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Mark Tushnet

  • Video: Unexampled Courage 2

    Video: Unexampled Courage

    April 5, 2019

    Harvard Law School recently hosted Judge Richard Gergel, U.S. District Judge of the U. S. District Court for the District of South Carolina, for a talk on his book, "Unexampled Courage,” and a discussion with HLS professors Randall Kennedy, Kenneth Mack and Mark Tushnet.

  • Rep. Devin Nunes’s bizarre $250 million lawsuit against Twitter, explained

    March 20, 2019

    Rep. Devin Nunes (R-CA) is suing Twitter. More specifically, Nunes is suing Twitter, a Republican strategist, and two parody Twitter accounts, one purporting to be Nunes’s mother, the other purporting to be Nunes’s cow. (The account is @Devincow). First reported by Fox News, the complaint seems to be part of a plan almost destined to backfire spectacularly in the public eye: one of the more combative and well-known figures in Congress (particularly for his defenses of President Donald Trump) deciding to sue a notoriously free-wheeling social media platform, two parody Twitter accounts, and a Republican operative who uses it frequently for $250 million over tweets like these. ... But the question isn’t necessarily “Is Nunes’s lawsuit shambolic,” but “What does Nunes hope to achieve with his shambolic lawsuit?” So I spoke with Mark Tushnet, a First Amendment professor at Harvard Law School. After going through the complaint, Tushnet said that Nunes’s only real legal claim against Mair is for libel — a written statement that is harmful to someone else’s reputation. And because Nunes is a public figure, the standard for libel is higher. As Tushnet said, “[Nunes] has to show that the defendants made false statements of fact either knowing that they were false or with reckless disregard of their truth or falsity.”

  • States File Suit Against Trump Administration Over Wall Emergency

    February 19, 2019

    Sixteen states on Monday filed a federal lawsuit challenging President Trump’s national-emergency declaration to pay for a wall along the U.S.-Mexico border, setting up a showdown with the administration that could go to the Supreme Court and last through the 2020 election. ...The states’ best chance could be to argue that the border wall doesn’t meet the statutory definition of a military construction project, as the president asserts, Harvard law professor Mark Tushnet said.“It’s not a slam dunk for them,” he said, “But there’s a decent chance they will ultimately prevail.”

  • “An Unusual Situation”: Experts Weigh in on Trump’s National Emergency Declaration

    February 18, 2019

    After weeks of sparring with Congress, President Donald Trump invoked a national emergency Friday in an attempt to secure money for a barrier along the United States’ border with Mexico. The declaration came a day after the passage of a bipartisan spending bill that caps funding for the wall, a key Trump campaign promise, at just under $1.4 billion.... But declarations like Obama’s have not been wielded as a means to skirt Congress over funding disputes. “This is an unusual situation … because here a president asked for something and Congress said no, essentially, and now he’s going to declare an emergency to do what he couldn’t get Congress to do,” said Harvard Law professor Mark Tushnet. “That is new.”

  • Legal challenges to Trump emergency declaration face uphill battle

    February 18, 2019

    Democratic lawmakers, states and others mulling legal challenges to President Donald Trump’s national emergency declaration to obtain funds to build a U.S.-Mexico border wall face an uphill and probably losing battle in a showdown likely to be decided by the conservative-majority Supreme Court, legal experts said. ...Trump is running for re-election next year and a loss would mean his presidency ends in January 2021. It is possible the legal fight over the emergency declaration might not be resolved by then. “My guess is the money, the significant amount of money, won’t flow before the 2020 election,” Harvard Law School professor Mark Tushnet said.

  • Let’s say Trump declares a national emergency. What happens next?

    February 7, 2019

    An op-ed by Mark Tushnet:  If Congress doesn’t come up with an appropriations bill funding his beloved wall, can President Trump declare a national emergency and build the wall anyway? The answer depends on law and politics. The Constitution is the starting point. It says that the government — even the president — can’t spend money unless Congress passes a law authorizing the spending. Without a bill funding the wall, where can the president find the money? Several places, it turns out. The National Emergencies Act says that a presidential declaration of an emergency triggers a bunch of other provisions. One provision allows a president to spend already appropriated money for “military construction projects.” There’s a pot of about $10 billion available under that provision. Another allows him to divert the emergency money already appropriated for disaster relief.

  • health app illustration

    Faculty Books in Brief: Winter 2019

    January 30, 2019

    With the increased use of a massive volume and variety of data in our lives, our health care will inevitably be affected, note the editors of a new collection, one of the recent faculty books captured in this section.

  • Whither that wall

    Whither that wall

    January 11, 2019

    President Trump may be able to build a wall along the Mexican border, Harvard analysts say, but then the ripples will widen.

  • Whither that wall

    January 11, 2019

    What started as a touchpoint for presidential candidate Donald Trump to visualize immigration concerns has become the linchpin behind a government shutdown and a possible legal challenge to sweeping presidential power. ...Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School: "Courts would allow leeway, but then there’s the public. If we think about what the courts would say if the president declared an emergency, the answer would be that the courts will give the president a great deal of discretion and leeway in his evaluation of whether there is an emergency. That’s different from asking whether, as a fundamental constitutional matter, there are standards for determining whether there’s an emergency and, in particular, whether a president can declare an emergency without having substantial reasons for characterizing the situation as requiring immediate, urgent attention. The courts will enforce this standard. As a matter of fundamental constitutional principle, the president has to offer reasons to the public explaining why this is something that requires urgent attention. He would have a decent case defending [an emergency] declaration in court. He clearly has more difficulty defending it before the public — and the latter is constitutionally relevant."

  • New Proactiv Ambassador Kendall Jenner Might Not Use the Company’s Products. Legally, That Matters

    January 10, 2019

    On Sunday evening, in a time slot perfectly orchestrated to capture Golden Globes viewers and those aimlessly scrolling on social media, Kendall Jenner revealed – by way of a much-hyped announcement – that she is the newest face of Proactiv. In furtherance of the undoubtedly big-money endorsement deal, Jenner and Proactiv released a video promoting in which the 23-year old model promotes the 23-year old skincare company, the latter of which is known for its affordable acne solutions and longstanding direct-to-consumer subscription model.   ... As Rebecca Tushnet, a Harvard Law School professor specializing in false advertising (among other things), told TFL, “Endorsers generally have to be truthful about their use of the product they endorse.” In particular, she points to the Federal Trade Commission’s guidelines, which state, “When the advertisement represents that the endorser uses the endorsed product, the endorser must have been a bona fide user of it at the time the endorsement was given.”  

  • Can Trump build his border wall on his own? Here’s what the experts are saying

    January 10, 2019

    President Trump is continuing to leave open the possibility that he might declare a national emergency and try to authorize a controversial wall on the southern border on his own if Congress won’t approve the $5.7 billion he’s asking for.... A number of legal experts have weighed in on the concept. Here’s a roundup from around the Web of what they’ve been saying. ... The Constitution, on the other hand, is relatively silent on the topic of emergency powers, Harvard law professor Noah Feldman said in a Bloomberg Opinion column. Feldman notes that Article I, Section 9 allows for the suspension of habeas corpus in cases of rebellion or invasion. But he continued, “From the fact that the suspension clause exists, you can deduce something very basic to the U.S. constitutional system: There are no other inherent constitutional emergency powers.”.... Harvard law professor Mark Tushnet told NBC News, “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”

  • National Emergencies And The Limits Of Executive Power

    January 8, 2019

    President Donald Trump will address the nation this evening to talk about what he calls “the Humanitarian and National Security crisis on our Southern Border.” ...  So can the president get funding for the wall without Congressional approval? We’re unpacking the legal arguments for and against that process. GUESTS Mark Tushnet, Law professor, Harvard Law School. Matthew Dallek, Associate professor of political management, Graduate School of Political Management at The George Washington University; author of “Defenseless Under the Night: The Roosevelt Years and the Origins of Homeland Security”  

  • Explainer: Trump’s emergency threat on wall risks dual legal challenge

    January 7, 2019

    President Donald Trump would almost certainly face a legal challenge if he carries out his threat to get funding for a U.S.-Mexico border wall by declaring a national emergency and circumventing Congress’s purse-strings power. Legal scholars said it was unclear exactly how such a step would play out, but they agreed that a court test would likely focus on whether an emergency actually exists on the southern border and on the limits of presidential power over taxpayer funds. ... Mark Tushnet, a constitutional law professor at Harvard Law School, said, “It’s a very aggressive use of presidential authority. The fact that it’s aggressive doesn’t mean it’s unlawful. But it does mean that it goes beyond the boundaries of what has been done before.”

  • Fact check: What’s a ‘national emergency,’ and can Trump declare one to get his wall?

    January 7, 2019

    Two weeks into a partial government shutdown triggered by an impasse over the money President Donald Trump demanded for his promised border wall, Trump said he could declare a state of emergency and build his wall without congressional approval. ... "The Department of Defense has funds in its account that are not specifically designated for anything. Congress gives them money and says we don't know what’s going to happen over the next year — here’s 100 billion," Harvard Law School Professor Mark Tushnet told NBC News, guessing at an approximate funding amount. “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground,” he added.

  • New campaign seeks support for expanded Supreme Court

    October 17, 2018

    A couple of liberal Harvard law professors are lending their name to a new campaign to build support for expanding the Supreme Court by four justices in 2021. The campaign, calling itself the 1.20.21 Project and being launched Wednesday, also wants to increase the size of the lower federal courts to counteract what it terms "Republican obstruction, theft and procedural abuse" of the federal judiciary...Harvard professors Mark Tushnet and Laurence Tribe are joining an effort being led by political scientist Aaron Belkin. He was a prominent advocate for repealing the "don't ask, don't tell" policy that prohibited LGBT people from serving openly in the military..."The time is overdue for a seriously considered plan of action by those of us who believe that McConnell Republicans, abetted by and abetting the Trump Movement, have prioritized the expansion of their own power over the safeguarding of American democracy and the protection of the most vulnerable among us," Tribe said.

  • The case for abolishing the Supreme Court

    October 12, 2018

    ...I reached out to Mark Tushnet, a law professor at Harvard University, to talk about the case for abolishing the Supreme Court. I asked him if the Court is still fulfilling its constitutional role, if it’s unusual for a liberal democracy to place so much power in a single court, and if he thinks Democrats should consider packing the courts or imposing term limits on justices.

  • Trump’s notable ‘obstruction’ concession

    September 27, 2018

    In the middle of his lengthy news conference Wednesday at the United Nations General Assembly, President Trump made a somewhat new concession about his conduct vis-a-vis the Russia investigation. “There was no collusion, there was no obstruction,” he said. “I mean, unless you call ‘obstruction’ the fact that I fight back. I do fight back. I really fight back. I mean, if you call that obstruction, that’s fine. But there’s no obstruction, there’s no collusion.”...“I think it would be a real stretch for anyone to include this as evidence of ‘corrupt intent’ or anything like that,” said Harvard Law School professor Mark Tushnet. “On its face, it’s a statement that he is developing a vigorous defense against what he regards as unjustified allegation, and any potential defendant has the right to mount a vigorous defense, and then to tell people that’s what he’s doing.”

  • On the Bookshelf: HLS Library Book Talks, Spring 2018 2

    On the Bookshelf: HLS Library Book Talks, Spring 2018

    August 9, 2018

    The Harvard Law School Library hosted a series of book talks by HLS authors, with topics including Authoritarianism in America, the Supreme Court of India, and Legal Reasoning and Political Conflict. As part of this ongoing series, faculty authors from various disciplines shared their research and discussed their recently published books with a panel of colleagues and the Harvard Law community.

  • The Constitution

    Are there holes in the Constitution?

    July 27, 2018

    To gain a better understanding of some of the issues increasingly in play in today's political climate, the Gazette interviewed Mark Tushnet, Michael Klarman, Steven Levitsky, and Steven Jarding--Harvard faculty members who have expertise in constitutional law and legal history, democratic and authoritarian governments, and American politics.

  • Here’s what 11 experts say about whether President Trump can pardon himself

    June 5, 2018

    President Donald Trump might be dead certain that he has the "absolute right to PARDON myself," but experts are divided. No American president has ever tested the idea. Nor has a court has ever ruled on the question of whether such an extreme action is allowed under the U.S. Constitution. But 44 years ago, when the Justice Department was faced with the possibility that President Richard Nixon might try to pardon himself, a top lawyer in the department in a memorandum to the deputy attorney general said the answer to that question was an unequivocal "No."...Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School: "The constitutional arguments about self-pardoning are ... complex, and no one should have strongly held views about the correct analysis," Tushnet told CNBC.

  • Australian High Court Justice reflects on how legal systems deal with alternative facts

    Australian High Court Justice reflects on how legal systems deal with alternative facts

    April 23, 2018

    Stephen Gageler AC, LL.M. ’87, a justice of the High Court of Australia, returned to Harvard Law School in March to meet with faculty members, participate in classes, and speak on 'Alternative Facts in the Courts.'

  • Could lying about trying to fire Mueller put Trump in even more hot water?

    January 29, 2018

    Even as President Trump's falsehoods go, this one was pretty blatant: Two months after he unsuccessfully tried to fire Robert S. Mueller III, Trump denied that he had even considered doing such a thing...Another constitutional law expert, Mark Tushnet of Harvard University, said it would be a “stretch” to say that such lies inherently violate a president's duty to faithfully executive the laws. But he said it could play into an obstruction case. Another constitutional law expert, Mark Tushnet of Harvard University, said it would be a “stretch” to say that such lies inherently violate a president's duty to faithfully executive the laws. But he said it could play into an obstruction case.

  • The case against court-packing

    November 27, 2017

    In recent months, prominent legal scholars on both sides of the political spectrum have proposed court-packing plans, or at least urged reconsideration of the longstanding political norm against court-packing. If such ideas take hold, it will be a very dangerous development... But in his most recent post on this subject, [Mark] Tushnet notes – with admirable candor – that “[t]he rationale is not (on the surface) to ‘seize control of the judiciary'” (emphasis added). That, of course, suggests that “seizing control” is a major part of the rationale beneath the surface.

  • Legal experts split on if NFL can punish for anthem protests

    October 12, 2017

    Jerry Jones may want to bench Dallas Cowboy players who don't stand for the national anthem, but NFL owners could find themselves facing a First Amendment lawsuit if they punish football players or coaches for their protests after taking government money into the private business of professional football...The money exchanged between governments and pro football teams could mean that discipline enforced by the team could be "fairly attributed to a government entity, meaning the employer could not discipline someone for taking a political position," Harvard Law School professor Mark Tushnet said.

  • Chattanooga man loses his job after sitting during national anthem at a weekend event

    October 10, 2017

    A man says he lost his job because of the stance he took at an event that NewsChannel 9 sponsors. The termination comes during a national conversation about respect for the American Flag...One Harvard Law School Professor we talked to says the law in Tennessee is written so that employers like 9Round can run their businesses however they want. "Employers are entitled to fire people what's known as "at will." That is for any reason they have, or for no reason at all," Mark Tushnet said.

  • Harvey Weinstein Has No Case Against the New York Times, Legal Experts Say

    October 10, 2017

    Hollywood producer Harvey Weinstein has said he plans to sue the New York Times because the paper only gave him two days to respond to allegations that he sexually harassed women for decades. Does he stand a chance in court?...“The short answer is that he’s almost certainly a public figure who can prevail only if he shows that the paper acted with reckless disregard of whether the story was true or false,” Harvard Law professor Mark Tushnet told TheWrap. “Departing from journalistic practices by not giving him ‘enough’ time to respond almost certainly isn’t enough to show reckless disregard.”

  • Thurgood Marshall: The soundtrack of their lives

    October 2, 2017

    Thurgood Marshall is revered as a titan of the U.S. Civil Rights Movement, the architect of the landmark court case that ended legal segregation in America’s public schools, and the first African-American Supreme Court justice. Yet for five of his former law clerks gathered Wednesday at Harvard Law School (HLS), he was more than that. For Mark Tushnet, William Nelson Cromwell Professor of Law, Marshall was a messenger of hope and courage to African-Americans who endured the injustices of the Jim Crow South...For Randall Kennedy, Michael R. Klein Professor of Law, who clerked for Marshall in the ’80s, the associate justice was a source of pride, lifting the spirits and the consciousness of black Americans who were treated as second-class citizens...For Martha Minow, former dean of Harvard Law School, Carter Professor of General Jurisprudence, and University Distinguished Service Professor, who also clerked for Marshall, he was the embodiment of a deep commitment to social justice and faith in the power of the rule of law to bring equal rights to all eventually...The panel was moderated by Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, director of the Charles Hamilton Houston Institute for Race & Justice, and professor of history in the Faculty of Arts and Sciences, and Kenneth Mack, the Lawrence D. Biele Professor of Law...“He was a formidable person in all respects,” recalled another former clerk, William Fisher, WilmerHale Professor of Intellectual Property Law and faculty director of the Berkman Klein Center for Internet & Society...Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, said she developed a lifelong interest in death penalty law during her clerkship with Marshall.

  • Future Colin Kaepernicks, Beware: You Can Get Fired for Political Speech

    September 28, 2017

    It doesn’t look like any NFL players will be disciplined for kneeling or locking arms in protest during the playing of the National Anthem. But First Amendment experts say most employees can be fired from many jobs for exercising their freedom of speech...But government employees are in a different position, Harvard Law professor Mark Tushnet told TheWrap. He said that under the First Amendment, government workers who speak about public policy can’t be fired unless their speech interferes with their jobs — by provoking fights, for example. “Typically, though, governments aren’t able to make that showing,” he said.

  • Do you support Colin Kaepernick? Read this before making a First Amendment political protest on the job

    September 26, 2017

    ...But could everyday workers be fired for expressing their opinions at the office?...The short answer: If you’re not a government employee: No...But it doesn’t necessarily protect private-sector employees who make statements or donations in favor of causes their employers disagree with, Mark Tushnet, a professor of law at Harvard Law School, previously told MarketWatch. Private-sector employees are generally employed at the will of the employer, Tushnet said, and their employers can fire them as they see fit. “That includes disagreement with what they say in public,” Tushnet said.

  • What the Constitution says Berkeley can do when controversial speakers come knocking

    September 22, 2017

    An op-ed by Mark Tushnet. Next week is “Free Speech Week” at the University of California Berkeley. Conservative speakers, some very incendiary, are scheduled to appear in public spaces — the storied Sproul Plaza, the nearby Mario Savio Steps — offering their views on feminism, Islam, and more. Maybe the organizers really want to gather an audience that will listen to what the speakers have to say — the list seems quite fluid, but the names of alt-right provocateur Milo Yiannopoulos, anti-Islamic polemicist Pamela Geller, and former White House strategist Steve Bannon have been bandied about — and exit with changed minds. Mostly, though, they want to lay down a marker at what they regard as a center of intolerance for conservative views. And they probably expect some disruptions that will, they hope, discredit their opponents.

  • Ordained and established: HLS scholars dissect the framers' contributions

    Ordained and established: HLS scholars dissect the framers’ contributions

    September 18, 2017

    On Sept. 17, 1787, the framers of the U.S. Constitution gathered to sign the historic document created to unite a group of states with different interests, laws and cultures; today, HLS faculty voices are providing us with history, interpretation and critical analysis of that document.

  • No fly zone: City Hall refuses to raise Christian flag

    September 15, 2017

    A Christian group is threatening legal action if the Walsh administration doesn’t allow a religious flag to be raised on City Hall Plaza — the same spot they say where banners from “communist” nations as well as transgender and pride colors are set to fly...Mark Tushnet, a Harvard law professor, said the city’s interpretation that flying the flag on a city flagpole could be viewed as an endorsement would, in his opinion, hold water with a judge. “I think it’s much more likely for people to think if it’s on the city flagpole, then the city must be standing behind it,” he said. “If that’s right, then the city in my view is entitled to say no.”

  • Cities Face a High Bar to Stop Hate Groups from Marching

    August 22, 2017

    After the eruption of violence in Charlottesville, Virginia, on Saturday, extreme right-wing groups are planning to proceed with marches in Boston, California, Tennessee, Texas and Virginia in the coming weeks. Some local officials, fearful that even unrelated events organized by groups with similar messages could escalate into confrontations, are looking for ways to control or to mitigate the potential for mayhem. In Boston, where a so-called "free speech" rally is scheduled for this weekend, Mayor Martin Walsh declared, "I don't want them here, we don't need them here, there's no reason to be here," according to the Boston Herald...The fact that the event will go on underscores how, under the free speech protections of the First Amendment, cities face an exceptionally high bar to block groups from gathering, even – or especially – groups that espouse hate. "The city has to start out with the assumption that they have to grant a permit," says Mark Tushnet, a professor at Harvard Law School who studies constitutional law.

  • Why Charlottesville white supremacists are being named, shamed — and fired

    August 15, 2017

    The ugly and tragic events in Charlottesville, Va., which resulted in the death of one 32-year-old woman who was hit by a car, have sparked rallies across the country — and the firing of at least one white nationalist marcher...Employees are legally protected from being fired based on discrimination, for their race, color, religion, sex, or national origin, according to the Civil Rights Act of 1964. But the First Amendment, which prohibits the government from interfering in the free exercise of speech and religion, does not protect employees who make statements or donations in favor of causes their employers disagree with from being fired, said Mark Tushnet, a professor of law at Harvard Law School...Attending a rally — no matter what side you’re on — can get you fired. Private-sector employees are generally employed at the will of the employer, Tushnet said, and their employers can fire them as they see fit. “That includes disagreement with what they say in public,” he said.

  • President Trump is considering pardoning himself. I asked 15 experts if that’s legal.

    July 25, 2017

    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.

  • Girl speaking with shapes illustration

    Faculty Books in Brief—Spring 2017

    May 18, 2017

    The concept of speech is typically defined as the communication of thoughts in spoken words. Yet the authors note that First Amendment protection of speech is far broader, covering nonrepresentational art, instrumental music, and even nonsense—individual topics that Tushnet, Chen, and Blocher focus on (in that order) in the book.

  • The US is terrible at investigating politicians. Blame the Constitution.

    May 17, 2017

    An op-ed by Mark Tushnet...Designing investigations into high-level misconduct is extremely difficult. Every nation has tough choices to make, and none has come up with a perfect solution — though it’s clear that the US system is uniquely bad. The problems Donald Trump has created for himself have put into motion the US version of the investigations in Brazil and South Africa. We are watching our political system contort itself as politicians and bureaucrats search for a credible way to investigate the depth and nature of his campaign’s connection with the government of Russia...Perhaps because we wrote our Constitution more than two centuries ago, it doesn’t set out principles for investigating high-level corruption...Modern constitutions have drawn upon two centuries of experience. We should do what we can to draw on that experience, too.

  • This Harvard law professor thinks Trump really could be impeached over Comey

    May 12, 2017

    After President Donald Trump fired FBI Director James Comey on Tuesday, it didn’t take long for people to start talking about impeachment. "It may well produce another United States vs. Nixon," said Sen. Richard Blumenthal on CNN. "It may well produce impeachment proceedings.”...Does Trump’s decision to fire Comey meet the legal threshold of obstruction of justice? And is it too early to put impeachment on the table? I put these questions to Mark Tushnet, a professor of law at Harvard University who focuses on constitutional law and 20-century American legal history..."I'm in the camp of people saying that we've started down a path that might lead to a constitutional crisis, but aren't quite at the point of crisis yet. And we could, of course, turn off the path before we reach the crisis stage."

  • Prime Minister Paul Ryan

    March 2, 2017

    ...The ultimate form of American exceptionalism is the presidential system of government. After the 2016 election, the question haunting political scientists is whether America can continue to be the exception. When a demagogue can rise to power and win the presidency without a popular mandate, we must examine our system. Key flaws in presidential systems could lead to an unstable government and a decrease in civil liberties, such as free speech...To even ever dream of changing the American system of government, we would need a constitutional convention. “To have a constitutional convention, you need a lot of people that are really upset,” Mark Tushnet, expert on constitutional law at Harvard University and previous clerk for Thurgood Marshall said in an interview with The Politic.

  • I asked 8 experts if we’re in a constitutional crisis. Here’s what they said.

    February 13, 2017

    Are we in a constitutional crisis?...Luckily, the legal literature has developed other, arguably clearer, categories for talking about heated conflict like this. In 2004, Mark Tushnet, now at Harvard Law, introduced the concept of "constitutional hardball": when political actors are clearly acting within their legal and institutional limits, but are violating past practices or norms in a way that feels unprecedented and provides advantage to their side...“In the current spat, if there is hardball going on, it takes the form of White House people bypassing the established systems for vetting executive orders,” Tushnet told me. “Not submitting them to career people in the Office of Legal Counsel, but sending it apparently only to the political, shadow person they sent over there. They can say, ‘We did send it to OLC,’ but the person who got it is not the kind of person who’d ordinarily be used to vet these issues.”

  • Diversity in the 1L curriculum explored in spring seminar and lecture series

    February 7, 2017

    During this year’s spring semester, Mark Tushnet, the William Nelson Cromwell Professor of Law, is teaching a novel seminar called “Diversity and Social Justice in First Year Classes.” It combines classroom teaching with an eight-part public lecture series examining how issues of diversity and social justice can be integrated into the core 1L classes.

  • Roe v. Wade Attorney: Trump Is Biggest Threat Yet to Reproductive Rights

    January 23, 2017

    Forty-four years ago, the Supreme Court made a surprise ruling in favor of a young attorney, declaring abortion legal nationwide. Sarah Weddington, the lawyer who argued Roe v. Wade, says now that her legacy — and the law itself— has never been more at risk. ..."There's no immediate threat to Roe v. Wade, even with a single Trump appointment to the court, but in the long run, with the possibility of a second or third Trump appointment, there is a substantial threat to the core of Roe v. Wade," Mark Tushnet, a professor at Harvard Law School, told NBC News.

  • For Evangelicals, Trump brings new hope – and a thorny question

    December 20, 2016

    After eight years of feeling “like an outcast” as a Christian, David Cox has been walking a lot lighter the past few weeks.Given an election where more evangelical Americans voted for thrice-divorced Donald Trump than they did for church-going George W. Bush, Mr. Cox has witnessed a major mind-set shift among many fellow Evangelicals – from trepidation, even fear, to hope – a sense, he says, of “being accepted again.”...But the battles between religious conservatives and the LGBT community show how quickly the terms of the fight have changed. North Carolina Gov. Pat McCrory (R) lost reelection this year partly because of his support for a bill that nullified significant protections for the LGBT community. “Ten years ago, who would have thought a politician would get into trouble for taking the position [Governor McCrory] did? And that’s a significant fact: It’s an indication of how far the battle line has moved into the territory of religious conservatives,” says Harvard University law professor Mark Tushnet, author of “Why the Constitution Matters.”

  • Professors call anti-liberal ‘watchlist’ an ‘amateurish’ intimidation tactic

    December 13, 2016

    The website,, catalogs 200-some professors from universities across the U.S. who “advance leftist propaganda in the classroom,” the About page states. The list details professors’ alleged views on everything from abortion to the Holocaust, and was created by conservative group  Turning Point USA, which aims to spread conservative ideals to young activists. ... Mark Tushnet, a professor of law at Harvard Law School, echoed Douglas’ sentiments. “I doubt that this list as such will have any effect on what professors on the list do,” Tushnet said. “I certainly don’t intend to modify my teaching or scholarship as a result of being on it.”

  • Diversity and U.S. Legal History

    December 7, 2016

    During the fall 2016 semester, a group of leading scholars came together at Harvard Law School for the lecture series, "Diversity and US Legal History," which was sponsored by Dean Martha Minow and organized by Professor Mark Tushnet, who also designed a reading group to complement the lectures.

  • Mass. professors make group’s watchlist for alleged ‘leftist propaganda’

    December 2, 2016

    Both former and current Massachusetts professors are featured on a new website created by a conservative-leaning organization that tracks and documents what it calls “radical” ideas espoused by educators...Mark Tushnet, a Harvard Law School professor, has landed on the list. The website, quoting reports published by The Washington Times and the Independent Journal Review, wrote that Tushnet “asked liberals to begin treating Christians and conservatives like Nazis.” Tushnet told the Globe on Thursday that the reports the group relied on are “misleading both in framing the concern, and in the characterization” of a blog post he wrote. He said critics took what he said “essentially out of context.”

  • Law Professor Included on Conservative Nonprofit’s ‘Watchlist’

    November 28, 2016

    Law professor Mark V. Tushnet ’67 landed on a “watchlist” of liberal professors created by the conservative nonprofit organization Turning Point USA last week. According to the group’s website, the goal of the list is to “expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom.” Turning Point USA aims to instill conservative principles such as support of free markets and limited government in college students...Tushnet said he was unperturbed by his inclusion on the list. “It’s not a big deal,” he said. “It comes with the territory.”

  • Donald Trump might pull funds if cops won’t hold illegals

    November 15, 2016

    Cities and towns can constitutionally refuse to actively help President-elect Donald Trump in his move to deport millions of illegal immigrants — but the new administration could pull millions in federal funding if municipalities don’t oblige, according to legal analysts. “Most federal grant statutes would allow the president to withdraw funds if cities don’t comply,” said Mark Tushnet, a constitutional law professor at Harvard Law School. “You start out assuming the president can do it.”

  • What Obama Can Do to Make Life Difficult for President Trump

    November 10, 2016

    ...For some perspective on what, exactly, Obama can do between now and January 20 to make life trickier for Trump, I called up Mark Tushnet. He's a professor at Harvard Law School who clerked for Supreme Court Justice Thurgood Marshall and specializes, among other things, in constitutional law and legal history. Here's what he had to say about what to expect over the next few weeks...Professor Mark Tushnet: As a formal matter, no, he hasn't exhausted his authority until noon on January 20 next year. As a practical political matter, of course, it's very unlikely he'll be able to do anything substantial during that period because he could do it and President Trump on the 21st could revoke all that he had done. As a technical matter, though, he still has all the power that a president has.

  • Christian business owners take a different legal route in battle over serving gay marriages

    October 17, 2016

    Christian business owners are pursuing a new legal strategy to oppose laws they say would force them to use their artistic talents to promote same-sex marriage...ADF hopes to win with pre-enforcement challenges, which have been an effective legal maneuver for decades on several high-profile cases involving abortion, campaign financing and the Affordable Care Act. "They require that there (is) a realistic possibility that the plaintiff would actually be subject to some enforcement action," said Harvard Law School professor Mark Tushnet. He said this generally happens when a government agency announces that a policy — such as a non-discrimination law — will be enforced, or when someone has been denied service and threatens to sue.