions until you’re leaving. Congress wants to do something about this. The House of Representatives is considering legislation that would increase transparency by requiring a room’s advertised rate to include all mandatory fees except those imposed by government. This bipartisan Hotel Transparency Act of 2019 is a terrific idea.

An article by Ashley Nunes, Senior Research Associate, Labor and Worklife Program:  Boeing executives faced a grilling on Capitol Hill this week. In separate hearings over two days, members of both the Senate Commerce Committee and the House Transportation and Infrastructure Committee pressed chief executive Dennis Muilenburg and lead engineer John Hamilton about Boeing’s internal workings, its relationship with federal officials and its commitment to air safety. The hearings come after two Boeing jets — both the 737 Max model — crashed within months of each another. In Indonesia one year ago, the plane plungedinto the Java Sea shortly after takeoff, killing all 189 passengers and crew on board. In Ethiopia earlier this year, a similar crash killed all 157 people aboard. Government regulators including those in China, Canada and the United States banned the jet from flying in their airspace after both crashes were linked to the same automation system, effectively grounding the Max. U.S. lawmakers now want answers about what went wrong and how to fix the regulatory system to avert another crash.

As is true of many legal concepts, “contempt of court” can be inexact in its definitions or implications. But that doesn’t seem to be the case when it comes to Education Secretary Betsy DeVos and her department’s treatment of thousands of students defrauded by the for-profit company Corinthian Colleges. U.S. Magistrate Judge Sallie Kim in San Francisco on Oct. 24 slapped DeVos and her agency with a $100,000 sanction for civil contempt. ... “The sector feels like they’ve never had a better friend in the federal government than Betsy DeVos,” says Eileen Connor of the Project on Predatory Student Lending at Harvard Law School, who represents plaintiffs in the lawsuit over the Corinthian settlement.

Massachusetts Attorney General Maura Healey joined us Thursday for a regular check-in as the state's top law enforcement official. We discussed the recent impeachment vote in the House of Representatives, Governor Baker's vaping ban, and her office's lawsuits against Purdue Pharma and ExxonMobil. But, first, we hear the latest on impeachment from our legal analyst. Guests: ... Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.

President Trump has sought to intimidate witnesses in the impeachment inquiry, attacking them as “Never Trumpers” and badgering an anonymous whistleblower. He has directed the White House to withhold documents and block testimony requested by Congress. And he has labored to publicly discredit the investigation as a “scam” overseen by “a totally compromised kangaroo court.” ... Laurence Tribe, a constitutional law scholar at Harvard Law School who has informally advised some Democratic House leaders, said Trump’s actions are unprecedented. “I know of no instance when a president subject to a serious impeachment effort, whether Andrew Johnson or Richard Nixon or Bill Clinton, has essentially tried to lower the curtain entirely — treating the whole impeachment process as illegitimate, deriding it as a ‘lynching’ and calling it a ‘kangaroo court,’” Tribe said.

Officials at Harvard Law School in Massachusetts sent a message to students with an unusual request: please don't feed the loose bird in the library. Visitors to the Harvard Law School Library reported spotted a small bird flying around among the stacks in recent days, and officials said they are working on a plan to capture and remove the academic avian.

One year ago on November 1, tens of thousands of Google workers spilled out of their offices around the world, protesting sexual harassment, misconduct and a lack of transparency at one of the most powerful tech companies in the world. In New York City, hundreds of workers gathered in a park near Google HQ, holding signs like "Women's rights are human rights" and chanting "time is up." Organizers took turns using a megaphone to address the crowd, reading anonymous stories from colleagues who said they'd been treated unfairly by the company. ... While the National Labor Relations Act of 1935 protects some organizing by employees outside of a union, the law has many weaknesses, said Sharon Block, an executive director of Harvard Law School's Labor and Worklife Program. "The law is pretty narrow," said Block, a former policy office head at the Department of Labor under President Barack Obama. She added that there's some understanding that workers are protected if they organize related to something that has an "immediate nexus to their working conditions."

Former students who say they were defrauded by now-defunct, for-profit colleges can take on the U.S. Department of Education as a class in a suit alleging the agency is slow-rolling their loan forgiveness applications, a California federal judge ruled Wednesday. U.S. District Judge William Alsup certified a class that could encompass more than 150,000 borrowers who applied for loan relief but haven't gotten a decision yet from the Education Department. ... Toby Merrill, the director of the Project on Predatory Student Lending, which is part of Harvard Law School's Legal Services Center, told Law360 on Thursday that the student borrowers his organization is representing in the case are happy with the judge's decision. "These borrowers, the vast majority of whom attended for-profit schools, were cheated by their schools, and then ignored by their government," Merrill said. "This lawsuit asks the court to force Secretary DeVos to follow existing law, to stop ignoring borrowers' rights to loan cancellation, and to allow these people to go on with their lives."

Ask people in America whether “the people” rule, and “most would find the idea somewhat quaint,” writes Lawrence Lessig in the introduction to his new book They Don’t Represent Us (Dey St., $26.99), published for election day this year. “Everywhere, there is the view that democracy represents the elite.” He continues: That an oligarchy or a monarchy would reward an elite is understandable. It’s built into the DNA. For a democracy to favor the elite over the people is to add insult to suffering. It is to betray the very promise at the core of the institution. It is to reveal, in a word, that the institution has been corrupted. Lessig, who is Furman professor of law at Harvard Law School, argues that the responsibility for this failure lies partly with the system of elections in the United States, that elevates unrepresentative candidates to political office, and partly with “us,” the voters, who have become increasingly partisan and/or uninformed about critical issues.

The U.S. House of Representatives on Thursday passed a resolution that formalizes the impeachment probe against President Trump. The resolution outlines the next steps of the inquiry, authorizing the chairman of the House Intelligence Committee to conduct open hearings and the president and his attorneys to cross-examine witnesses. ... For a discussion of the significance of the resolution, Harvard law professor and constitutional expert Laurence Tribe, who's long called for Trump's impeachment, joined WBUR's Morning Edition.

The U.S. House of Representatives is set to vote Thursday on a resolution that moves its impeachment probe against President Trump into a new phase. The vote could clear the way for articles of impeachment against the president for allegedly withholding aid from Ukraine unless that country investigated Democratic presidential candidate Joe Biden's family. For a look at the significance of the move, Harvard law professor and constitutional expert Laurence Tribe joined WBUR's Morning Edition host Bob Oakes.

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.”