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Mark Tushnet

  • Trump Didn’t Commit Treason—But That Press Conference Was Dangerous

    August 1, 2016

    After Donald Trump called on Russian hackers release Hillary Clinton’s deleted emails, the next question was obvious: Did the GOP candidate for president just commit treason? The answer is no—but that doesn’t mean that his comments aren’t dangerous...Harvard Law professor Mark Tushnet said in an interview that because the United States is not engaged in a war with the Kremlin, Russia cannot be considered an enemy—and thus, giving “aid and comfort” to Putin remains in line with the Constitution. “As a legal term, it [treason] means that there’s actually something like a state of war,” Tushnet said. “There isn’t between us and Russia. It can’t be done.”

  • The Supreme Court and political world are more entangled than either acknowledges

    July 18, 2016

    ...The entanglement of the judiciary and the political world was on full display recently with Justice Ruth Bader Ginsburg’s now-regretted unloading on presumptive Republican presidential nominee Donald Trump....The condemnation of Ginsburg’s remarks by Republican politicians and conservatives was unsurprising. More interesting was the split on the left, where most of the legal establishment resides. Reaction to Ginsburg launched a thousand op-eds and blog posts. “To the extent that the current flap tells us something interesting about contemporary norms regarding the Court, it is that many people think there’s something important about maintaining the facade that the Justices are above politics, at least when they are considering actual cases,” Harvard law professor Mark Tushnet wrote on the liberal blog Balkinization. “But I have a bridge to sell you if you think that the Justices (any of them) were above politics in . . . Bush v. Gore, or in many recent cases.”

  • Most-cited law faculty, 2010-2014

    May 20, 2016

    Brian Leiter has updated his list of the most-cited law faculty. Here is his list of the 10 most-cited law faculty in the United States, 2010-14, led by Harvard’s Cass Sunstein. Following Sunstein are Erwin Chemerinsky (UC Irvine), Richard Epstein (NYU, Chicago), Eric Posner (Chicago), Mark Lemley (Stanford), William Eskridge Jr. (Yale), Mark Tushnet (Harvard), Akhil Amar (Yale), Bruce Ackerman (Yale) and Lawrence Lessig (Harvard). Interestingly, three of the top 10 are in their 70s, three are in their 60s, and four are only in their 50s.

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    Faculty Books In Brief—Spring 2016

    May 4, 2016

    “FDA in the 21st Century: The Challenges of Regulating Drugs and New Technologies,” edited by Holly Fernandez Lynch and I. Glenn Cohen ’03 (Columbia). Stemming from a 2013 conference at HLS, the book features essays covering major developments that have changed how the FDA regulates; how the agency encourages transparency; First Amendment issues; access to drugs; and evolving issues in drug-safety communication. These issues, the editors write, lie “at the heart of our health and health care.”

  • Presidential power in an era of polarized conflict 2

    Presidential power in an era of polarized conflict

    April 21, 2016

    On April 1, Harvard Law School hosted a conference on 'Presidential Power in an Era of Polarized Conflict,' a daylong gathering in which experts from both sides of the aisle debated the president’s power in foreign and domestic affairs, and in issues of enforcement or non-enforcement.

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    Justice Louis D. Brandeis: Celebrating the 100th Anniversary of his Confirmation to the U.S. Supreme Court

    March 31, 2016

    In honor of the centennial anniversary of Louis D. Brandeis' confirmation to the United States Supreme Court, Harvard Law School and the Harvard Law Library are celebrating his relationship with the school, as a student, a devoted alumnus, and as a Supreme Court Justice employing and mentoring HLS graduates.

  • Why Justice Scalia’s Reputation Will Fade

    March 17, 2016

    An op-ed by Mark Tushnet. Several weeks have passed, and with the President having nominated Merrick Garland as Justice Scalia’s replacement, it might be easier to offer a somewhat more detached view of Justice Scalia’s likely place in Supreme Court history than was possible immediately after his unexpected death. Comments from his colleagues make it clear that, on the level of personal interaction, Justice Scalia was a genial man, easy to get along with (although the documentary record does show that he and retired Justice O’Connor set each other’s teeth on edge on a regular basis). From the point of view of those of us outside the Court (I should mention that I met Justice Scalia only once, so far as I can recall, and even then had quite limited contact with him), this raises questions about how we should think about the relation between personal qualities and contributions to the law and to the institution of the Supreme Court. Those questions are pertinent because, in my view, along several dimensions Justice Scalia’s contributions were negative, so to speak. That is, overall, his work as a Justice over an extended period made the nation worse off than it might have been.

  • As Americans Take Up Populism, the Supreme Court Embraces Business

    March 14, 2016

    The Supreme Court vacancy created by the death of Justice Antonin Scalia highlights a growing rift between the country and the nation’s highest court on questions of economic power and support for big business. And that gap, legal experts say, is unlikely to be significantly narrowed by the kind of justice President Obama — or the next president, Democrat or Republican — is expected to nominate...Mark Tushnet, a left-of-center professor of constitutional law at Harvard Law School and the author of “In the Balance: Law and Politics on the Roberts Court,” says that while big businesses frequently lose individual cases before the court, these are “in some sense discrete problems.” By contrast, the arbitration and class-action decisions “end up regulating a large swath of litigation,” he said. “Lots of lawsuits are affected by the outcome and they are affected in a pro-business way.”

  • Scalia’s Supreme Court Seat and the Next Frontier in Political Hardball

    February 16, 2016

    In 2004, Mark Tushnet, a [Harvard University] law professor, wrote an article about “constitutional hardball,” which he defines as legal and political moves that are “within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.”

  • Retired Canadian jurists respectfully dissent from Scalia’s approach, style

    February 15, 2016

    The first time Ian Binnie met Antonin Scalia, the U.S. Supreme Court justice was at his acerbic, gregarious best. It was in Auckland in 1999, and Justice Scalia, fresh from an Australian vacation, extended his hand. ...Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard, said that if originalism is understood to exclude other interpretive approaches, its influence on the U.S. Supreme Court’s decisions has been limited.

  • South Asian constitutions

    February 8, 2016

    Comparative constitutional law, which involves the study of constitutional jurisprudence and its relative application to political institutions in different countries, has in recent times emerged as an important field of examination. But much of the academia involved in these comparative studies has focused its attention on the constitutions of Western democracies. Even when constitutions of developing countries are considered, the comparison often features their structures qua those contained in the constitutions of supposedly more sophisticated societies. As a result, what we have is a highly lopsided compendium — for instance, existing studies partake very little of the challenges faced by constitutional democracies in South Asia. This imbalance is sought to be corrected by a new, and admirable, anthology of academic essays, Unstable Constitutionalism: Law and Politics in South Asia, edited by Mark Tushnet, a professor of law at Harvard Law School and Madhav Khosla, a Ph.D. candidate at the Department of Government at Harvard University.

  • Cambridge City Council Denounces Right-Wing Media Outlet

    January 7, 2016

    In a resolution passed last month, Cambridge’s City Council publicly denounced the right-wing media organization for spreading what it called “anti-Muslim libel” after the outlet published an article asserting that a City councillor has ties to the Islamic militant group Hamas...Mark V. Tushnet ’67, a Harvard Law School professor specializing in constitutional law, wrote in an email that he “doubt[s] that the city council's resolution could be fairly called even an affront to First Amendment values.”

  • HLS Professor Mark Tushnet

    Considering ‘Religious Accommodation’

    October 5, 2015

    Scholarship stemming from the “Religious Accommodation in the Age of Civil Rights,” conference held in April 2014 at HLS explored tensions within constitutional and statutory civil rights commitments.

  • Will the Supreme Court’s New Term Deliver the Next Great Dissent?

    October 5, 2015

    On Monday, the marshal of the United States Supreme Court will ask everyone in the courtroom to rise and, as the justices file in through the maroon curtains and take their seats, ask God to “save the United States and this honorable Court."...Whether the arguments in any of the dissents this coming term will eventually prevail is impossible to predict; as Harvard Law Professor Mark Tushnet reminds us, only history can determine the great or “prophetic” dissents.

  • U.S. Constitution

    Harvard scholars commemorate Constitution Day

    September 17, 2015

    In celebration of Constitution Day—the annual commemoration of the signing of the U.S. Constitution on Sept. 17, 1787—several Harvard Law School professors spoke about the document upon which the American legal and political systems have been built.

  • Opinion: Indiana didn’t actually pass an anti-gay bill

    March 30, 2015

    If you want to know why the so-called wisdom of crowds is a load of B.S., just take a look at the widespread reaction last week to Indiana’s new religious-freedom law. If you listened to all the voices who have weighed in on this subject, from TV to radio to the Internet, you’d think Indiana just passed a law giving a green light to anti-gay bigotry. But after talking to some legal experts who had actually read the law in question, I found out Indiana had done no such thing...Mark Tushnet, a professor at Harvard Law School, said the law might be used to justify discrimination against gays — if the courts agree that that was the intent of the legislators who passed it, and if the courts cannot find a compelling public interest against such discrimination.

  • Same-Sex Marriage Likely, Not Guaranteed, Law School Profs Predict

    January 22, 2015

    Following a Supreme Court decision last Friday to hear arguments on the issue of same-sex marriage, several Harvard Law School professors predict that the Court will grant a historic constitutional right to same-sex marriage nationwide, but they say a more moderate outcome remains a possibility...“I would guess that the best reading of the tea leaves is that there will be five votes upholding a right to gay marriage,” Richard H. Fallon, a Law School professor, said. He along with Charles Fried and Michael J. Klarman, also Law School professors, identified Justice Anthony Kennedy as the potential “swing vote.”...Law School professor and former Supreme Court clerk Laurence H. Tribe ’62 echoed the prediction in an email, writing that the he thinks the Court will “hold that the U.S. Constitution requires universal marriage equality.”...Mark V. Tushnet ’67, a Law School professor and former Supreme Court clerk, said that the addition of the second question allows the Court to “deal with the issue comprehensively, no matter the which way the first question came out.”

  • Enforcing digital privacy might be tough

    December 4, 2014

    Freedom from surveillance is shaping up to be a major human rights issue in the post-Snowden era. The UN human rights committee is calling for a review of how member states collect residents’ data, and a Pew study last month found that most Americans are concerned with government and corporate data collection. For journalists, recent events such as the FBI posing as the Associated Press and an Uber executive allegedly threatening to expose the personal lives of the people writing about the company underscore the importance of digital security in the 21st Century...Though there is an argument to be made that digital privacy rights are enshrined in the supreme law of the land, legal scholar Mark Tushnet of Harvard Law says that idea is actually controversial. It stems from outdated doctrines and case-law that doesn’t reflect modern realities.

  • Professors Randall Kennedy and Joseph Singer

    50 years with the Civil Rights Act of 1964

    October 22, 2014

    In a panel discussion at Harvard Law School in October commemorating the 50th anniversary of the Civil Rights Act of 1964, Professor Kenneth W. Mack, characterized the legislation as…

  • The New Threat of Terrorism & America’s Game of Risk (audio)

    September 17, 2014

    Today, Department of Homeland Security Secretary Jeh Johnson will testify before the House Homeland Security Committee on the greatest perceived threats to our national security. It's been 13 years since the September 11th attacks, but terrorism remains one of the foremost threats facing the United States...Mark Tushnet, author of "The New Constitutional Order" and professor at Harvard Law School, examines the tricky balance between national security and privacy.

  • Gay marriage arguments flooding federal courts Federal

    August 11, 2014

    Federal appeals courts soon will hear arguments in gay marriage fights from nine states, part of a slew of cases putting pressure on the U.S. Supreme Court to issue a final verdict…"This is the kind of thing where you could see the conservative with a libertarian bent coming out in favor of gay marriage, but who knows?" said Mark Tushnet, a constitutional law professor at Harvard. "Having done Obamacare and maybe screwed his own chances for the Supreme Court, Sutton may feel liberated to do what he thinks is the right thing and go for marriage equality, or he may try to rehabilitate himself and go against it."