Media Mentions

The number of spills and other mishaps at oil and gas sites fell sharply again last year, in line with decreased drilling...Many wells had repeated spills, and the study found that wells that have already had a spill are more likely than others to have another. In Colorado, for example, a spill is 4.6 times as likely at a well that has already had one. Patterson's co-author, Kate Konschnik, director of Harvard Law School's Environmental Policy Initiative, said that could help state agencies prioritize wells for inspection. "There is a tendency to have repeat spills," Konschnik said. "The state should be targeting sites that have already had a spill."

An op-ed by Susan Crawford. Microsoft recently made a Very Serious Announcement about deploying unused television airwaves to solve the digital divide in America. News outlets ate it up: "To Close Digital Divide, Microsoft to Harness Unused Television Channels," said the New York Times on July 10, in a headline that could have been written by the PR folks in Redmond. The Washington Post pegged both a really big number and a year on the plan: "Microsoft wants to bring 2 million rural Americans online by 2022," wrote Hamza Shaban and Brian Fung on July 11....Microsoft's plans aren't really about consumer internet access, don't actually focus on rural areas, and aren't targeted at the US—except for political purposes.

A federal judge in New York ruled last week that the Empire State’s plan to subsidize nuclear power plants “is constitutional” and “of legitimate state concern.” It’s a significant win for the nation’s largest nuclear fleet owner Exelon, which has been struggling to keep its money-losing power plants operational amid weak electricity demand and low energy prices. But the ramifications of last Tuesday’s decision go well beyond the legality of New York’s nuclear program...“Courts have upheld three programs in one month, all confirming states have authority to favor certain types of generation and use financial incentives to effectuate those preferences,” said Ari Peskoe, senior fellow in electricity law at the Harvard Law School Environmental Law Program Policy Initiative.

In April, scientists achieved a major breakthrough that could one day drastically improve the fate of babies born extremely prematurely. Eight premature baby lambs spent their last month of development in an external womb that resembled a high-tech ziplock bag. At the time, the oldest lamb was nearly a year old, and still seemed to be developing normally. This technology, if it works in humans, could one day prove lifesaving for the 30,000 or so babies each year that are born earlier than 26 weeks into pregnancy. It could also complicate—and even jeopardize—the right to an abortion in an America in which that right is predicated on whether a fetus is “viable.” “The Supreme Court has pegged the constitutional treatment of abortion to the viability of a fetus,” I. Glenn Cohen, a Harvard Law School bioethicist, told Gizmodo.

Twenty hours of tense debate among the U.S. senators ended with the rejection of the “skinny repeal” bill — a major setback to President Donald J. Trump and the Republican Party’s plan to repeal and replace the Affordable Care Act...Caitlin McCormick-Brault, associate director of the Center for Health Law and Policy Innovation of Harvard Law School, suggested that “the appetite for continued health care debate is rather low at this point given what both chambers have been through in this round.”

An op-ed by Nancy Gertner. The playbook was familiar. First came the over-the-top campaign attacks on sanctuary cities. Then the rushed executive order warning sanctuary cities that they will not get any federal money, at any time, for anything, unless they cooperate with federal immigration policies. Since the threat was so out of line with the Constitution, so inconsistent with the separation of powers between the executive and legislative branches, let alone principles of federalism, it was immediately challenged. The Constitution vests spending powers in the Congress, and the Congress alone. It’s Congress that appropriates the money and sets conditions on its use. The president cannot just make up new rules for appropriated money.

An op-ed by Cass Sunstein. Can a sitting president be prosecuted? Might Donald Trump, or any president, face the prospect of jail? A memorandum of law, written in 1998 but released last week, concludes that the answer is a qualified “yes.” The memorandum was written by Chapman University law professor Ronald Rotunda, who was then at the University of Illinois, for Kenneth Starr, the independent counsel appointed to investigate President Bill Clinton. Rotunda’s memorandum is learned, illuminating and impressively detailed. The issue is both tough and unsettled. But there’s a better answer: an unqualified “no.”

If President Trump ordered a senior government official to support the firing of special counsel Robert S. Mueller III, how should that person respond?...Presidential orders cannot ordinarily be ignored or dismissed. Our system gives the commander in chief extraordinary power. Jack Goldsmith, a Harvard University law professor and former assistant attorney general, explained in an email: “A subordinate in the executive branch has a presumptive duty to carry out the command of the president. If one doesn’t want to for any reason, one can resign — or refuse the order and face a strong likelihood of being fired.”

An op-ed by Noah Feldman. The short life of Anthony Scaramucci as White House communications director will be remembered with joy by some, or at least by me. His unbridled self-expression, in the grandest traditions of the First Amendment and the New York street corner, was more like a tornado of fresh air than a mere breath. But the era of the Mooch was also guaranteed to be as brief as the life of a mayfly -- for a serious reason. Important jobs like managing the president’s relationship with the press come with norms and customs: unwritten rules that shape social relations in every culture, and that are based on cumulative wisdom and many decades (sometimes centuries) of trial and error.

...Cable providers are among the most despised businesses in the country, regularly coming in below airlines, banks, and drug companies in public-opinion polls. A mini industry of intermediaries has sprung up to help consumers deal with the providers’ notoriously terrible customer service, offering to negotiate bills and publishing online scripts for getting rates cut (“The fleecing of the U.S. continues!” a representative comment reads)...Cable is essentially a monopoly now in urban areas,” Susan Crawford, a professor at Harvard Law School and a former policy adviser to President Obama on science, technology, and innovation, told me.

Bankruptcy protections tailored to large financial institutions in crisis are back on the agenda in Congress, but using Chapter 11 in these situations has its drawbacks, some scholars and practitioners say. Bipartisan legislation passed by the House and now wrapped into a larger appropriations measure may improve its chances in the Senate if it should get there...Mark J. Roe, a professor at Harvard Law School, believes so strongly that bankruptcy alone can’t handle a financial crisis from collapsed banks that he and co-author Jeffrey Gordon of Columbia Law School wrote congressional leaders. Their May 23 letter was endorsed by 120 financial market and bankruptcy academics...“To repeal OLA and its supporting provisions would be a dangerous error,” Roe and Gordon state in the letter. FIBA in its current state, however, doesn’t repeal OLA. One of the main problems with FIBA is that it “doesn’t allow the regulators to start the bankruptcy,” Roe told Bloomberg BNA July 14.

An op-ed by Trey Herr and Bruce Schneier. Software and computer systems are a standard target of intelligence collection in an age where everything from your phone to your sneakers has been turned into a connected computing device. A modern government intelligence organization must maintain access to some software vulnerabilities into order to target these devices. However, the WannaCry ransomware and NotPetya attacks have called attention to the perennial flipside of this issue—the same vulnerabilities that the U.S. government uses to conduct this targeting can also be exploited by malicious actors if they go unpatched.

An interview with fellow Jessamyn West. Among many other records, Vermont can boast more public libraries per person than any other state in the union. How those libraries get their funding is far from uniform; it can vary greatly from town to town. We're talking about how libraries get the money they use, how they deal with funding challenges, and how it all affects the services they offer to Vermonters.

In this, the summer of our discontent, many college presidents are breathing a sigh of relief that they made it through a politically fraught spring without their campuses erupting...Law deans, in sharp contrast, have reason to be cheery. Their campuses have been largely exempt from ugly free-speech incidents like these...There may be a reason why law students haven't resorted to the extreme tactics we've seen on college campuses: their training. Law school conditions you to know the difference between righteousness and self-righteousness...The rituals of respect shown inside and outside the courtroom come from this training. Those rituals are so powerful that they can trump even the deepest divides. As Kenneth Mack recounts in his book Representing the Race: The Creation of the Civil Rights Lawyer, Thurgood Marshall was able to do things in court that a black man could never do in any other forum, like subjecting a white woman to cross-examination.

Jared Kushner, the son-in-law of Donald Trump, who acts as his senior White House adviser, secured a multimillion-dollar Manhattan real estate deal with a Soviet-born oligarch whose company was cited in a major New York money laundering case now being probed by members of Congress. A Guardian investigation has established a series of overlapping ties and relationships involving alleged Russian money laundering, New York real estate deals and members of Trump’s inner circle...Constitutional experts are also demanding an official inquiry. “We need a full accounting by Trump’s justice department of the unexplained and frankly outrageous settlement that is likely to be just the tip of a vast financial iceberg,” said Laurence Tribe, Harvard University professor of constitutional law.

President Trump is considering pardoning family members and staffers caught up in the Russia investigation, but legal experts warn that it could backfire by making it harder for them to avoid testifying. Under the Fifth Amendment to the Constitution, Americans are protected against self-incrimination, but people who have been pardoned are no longer under any legal jeopardy, Harvard Law School Professor Laurence Tribe told TIME. "Anyone pardoned by Trump would lose most of the 5th Amendment’s protection against compelled testimony that might otherwise have incriminated the pardoned family member or associate, making it much easier for DOJ and Congress to require such individuals to give testimony that could prove highly incriminating to Trump himself," Tribe said in an email.

President Trump’s lawyers are exploring the potential uses of presidential pardons — including whether the president can pardon himself — as part of an effort to undermine special counsel Robert Mueller’s Russia investigation, according to a new Washington Post report. I reached out to 15 legal experts and asked them if the president has the constitutional authority to pardon himself. As it turns out, this is something of a legal gray area... [Mark Tushnet]: The president's constitutional power to pardon "offenses against the United States" is limited only by excluding "cases of Impeachment." A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding.

An op-ed by Noah Feldman. Having failed to repeal the Affordable Care Act, President Donald Trump is now stating openly that his plan is to let Obamacare fail instead. Although the end result may be the same, there’s a vast difference between these two options, constitutionally speaking. Repeal is a normal legislative initiative, completely within the power of Congress and the president. But intentionally killing a validly enacted law violates the Constitution’s order that the president “shall take care that the laws be faithfully executed.”

An op-ed by Cass Sunstein. All over the world, private and public institutions have been adopting “nudges” -- interventions that preserve freedom of choice, but steer people in a particular direction. A GPS device nudges you. So does a reminder from your doctor, informing you that you have an appointment next Wednesday; an automatic enrollment policy from your employer, defaulting you into a 401(k) plan; and a calorie label at fast-food restaurants, telling you that a cheeseburger won’t be great for your waistline. Recent evidence demonstrates that nudges can be amazingly effective -- far more so, per dollar spent, than other tools, such as economic incentives. But a big question remains: Across different nations, do nudges have the same impact? Here’s a cautionary note.

An op-ed by Jack Goldsmith. We don’t yet know why Mark Corallo, the spokesman for President Trump’s personal legal team, resigned yesterday. Politico, citing anonymous…

A judge in Tennessee is giving inmates a unique way to reduce their sentences: Have a vasectomy. The program was issued in May after Judge Sam Benningfield signed a standing order, which permitted inmates to have their sentences shortened by 30 days in exchange for the sterilizing procedure...Glenn Cohen, a professor at Harvard Law School, said the program was a "bad policy," and pointed to prior court rulings, which set a precedent that could make Benningfield's order unconstitutional. "The approach of this judge is constitutionally questionable. In Skinner v. Oklahoma, the Supreme Court indicated it violated the Constitution to impose sterilization as a punishment for a criminal," Cohen wrote in an email. "This case is slightly different, though, in that it involves sentencing."