Laurence Tribe

Americans, if your postprandial football game or James Bond movie marathon is interrupted — again and again — by presidential primary ads on Thursday, do not blame Citizens United, the 2010 Supreme Court ruling that opened a gusher of campaign cash. Blame instead a little-reported lower-court decision argued just days after Citizens United, which gave rise to the phenomenon of the super PAC, and which the Supreme Court, surprisingly, has never reviewed....Harvard Law professor Laurence Tribe last week called it “comical” that super PAC contributions would be treated differently than contributions to the candidates themselves, since the supposed independence of the committees is little more than a fig leaf...The situation may be comical, but it’s also deeply damaging; Tribe called it “the plutocratic takeover of our politics.” Along with two other constitutional scholars who spoke on a panel convened by the campaign reform organization Free Speech for People (and which I moderated), Tribe believes that the SpeechNow decision is vulnerable to being overturned should a challenge be brought to the Supreme Court.

Half the state governors in America are constitutionally ignorant or shamefully demagogic. Most likely it's the latter, but some may be both..."I've gotten past the point of being astounded by grandstanding," constitutional scholar Laurence H. Tribe told me. "I'm sure they know better. But by their calculations, they have nothing to lose by joining a bandwagon that can't move. "It's not something a governor who cares about the law would do in great conscience, but I wonder how many governors really give a damn." I asked Tribe, a Harvard constitutional law professor who has argued scores of cases before the U.S. Supreme Court, whether governors have any control over immigration. "None," he replied. "Absolutely none. Federal law is supreme."

In the wake of the Paris terrorist attacks, more than half the nation's states are vowing to bar Syrian refugees. But do they have the legal authority to do so? Harvard Law professors say the answer is clear: No.

Amid a growing controversy involving questions of accuracy and fairness, the makers of The Hunting Ground, a documentary indictment of campus sexual assaults, are defending the film, which is set to air on CNN on Nov. 22...On Nov. 19, law professors at Harvard, where another of the film’s documented incidents took place, attacked the filmmakers’ accuracy in a widely publicized joint letter that focused on the victim’s inebriation and the absence of violence in the assault. The professors wrote in a letter that was posted on The Harvard Law Record website that the film gave the impression that the accused student "like others accused in the stories featured in the film, is guilty of sexual assault by force and the use of drugs on his alleged victims, and that he, like the others accused, is a repeat sexual predator.” The professors, including prominent faculty members Jeannie C. Suk, Laurence Tribe and Randall Kennedy, noted that there have been "extensive investigations and proceedings" examining the case against the student -- at Harvard Law School, in a criminal case before the grand jury, and in criminal trial before a jury.

Governor Charlie Baker joined more than two dozen other governors Monday who said they did not want Syrian refugees to resettle in their states, citing security concerns after the deadly terrorist attacks in Paris....Under federal law, the president, after consulting with Congress, sets the number of refugees admitted every year and the government works with the United Nations and nonprofits to resettle refugees around the United States. “Neither Massachusetts nor any other state can fence Syrian refugees out of the state,” said Laurence Tribe, a Harvard constitutional law scholar. “We are a union and must sink or swim together.”

Republican fury over illegal immigration and border security took on a new dimension Monday as a growing number of governors, presidential candidates and members of Congress rushed to oppose or even defy President Obama’s plan to resettle 10,000 Syrian refugees. Twenty-five Republican governors vowed to block the entry of Syrian refugees into their states, arguing that the safety of Americans was at stake after the Paris attacks by terrorists including a man who entered Europe with a Syrian passport and posed as a migrant...Governors can ask the State Department, the primary agency managing the refugee program, not to send Syrians to their states. But some legal scholars were adamant that the governors’ efforts to bar Syrians on their own were unconstitutional. “This is an exclusively federal issue,” said Laurence H. Tribe, a professor of constitutional law at Harvard University. “Under our Constitution, we sink or swim together,” he said.

The veracity of one of this year’s most talked about documentaries, “The Hunting Ground,” has been attacked by 19 Harvard Law School professors, who say the film’s portrayal of rape on college campus is distorted, specifically when it comes to their school’s handling of one particular case...“The documentary has created an important conversation about campus sexual assault,” said Diane L. Rosenfeld, a Harvard law lecturer who also appears in the film and did not sign the letter. “We need to be rolling up our sleeves and really figuring out what kind of preventative education programs to develop which create a culture of sexual respect.” But in their letter, the law professors, who include Laurence H. Tribe, Randall L. Kennedy and Jeannie C. Suk, said the film “provides a seriously false picture both of the general sexual assault phenomenon at universities and of our student,” specifically a male Harvard law student whose case is included in “The Hunting Ground.”...“This is a young human being whose life has been mauled by this process for years, and now he has to walk around campus with people saying, ‘Oh, you’re a repeat sexual offender,’ and he’s not,” said Janet Halley, one of the letter’s authors. “It’s not a documentary. It’s propaganda."

An op-ed by Laurence Tribe. The principle of “equal dignity in the eyes of the law” articulated by the Supreme Court’s extraordinary same-sex marriage ruling in Obergefell v. Hodges earlier this year — that all individuals are deserving in equal measure of personal autonomy and are entitled not to have the state define their personal identities and social roles — lays the groundwork for an ongoing political and legal dialogue about the meaning of equality and an evolving understanding of the indignities that our Constitution cannot tolerate. In securing these dignitary rights of all people, Obergefell is an important landmark. But it cannot be the last word if Obergefell’s push for equal dignity for LGBTQ individuals is to point a way forward in the unending struggle for equal rights for all. If that doctrine is to signal the beginning of the end for discrimination on the basis of sexual orientation, gender identity, and gender expression – in the workplace, in housing and education, in athletics and public accommodations, in immigration and adoption, and in the construction of families — then the struggle will have to be waged not just in the courts but in regulatory and legislative bodies, as well as in the cultural arena of public discourse.

Harvard Law School professor Laurence H. Tribe ’62 argued Monday that holding the U.S. Supreme Court’s decision in the 2010 case Citizens United v. FEC primarily responsible for campaign finance issues is “a dangerous oversimplification.” In a large Law School classroom where attendees outnumbered seats, a discussion dubbed “If Citizens United Isn’t the Problem, What’s the Solution?” centered on the 2010 ruling that the government could not restrict independent political expenditures by nonprofit corporations. “The American people are disgusted by the current state of campaign finance,” Tribe said, but he argued that focusing the narrative of American political ills on Citizens United would increase political cynicism and alienation without addressing real issues.

With the Supreme Court poised to reconvene the first Monday in October, let’s clear the air about last term’s supposed turn to the left: It didn’t happen....Laurence Tribe, the preeminent appellate advocate and co-author of Uncertain Justice: The Roberts Court and the Constitution, warns against the entire endeavor of “trying to measure the left/right swing of the Supreme Court by bracketing its annual terms.” Lumping decisions together from one April Fool’s Day to the next would be no less arbitrary. “This is a set of nine justices whose views can best be represented by vectors pointing every which way,” Tribe says.

Two former Republican governors joined an impressive array of law professors, education scholars, teachers of the year, civil rights advocates and state and civic leaders submitting briefs on both sides of the appeal of the Vergara lawsuit. Last week was the deadline for experts supporting or opposing the lawsuit to submit friend of the court briefs, called amicus curiae, to the judges of the Second District of the California Court of Appeal. The court will review the landmark ruling of Los Angeles Superior Court Judge Rolf Treu, who struck down five state teacher protection statutes affecting tenure and the processes for teacher dismissal and layoffs based on seniority...Law professors supporting the ruling: Laurence Tribe of Harvard Law School, Rachel Moran of UCLA Law School and Dawinder Sindhu of University of New Mexico School of Law submitted the brief. (Full brief here.)...Law professors opposing the ruling: Dean Irwin Chemerinsky and Catherine Fisk of UC Irvine Law School, Charles Ogletree of Harvard Law School, and Pam Karlan of Stanford Law School submitted the brief. (Full brief here.)

A macaque monkey who took now-famous selfie photographs should be declared the copyright owner of the photos, rather than the nature photographer who positioned the camera, animal-rights activists contend in a novel lawsuit filed Tuesday. The suit was filed in federal court in San Francisco by People for the Ethical Treatment of Animals. It seeks a court order allowing PETA to administer all proceeds from the photos for the benefit of the monkey, which it identified as 6-year-old Naruto, and other crested macaques living in a reserve on the Indonesian island of Sulawesi...Laurence Tribe, a Harvard Law School professor who supports animal rights, expressed misgivings about the litigation. “It trivializes the terrible problems of needless animal slaughter and avoidable animal exploitation worldwide for lawyers to focus so much energy and ingenuity on whether monkeys own the copyright in selfies taken under these contrived circumstances,” he said.

Former Govs. Pete Wilson and Arnold Schwarzenegger and constitutional scholar Laurence Tribe joined the legal attack on California’s teacher tenure laws Wednesday, telling a state appeals court the job-security and seniority statutes leave some of the state’s neediest students in the hands of incompetent teachers...No other state allows “such lopsided school laws which favor teacher interests over the rights of students,” said a second brief coauthored by Tribe, a Harvard law professor with liberal leanings whose students have included future President Barack Obama and U.S. Chief Justice John Roberts. Other academics who signed the brief included Rachel Moran, a UCLA law school professor and former dean.

...Indeed, less than 20% of the provisions relate to trade – the rest are economic and political issues. Obama's law mentor, Harvard professor Laurence Tribe together with other very senior US law experts agree that this is not a trade agreement. "It's about intellectual property and dispute settlement; the big beneficiaries are likely to be pharma companies and firms that want to sue governments."

Eric Holder Jr. has returned home to Covington & Burling after more than six years as U.S. attorney general, and he said it is the “last stop” in his legal career. He even ruled out a U.S. Supreme Court appointment, if he is asked...."There's no question that there needs to be more pro bono across the board. I started at the Justice Department this office called the Access to Justice Initiative, which we started out with [Harvard Law School professor] Larry Tribe. That was in recognition of the fact that too many people in this country make consequential legal decisions without the assistance of counsel. It's a shocking thing to see. You have juveniles who plead guilty without ever talking to a lawyer. You have child-custody disputes that are resolved oftentimes in front of a judge but without a lawyer."

The Supreme Court issued two historical decisions last week—one upholding the Affordable Care Act, and the other legalizing same-sex marriage across all fifty states. Laurence Tribe, professor at Harvard Law School and most recently author of "Uncertain Justice: The Roberts Court and the Constitution," is perhaps uniquely qualified to discuss matters of the court: he had two of its members, Chief Justice John Roberts and Justice Elena Kagan, as students. (You may also be familiar with his former research assistant, now-President Barack Obama.) Tribe joined Jim Braude and Margery Eagan in Studio 3.

Following the Supreme Court’s landmark decision Friday that same-sex couples have a constitutional right to marriage, several Harvard Law School professors said Justice Anthony M. Kennedy, who authored the majority opinion, played an extraordinary role in advancing the cause. “The majority opinion by Justice Kennedy was a triumph of reason and passion alike,” Law School professor and former Supreme Court clerk Laurence H. Tribe ’62 wrote in an email. ... Law School professor Michael J. Klarman wrote that Friday’s decision “confirms the extraordinary influence” of Kennedy, adding that he believes Kennedy is “the most powerful justice in history.” ... Law School professor Richard H. Fallon agreed that people opposed to same-sex marriage may be angry about the verdict, they are unlikely to act politically, given a shift in public support for same-sex marriage in recent years.  

...The Supreme Court’s three highest-profile decisions since Roberts became the top justice were all decided in favor of liberals: It rejected two challenges from the right to President Obama’s Affordable Care Act, including one on Thursday, ensuring 6 million people would keep their health care...“The court is about as deeply divided as the country on the hot-button issues of race, sex, and religion but is more lawyerly and nonideological than the talking heads tend to believe on just about everything else,” said Laurence H. Tribe, a professor of constitutional law at Harvard Law School. To the extent that Roberts has disappointed conservatives, Tribe said that it might be the Republican Party — not their 2005 appointee — that has changed. “The GOP has been moving rightward at a fairly rapid clip on most of the social issues while the Court has remained relatively centrist on everything except issues of LGBT rights, where it has moved leftward, but at a more measured pace than much of the country,” Tribe said.

The chief justice who once mangled President Barack Obama's oath of office has once again helped rescue the president's signature achievement, his health care law. After an awkward first encounter, these two Harvard Law graduates who rose to high positions of power from opposite ends of the political spectrum are bound together in the legacy of a law that the president says has now been "woven into the fabric of America" and that Roberts may not even personally support. It was Roberts who wrote the majority opinion in Thursday's 6-3 ruling that preserved a critical element of the health care law. And it was Roberts who provided the critical vote to uphold the legal underpinnings of the Affordable Care Act in a 5-4 ruling in 2012. "This will be a part of them both," predicted Harvard's Laurence Tribe, the constitutional scholar who once had Roberts as a student and later hired Obama as a research assistant. Tribe, a supporter of the health care law, called it a kind of "kismet" that didn't have to happen that way.