Let’s hear it for the judges for dismissing Trump’s lawsuits

An op-ed by Laurence H. Tribe and Joseph R. Grodin: President Trump’s cynical effort to enlist the courts in his attempt to retain power has failed miserably. Claims of voter fraud and other theories advanced on his behalf have consistently been rebuffed by judges of all political backgrounds, including judges with conservative reputations and federal judges appointed by Republican presidents — including Trump himself. While there are still a handful of cases pending, it is the consensus among lawyers and legal scholars that they are at best on tenuous life support. Trump’s apparent scheme to get a case to the US Supreme Court, with the all but explicit expectation that the justices that he has appointed will somehow join in supporting his fanciful claim of victory in the November election out of loyalty to him or his political cause, is almost certainly destined to defeat. At this time, there are no cases on their way to the Supreme Court that are likely to be heard or to matter. Nor is there any indication that the justices would do anything but follow the law, which is entirely clear on all the issues thus far raised in the dozens of lawsuits that Trump’s rapidly changing team of attorneyshas brought and, in virtually every instance, lost. On Jan. 20, Joe Biden will be sworn in as our next president, and this phase of Trump’s assault on the rule of law, on the peaceful transfer of power that has characterized our nation ever since John Adams passed the torch to Thomas Jefferson in 1801, and on our constitutional republic will be history.

Why gig companies should be scared of a Biden administration

Forget regulating Big Tech: Gig economy companies could face the industry’s most aggressive government regulation during a Biden administration. Tech lobbyists and labor experts told Protocol that gig companies are gearing up for an expensive, existential battle with the Biden administration. They know that an antagonistic Biden Labor Department has the ability to override state efforts to limit gig workers’ rights, and experts described to Protocol how that could play out…The NLRB, which handles the question of who has a right to unionize, could issue a rule about whether gig workers are employees under the National Labor Relations Act or adjudicate an unfair labor practice charge from a group of gig workers trying to unionize. “That’s two routes [at the NLRB] to the same outcome, which is ‘drivers are employees,'” said Benjamin Sachs, a professor of labor and industry at Harvard Law School. “Once that determination was made, every Uber and Lyft driver everywhere in the country would have the right to form a union.” But the NLRB process will likely be stalled as Democrats wait for the tenure of NLRB general counsel Peter Robb — who has sided with gig companies on the question of worker classification — to expire in November 2021.

Is This Controversial COVID-19 Injection Unsafe?

Infectious disease epidemiologist Dr. Monica Gandhi and Harvard Law professor and bioethics expert Glenn Cohen join Dr. Ian Smith to discuss taking thymosin alpha-1, a treatment that might show promise but is not FDA approved. Dr. Gandhi shares that she’s really concerned about people taking thymosin alpha-1 because it could lead to something far worse than COVID-19. Plus, Glenn shares that it’s actually unlawful for companies to promote this treatment.

A wave of evictions is on the horizon. What impact could they have on kids’ education?

There were new additions to classrooms when schools opened this fall. There were plastic shields and cloth facemasks, hand sanitizer and login instructions when learning went online. But something was missing — tens of thousands of students. The coronavirus pandemic has pushed kids out of school for various reasons: health concerns, a parent losing a job causing the family to move, a lack of internet or devices for virtual learning. Because there is no national database, 60 Minutes compiled enrollment data from 78 of the largest school districts in the country and found nearly a quarter of a million students did not showed up when school began. Now, social workers who have spent the last three months searching for those kids expect their job is about to get much harder. A national pause on most evictions is set to expire at the end of the year, and without those protections, children without a home could translate to more students missing from the classroom…While housing insecurity has been a growing concern for years, the pandemic has heightened it. Three quarters of the people who are behind on rent say they cannot make payments because they have experienced an employment-related loss of income. “The pandemic hit on a deep housing affordability crisis and exacerbated the challenges Americans have paying rent,” COVID-19 Eviction Defense Project co-founder Sam Gilman ’22 told 60 Minutes. “They were one emergency away from not being able to pay rent, and the pandemic was that emergency.”

Trump Campaign Appeals Dismissal of Pennsylvania Election Suit

President Donald Trump’s campaign filed notice that it was appealing the dismissal of a federal lawsuit that aimed to block Pennsylvania from certifying its election results unless the state invalidated tens of thousands of mail-in ballots. The campaign’s filing on Sunday, with the U.S. Court of Appeals for the Third Circuit in Philadelphia, had been expected. Trump attorney Rudy Giuliani has said the case should be decided by the U.S. Supreme Court, which has a 6-3 conservative majority. The move is unlikely to stop Pennsylvania from certifying President-elect Joe Biden’s victory in the state as soon as Monday. Trump has said his goal is to “decertify” the state’s results one way or another…Brann ruled both that the Trump campaign lacked standing to sue, and that it had not raised a valid equal-protection claim since Pennsylvania counties were not prohibited under state law from letting voters fix minor ballot errors. “It’s not law, it’s theater and it’s not very good theater,” Harvard Law School Professor Laurence Tribe, a frequent critic of Trump, said in a telephone interview. “It’s dangerous and damaging theater because it undermines the confidence of millions of people in our electoral system and legal system” for the president to be “bouncing in and out of court making outlandish claims,” he said. Tribe also said he doesn’t believes the Supreme Court would overturn Brann’s decision, even if it were to agree to hear the case.

FERC Dissents Reveal Continued Political Tension on Clean Energy Policy

Thursday’s meeting of the Federal Energy Regulatory Commission started off with expressions of comity between its three commissioners. It ended with another round of dissents from its sole Democrat, who warned of possible legal challenges to FERC decisions approved by its Republican majority over his objections. Questions of political pressure on the avowedly nonpartisan agency have swirled around FERC over the past weeks after the Trump administration demoted Neil Chatterjee from his two-year tenure as FERC chairman to appoint fellow Republican James Danly to the leadership position…Ari Peskoe, director of the Electricity Law Initiative at Harvard University, noted that FERC’s subsequent actions to impose even more problematic restrictions on state-subsidized resources in the capacity market of mid-Atlantic grid operator PJM may strengthen legal challenges to ISO-NE’s CASPR construct. “One of the key legal issues in both proceedings is FERC’s authority to address state policies,” he wrote in a Thursday email. “FERC went further in PJM, and perhaps clean energy interests will be able to make more convincing arguments based on those facts.”

The Electoral College: Keep or Replace? A Soho Forum Debate

When Donald Trump won the presidential election in 2016 even though 2.8 million more people voted for Hillary Clinton, everyone from Bill De Blasio, to Michael Moore, to Eric Holder and Bill Maher said that at long last we should abolish the electoral college. Then-California Senator Barbara Boxer introduced a bill to amend the U.S. constitution to do just that. A Gallup poll from September of this year showed that 61 percent of Americans support abolishing the electoral college in favor of a national popular vote, although it’s an issue that breaks along partisan lines. 77 percent of Republicans want to keep the electoral college, while 89 percent of Democrats said that we should get rid of it. Is the electoral college the best system for electing a president? That was the subject of an online Soho Forum debate held on Wednesday, November 11, 2020. Richard Epstein, a law professor at New York University, defended the system against Lawrence Lessig, a law professor at Harvard. Soho Forum director Gene Epstein moderated. Lessig won the Oxford-Style debate by gaining 14.29 percent of the audience’s support. Epstein lost 2.04 percent of his pre-debate votes.

Mass. Gov. On Safe Legal Ground If Strict Virus Rules Return

The resurgence of COVID-19 in Massachusetts could prompt Gov. Charlie Baker to again impose aggressive restrictions on businesses using a decades-old statute, but legal experts say courts are likely to give him broad deference in combating the public health crisis. Baker was one of many governors to impose sweeping business closures and other measures in the spring when the virus first surged in the Bay State. Despite the governor’s broad popularity, a number of the emergency orders enacted under the Civil Defense Act have drawn legal challenges. While Baker’s record in these suits has not been perfect, experts told Law360 the courts are likely to defer to his authority should he decide to snap restrictions back into place. “While there are limits, the emergency powers mirror the nature of the emergency,” said Nancy Gertner, a former federal judge and current Harvard Law School professor, adding that a crisis like COVID-19 would be reviewed by looking at the rational basis of the measures imposed. It’s a standard she said the governor is likely to meet. “This is not like mandating motorcycle helmets, which is a public health issue but affects everyone else around the motorcyclist only tangentially in terms of insurance rates and visits to emergency rooms,” Gertner said. “This is a direct link where what you do affects me.”

Tucker Carlson Dared Question a Trump Lawyer. The Backlash Was Quick.

For more than a week, a plain-spoken former federal prosecutor named Sidney Powell made the rounds on right-wing talk radio and cable news, facing little pushback as she laid out a conspiracy theory that Venezuela, Cuba and other “communist” interests had used a secret algorithm to hack into voting machines and steal millions of votes from President Trump. She spoke mostly uninterrupted for nearly 20 minutes on Monday on the “Rush Limbaugh Show,” the No. 1 program on talk radio. Hosts like Mark Levin, who has the fourth-largest talk radio audience, and Lou Dobbs of Fox Business praised her patriotism and courage. So it came as most unwelcome news to the president’s defenders when Tucker Carlson, host of an 8 p.m. Fox News show and a confidant of Mr. Trump, dissected Ms. Powell’s claims as unreliable and unproven…A question for conservative media that are more independent of Mr. Trump is how much of the market the unabashedly pro-Trump media dominates in the future. Some scholars said they expected that audience to be substantial. “Drudge and Fox can try to pull back from the abyss,” said Yochai Benkler, a professor at Harvard Law School who studies conservative media. “But the audience is going to get what it wants and reward those who give it to them.”

Biden Faces Moral Imperative to Advance Climate Regulations

From the beginning of his presidency, Donald Trump wasted no time establishing a deregulatory agenda as one of the top priorities for his administration. Just 10 days after taking office, he signed an executive order requiring that two federal regulations be rescinded for every new regulation implemented. “The American dream is back,” he said in a statement from the Roosevelt Room.  In the years that followed, it became clear who was to benefit, and who was to lose, from Trump’s American dream.  His administration has rescinded, rewritten, or replaced over 100 environmental protections, rules, and regulations that reduce toxic pollution and industrial waste, protect endangered species, and draw down the greenhouse gas emissions that are accelerating a global climate crisis… “What happened under the Trump administration exposed all of the ways that interpretations of these statutes could be pushed to extremes. The Biden administration can learn from that,” Caitlin McCoy, a staff attorney at the Environmental and Energy Law Program at Harvard University, told Sierra. “It’s not just about putting things back together or returning to the status quo. We need to strengthen regulations, because the climate crisis has accelerated dramatically over the last four years, and we have failed to take action on a federal level. This is an incredible opportunity to think creatively about how we can insulate these rules and regulations from future changes.”