Media Mentions

“The Justice Department is swapping out the lawyers who had been representing the administration in its legal battle to put a question about citizenship on the 2020 Census, possibly signaling career attorneys’ legal or ethical concerns over the latest maneuvering ordered by President Trump." Even more extraordinary, a Justice Department official "said the entire team on the case — both those in political positions and career employees who have served multiple administrations — will be replaced with political and career lawyers from the department’s Civil Division and Consumer Protection Branch.” ...Not to put too fine a point on it, but what these lawyers do will have profound consequences for the country and their careers. Constitutional scholar Larry Tribe warns, “The Department of Justice cannot avoid the long-term credibility cost to its litigating posture of contradicting itself in successive filings simply by changing the names of the career DOJ lawyers on the pleadings or by bringing new faces into court. If that’s the aspiration, it’s not going to succeed.”

An article by Jeannie Suk-Gersen: In 1944, in New York, a decade before Allen Ginsberg, Jack Kerouac, and William S. Burroughs would publish their countercultural works, there was a killer in their midst. Lucien Carr was a brilliant Columbia University student from a prominent Midwestern family. He had introduced the three men to one another and was at the center of the circle of friends that defined what was later known as the Beat Generation. The nineteen-year-old Carr stabbed another member of the group, David Kammerer, in Riverside Park, with a Boy Scout knife, and dumped his body in the Hudson River. Carr claimed that Kammerer, his former scoutmaster, who was thirty-three, had followed him for years, from city to city, and made “indecent” advances. The New York press, defending Carr, portrayed the killing as an “honor slaying.” Although he was charged with murder, prosecutors allowed Carr to plead guilty to the lesser crime of manslaughter. He served two years in a reformatory and then lived out his life as a respected news-agency editor. The case was one of the first high-profile instances of a “gay panic” defense, in which a person claims that his violent act was a sudden emotional response to an unwanted advance from a person of the same sex.

An article by Jeannie Suk Gersen: Had Brett Kavanaugh not been accused of sexual assault, one of the first cases he would have heard as a Supreme Court Justice would have been that of Herman Gundy, a convicted sex offender. When nominated, last July, Kavanaugh was expected to be confirmed in time for the term that started last October. But the emergence of sexual assault allegations against him delayed his confirmation vote until October 6th, just after the Court’s first set of oral arguments—which included Gundy’s request to invalidate his federal conviction for failure to register as a sex offender. In June, the Court denied Gundy’s petition. As it turns out, Kavanaugh’s absence from the case likely changed its outcome.

Common Knowledge: Zero-L, a new online course, is meant to help all incoming students, including those who don’t have any pre-law background. Collecting on Dreams: As a 2L, Toby Merrill ’11 was enrolled in a Harvard Law School consumer clinic, litigating against predatory lenders of subprime mortgages. Her new mission is no less urgent: fighting for people affected by the predatory lending practices of some for-profit colleges, alleged to provide worthless degrees in exchange for thousands of dollars in government-backed loans. Presidential Power Surges: Particular moments in history and strategic breaks with unwritten rules have helped many U.S. presidents expand their powers incrementally. Are Americans Getting Enough Fiber?: Fiber optic technology, which results in dazzlingly fast and reliable internet connectivity, should be available at a low price to everyone in the U.S., as it is in other countries, argues Susan Crawford.

Burning Man and the federal government have a history of disagreeing over law enforcement tactics, and this year is already off to a rocky start even though the event is two months away. After the release of a more than 300-page report from the Bureau of Land Management that details future expectations of the 80,000-person event, Burners already are protesting possible screenings for weapons and drugs. BLM officials noted in the report that they plan to contract a private security firm to "screen vehicles and participants, vendors and contractors, and staff and volunteers entering the event." Officials have emphasized that the operation will be comprised of screenings, not searches...[According to retired U.S. District Court Judge Nancy] Gertner: A screening could cover a number of activities, but if they pat down people when they come to Burning Man to see if they have drugs, then that’s a search. You can’t call it anything else. If they say to the person, 'Do you have drugs on you?' and they can say 'No,' then that’s arguably not illegal... If all they’re doing is asking a question, then I suppose the inquiry is not a search. If it’s just a conversation, it could pass muster. If it’s any touching or searching bags, that's a search.

Anne Idsal begins this week as EPA's new acting air chief with a full plate of unfinished regulatory actions before her. People tracking EPA's deregulatory proposals don't anticipate Bill Wehrum's abrupt exit last week will have much effect on the pace of work, even as Idsal gets up to speed on the full scope of the agency's ambitious agenda. "It's unlikely that the Air Office's deregulatory tempo will change regardless of Wehrum's departure," said former EPA senior official Joseph Goffman, executive director of the Environmental and Energy Law Program at Harvard Law School, which tracks environmental deregulation under the Trump administration. "The transition from Wehrum to Anne Idsal, a political appointee who had already been serving in the EPA, reminds me of the sports cliche, 'it's next man/woman up' so the game can go on," he wrote in an email.

Industry lawyers praised outgoing EPA air chief Bill Wehrum yesterday for setting limits on Clean Air Act climate rules they hope will outlast the Trump administration. Wehrum, who will leave EPA on Sunday, raised questions with his abrupt exit. But former EPA air chief Jeff Holmstead, who worked with Wehrum in the George W. Bush administration, said his former colleague had planned to depart after work was complete on a replacement for the Obama-era Clean Power Plan carbon rule...Joe Goffman, who served as the air office's top lawyer under Obama and is now at Harvard Law School, said the ACE rule's preamble "read like a brief on behalf of the proposition that the Clean Air Act ... gives EPA next to no authority to do anything." He attributed it to Wehrum. Goffman and others said the air office and its chief, in their zeal to limit what a future administration might do, might have made their own rule more vulnerable.

An op-ed by Gina McCarthy, Janet McCabe and Joseph Goffman:  We were part of the senior team at the Environmental Protection Agency (EPA) during the Obama administration, when the agency's mission truly was to protect the health of American families from dangerous pollution and act on perhaps the greatest challenge of our time: climate change...Had the CPP gone into effect, the EPA's 2015 analysis showed that by 2030 power plant CO2 emissions would have fallen by 32 percent below 2005 levels and the pollutants that cause life-threatening smog and soot would have been reduced significantly. The CPP pollution cuts would have saved thousands of lives and prevented tens of thousands of pollution-related illnesses...In sharp contrast, the Trump administration's ACE will achieve virtually no reductions in CO2 emissions and next to no cuts in soot and smog pollution. It will prevent next to none of the premature deaths, cardiac problems, lung damage or asthma attacks suffered by the most vulnerable among us—our kids, seniors and poor families—that the CPP would have prevented.

The mastermind behind the Trump administration’s pro-coal alternative to Obama’s Clean Power Plan is out, reportedly another victim of an ethics scandal. The Environmental Protection Agency announced Wednesday that William Wehrum, the mercury-loving weirdo who ran the agency’s Office of Air and Radiation, is stepping down by the end of this month. Honestly, good riddance...“Wehrum was an enthusiastic executioner of the Trump EPA’s anti-public health anti-environmental agenda,” said Joe Goffman, who worked on the Clean Power Plan when he worked at the EPA, in a statement emailed to Earther. “To the great harm of the public and the environment, that agenda will roll on regardless of who replaces him.”

An article by Noah Feldman: The U.S. Supreme Court issued an important decision Wednesday narrowly declining to overrule an important doctrine of administrative law, with Chief Justice John Roberts joining the liberal justices solely on the basis of stare decisis — the principle that precedent should be respected, even if you don’t agree with it. For those who care deeply about the future of the administrative state, the first half of that sentence is the interesting one. The court is now fully engaged in an epic battle over whether to dismantle administrative law as we know it. That battle pits the insurgent, activist Justice Neil Gorsuch against the court’s liberals, who are very much on the defensive. In the case decided Wednesday, Kisor v. Wilkie, Justice Elena Kagan managed to pull off a successful piece of counterinsurgent strategy, persuading Roberts not to go over to the rebel side.

An article by Noah Feldman: Chief Justice John Roberts split the baby — again. In a dramatic and complicated opinion in a much watched census case, he first held that the Trump administration’s decision to add a citizenship question to the 2020 census was constitutionally and statutorily permissible and was supported by sufficient evidence. He was joined by the U.S. Supreme Court’s other conservatives. Then Roberts switched course. In a separate part of his opinion, in which he was joined by only the court’s four liberals, Roberts held that Secretary of Commerce Wilbur Ross had not given his true reasons for wanting to ask about citizenship on the census, but had instead given a “pretext” — lawyer-speak for a lie. In this part of the decision, Roberts upheld U.S. District Judge Jesse Furman’s decision to send the census case back to the Commerce Department to give a new (and presumably honest) explanation for its actions.

An article by Noah Feldman: When the 2018 Supreme Court term began in October, all eyes were on the confirmation of the newest justice, Brett Kavanaugh. By the time the term wrapped up in June, the center of attention was Chief Justice John Roberts. And that’s where the focus is likely to stay as long as the court continues in this configuration. So far, the retirement of Justice Anthony Kennedy last summer has not had the effect of turning the court into a reliable forum for 5-4 decisions with the conservatives on top. Instead, Roberts seems to be embracing the role of the centrist — as he did most prominently in this term’s marquee case, blocking (at least temporarily) President Donald Trump’s administration from adding a citizenship question to the 2020 census. Not every swing voter is the same, however. Roberts is extremely different from Kennedy.

An article by Cass Sunstein: The Supreme Court term that ended this week had a large number of high-profile cases. But many of its decisions involved the relatively technical field of administrative law, which sets out legal restrictions on the power of federal agencies. It has profound effects on people’s lives, and it is often the subject of intense judicial debates. The court’s most far-reaching ruling settled a long-disputed question: If an agency issues an ambiguous regulation – involving clean air, food safety or civil rights – who gets to sort out the ambiguity? The agency or a court?

Mark Zuckerberg, chief executive and co-founder of Facebook Inc., endorsed federal privacy legislation and greater regulation of political advertising, even as he cast governments as too slow to address many of the internet’s thorniest problems. In an appearance at the Aspen Ideas Festival in Colorado on Wednesday, Mr. Zuckerberg said the company was racing to solve problems such as misinformation and how best to police online content. He expressed hope that governments would ultimately build a framework for tackling those matters....Speaking with Cass Sunstein, a Harvard professor and an occasional Facebook consultant, Mr. Zuckerberg expressed frustration both with calls to break up the company and with the U.S. government’s handling of Russia’s attempts to influence the 2016 election.

On stage at the Aspen Ideas Festival, Mark Zuckerberg addressed a range of topics that have put the company in the center of a political firestorm, from election security to content moderation and monopolistic power. In conversation with Harvard Law Professor Cass Sunstein, Zuckerberg said he wants to create more external standards so that private companies are not making morally complex decisions by themselves.

The US-China trade war rages on and dominates conversation ahead of the G20 summit this week. A US veto of appeals judges at the World Trade Organisation threatens to bring that cornerstone of the global economic order to a standstill by December, a month out from its 25th anniversary...Harvard Law School professor Mark Wu says the complexity of negotiations will delay any potential agreement. "The frustration that the US and possibly others have faced in relying upon the WTO to deal with its China-related trade challenges stems, in part, from the lack of a thorough updating of WTO rules over the past two decades," he says.

After 15 years trying to connect the world, Facebook Inc. is attempting to set up a better system for providing oversight of its sprawling platform. That effort is proving to be far from simple. The social-media giant on Thursday published a report on its efforts to create an independent content oversight board to examine some of its most controversial content moderation decisions...On Thursday, Facebook released Mr. Zuckerberg’s video discussion with two experts about governance: Noah Feldman, a professor of law at Harvard University who has been advising Facebook on the design of its oversight board, and Jenny Martinez, a human rights lawyer and dean of Stanford Law School.

It’s been roughly six months since Facebook started collecting global feedback on its proposal to create an oversight board for content moderation decisions. This morning, the platform released the findings of that process in an epic report—almost 250 pages of summary, surveys, public comment, workshop feedback and expert consultations...The report begins by outlining the (relatively short) history of the idea of an oversight board: the process began with Harvard Law Professor Noah Feldman pitching the idea to Facebook in early 2018, followed by CEO Mark Zuckerberg first publicly floating the idea of a Facebook “Supreme Court” on a podcast in April 2018.

Every week it seems there is a new controversy about content on tech platforms...In November, Facebook announced the most ambitious and proactive idea of how to deal with these issues and rebuild trust in the way these consequential decisions are being made. It proposed an independent Oversight Board to hear disputes regarding the platform’s Community Standards and give transparent and binding decisions...Though multiple people have called for an appeals process and transparencyin Facebook’s content moderation process for years, the report cites a game-changing white paper by Harvard Law professor Noah Feldman written in March 2018. In remarks made public for the first time in the report, Feldman calls for the creation of a “Supreme Court to protect and define free expression and association on Facebook. Along with a lower appeals court, the court would interpret and apply an iconic, one-sentence values commitment that Facebook would adopt.”

As a junior in college, Delaney Dunne took an internship for class credit and $10 an hour at co-working company TekMountain in Wilmington, N.C. On graduation day this year, she received a letter from TekMountain’s parent asking about her employment status and reminding her she had signed a noncompete agreement with TekMountain in November 2017 that restricted her employment options...“The idea of noncompetes for interns is ludicrous,” said Terri Gerstein, a Harvard University academic who previously served in the New York attorney general’s office. “Internships are supposed to be for educational and professional development, and are about expanding—not limiting—job opportunities.” She said it is unlikely intern noncompete agreements would be upheld in court in most states.

Earlier this year, Chinese President Xi Jinping addressed a crowd gathered for the second summit of his signature infrastructure policy, the Belt and Road Initiative (BRI)...With the BRI, Xi is signaling China’s readiness to reprise a more proactive geopolitical role, according to Harvard Law professor and international trade expert Mark Wu. “President Xi, much more than his predecessors, is assertive of this idea of the China dream — part of [which] is about national rejuvenation and China rightfully stepping back onto the global stage,” he said.