Media Mentions

Yahoo Finance’s Alexis Christoforous and Jesse Fried, Harvard Law School Professor, discuss lawmakers grilling Robinhood’s CEO amid Congress’ probe into the GameStop trading frenzy.

Former president Donald Trump made the rounds of conservative media on Wednesday, declining to say whether he plans to run for president again. But in his return to the spotlight, Trump lacked one of his largest megaphones: Facebook (FB), where a decision about whether to reactivate his account sits with the company's oversight board. In a new interview, Laurence Tribe — one of the nation's top constitutional law scholars, who briefly served at the Justice Department during the Obama administration — assailed the purportedly independent oversight board as "a dangerous idea" and warned that allowing Trump back on the platform "would be a terrible mistake." But Tribe said the board may very well rule in favor of reactivating Trump's account, since welcoming back someone of his cultural prominence would reaffirm the platform as a central institution, akin to a government entity. "I wouldn't be surprised if they held that it was wrong to kick Trump off of Facebook," says Tribe, a professor emeritus of constitutional law at Harvard University Law School who taught there for more than 50 years. "Because Facebook is sufficiently like the government as a public entity, that they really need to put Trump back."

An op-ed by Noah Feldman: Former president Donald Trump’s lawyers defended him during his second impeachment trial in part by arguing that his January 6 speech was protected by the First Amendment. That defense was legally irrelevant to the high crimes and misdemeanors charge, and wasn’t settled by his acquittal. But Trump’s free-speech defense may now get its day in court. Representative Bennie Thompson, a  Democrat from Mississippi, has filed a civil lawsuit against Trump, Rudy Giuliani, the Oath Keepers and the Proud Boys for unlawfully conspiring to interfere with Congress in the Capitol attack in violation of the Ku Klux Klan Act of 1871. And while the First Amendment doesn’t apply to impeachable offenses, it does apply in cases of civil liability. Trump’s best argument to get the case dismissed would be that he can’t held liable for conspiring with those who attacked the Capitol if all he did was express his First Amendment-protected political views. To decide that, a federal court would have to determine whether Trump’s speech was protected under the standard set by Brandenburg v. Ohio, the controlling precedent in incitement cases. The statute that forms the basis of Thompson’s lawsuit establishes liability when two or more persons conspire “by force, intimidation, or threat” to prevent any officer of the U.S. from the “lawful discharge of the duties of his office.” On its face, the law covers the January 6 attacks. There is no doubt that the rioters forcefully interfered with Congress’s discharge of its duties, and that Thompson was one of the people who was affected.

An article by Sean Quirk ‘21: The U.S. and Chinese militaries have continued to confront one another near Taiwan and in the South China Sea in the early weeks of the Biden administration. Chinese People’s Liberation Army (PLA) aircraft conducted a simulated strike against a U.S. aircraft carrier in January 2021, while Taiwan has experienced near-daily incursions into its airspace by Chinese aircraft. The U.S. Navy’s persistent operations in the South China Sea and diplomatic pronouncements from senior U.S. officials indicate that the Biden administration is largely staying the course in confronting Chinese intimidation in the region. Yet, unlike the Trump administration, Biden and his team appear keen to bring U.S. allies alongside to form a “united front” on military, economic and diplomatic dimensions of the U.S.-China relationship. On Jan. 23, Chinese military aircraft simulated an attack on the USS Theodore Roosevelt (CVN 71) Carrier Strike Group as it entered the South China Sea through the Bashi Channel, south of Taiwan. Thirteen Chinese People’s Liberation Army Air Force (PLAAF) and People’s Liberation Army Air Force Navy (PLAN) aircraft flew into Taiwan’s air defense identification zone (ADIZ) when the simulated attack occurred. Taiwan’s Ministry of National Defense reported the Chinese aircraft consisted of eight H-6K bombers, four J-16 fighter jets and one Y-8 anti-submarine aircraft. The PLA aircraft remained more than 250 nautical miles away from the Theodore Roosevelt but were heard confirming orders for the simulated release of anti-ship missiles against the carrier. The U.S. Indo-Pacific Command stated that the carrier strike group was conducting routine maritime security operations in the South China Sea and the Chinese aircraft “at no time” posed a threat.

While the coronavirus pandemic has infected millions and underscored the importance of quality health care, the Supreme Court has weighed a challenge to Obamacare that, if successful, would add 21 million to the ranks of the uninsured, according to a report released last October by the Urban Institute. The case drew renewed attention last week, when the Biden administration issued a letter in opposition to the Obamacare challenge, reversing the Trump administration's position on the case. In a new interview, Laurence Tribe — one of the nation's top constitutional law scholars, who briefly served at the Justice Department during the Obama administration — told Yahoo Finance that the case stands "no chance at all" of striking down the law, more formally known as the Affordable Care Act (ACA). He described the case against the law as "outlandish" and "extreme," assuring that even a conservative-majority court would keep Obamacare intact. "I don't think there is a chance at all that the law will be invalidated," says Tribe, a professor emeritus of constitutional law at Harvard University Law School who taught there for more than 50 years. The Supreme Court will "get rid of the case," he adds. "Now that the Justice Department under Biden has reversed the position that the Trump administration took against the law."

A Beautiful Resistance — a special project from the Globe's culture columnist Jeneé Osterheldt — is celebrating Black History Month by amplifying local stories of change-makers and the people inspired by them...“My name is Daniel Oyolu ‘21 and I want to celebrate New England Black History by honoring and acknowledging the fact that Martin Luther King met Coretta Scott while they were both studying in Boston: Martin at Boston University and Coretta at the New England Conservatory. The two were really different. Coretta came from rural Alabama and was reserved whereas Martin hailed from urban Atlanta and was quite gregarious (no surprise). At the end of the first date, Martin told Coretta she had all the qualities he wanted in a wife. Meanwhile, Coretta thought Martin was so short! But they did eventually grow close while in Boston. They were both serious individuals, politically active, and decided together to dedicate their lives and union to changing the world.” Celebrating Black love is essential. Oyolu is a Harvard Law student with a commitment to community and culture.

IBM said it was getting out of the facial recognition business last year. Then, Amazon and Microsoft announced prohibitions on law enforcement using their facial recognition tech. Nationwide protests last summer opened the door for a conversation around how these systems should be used by police, amid growing evidence of gender and racial bias baked into the algorithms. On today's encore episode, Short Wave host Maddie Sofia and reporter Emily Kwong speak with AI policy analyst Mutale Nkonde about algorithmic bias — how facial recognition software can discriminate and reflect the biases of society. Nkonde is the CEO of AI For the People, fellow at the Berkman Klein Center for Internet and Society at Harvard University and Fellow at the Digital Civil Society Lab at Stanford University.

President Joe Biden has a $1.9 trillion plan and a $1.7 trillion problem. He wants to go big on the former, but, unlike several prominent Democrats, more conservative on the latter. The $1.9 trillion, of course, is the stimulus plan that Biden was touting in last night's CNN town hall in Wisconsin. But when asked about proposals to cut into the $1.7 trillion in outstanding student-loan debt (as of the third quarter of 2020), the president expressed caution. Democratic lawmakers including Senate Majority Leader Chuck Schumer, Sen. Elizabeth Warren, and Rep. Alexandria Ocasio-Cortez have called on Biden to use his executive power to cancel up to $50,000 in student debt per person...In addition, a letter to Warren from from the legal director Eileen Connor of Harvard Law School's Legal Services Center, as well as attorney Deanne Loonin, and Toby Merrill, director of the Project on Predatory Student Lending, says the secretary of Education has full authority under the Higher Education Act to cancel student debt. In fact, Biden used the Act to extend the pause on student loan payments, and Democrats in the Senate and House, such as Ocasio-Cortez, are pushing for him to do the same with student debt cancelation.

On an all new episode of Influencers Andy sits down with Harvard Constitutional Law Professor Larry Tribe to discuss former President Trump's impeachment trial as well as the legal issues facing big tech companies in 2021.

Each country has its own car safety regulations and tax codes. But should every country also decide its own bounds for appropriate online expression? If you have a quick answer, let me ask you to think again. We probably don’t want internet companies deciding on the freedoms of billions of people, but we may not want governments to have unquestioned authority, either...Evelyn Douek, a lecturer at Harvard Law School, told me that even when countries like Germany pass laws about online speech, it’s still the responsibility of internet companies to interpret whether millions of posts are on the right side of the law. That goes for the United States, too, where companies are largely left to decide their own bounds of acceptable online expression. Countries and international bodies should “do more to establish more clear guard rails and processes for internet platforms,” Douek said, but “they’re never going to take decision making out of these platforms.”

A podcast by Noah Feldman: Why are presidential impeachments happening more often? Are impeachments futile if they don't end in a conviction? What did Hamilton and Madison overlook about the impeachment and the transition of power? To discuss these questions, political journalist and CEO of Pushkin Industries Jacob Weisberg joins the conversation. Jacob and Noah were two of the early voices on impeachment, starting in 2017 when they co-authored an article laying out Trump’s early possible impeachable offenses for The New York Review of Books. Noah would later testify at President Trump’s first impeachment trial. Today, Jacob and Noah bookend the conversation on impeachment.

An op-ed by Noah Feldman: Not content with a gerrymandered state legislatures and gerrymandered congressional districts, Pennsylvania Republicans are now moving to gerrymander judicial elections in the state — not only for local trial judges, but up to and including the state supreme court. It’s a terrible prospect, especially in the light of the state’s legal fight over the 2020 presidential election. And it points to a deeper problem, one that plagues many state judiciaries: Electing judges is a terrible idea. Born in the nineteenth century as a reform mechanism, the practice of electing judges has outlived its usefulness. In our current era of dangerous Trumpian populism, it is clearer than ever that we want judges to be sober, reasonable, and immune from the political pressures of the moment. Judicial elections come in three flavors: partisan elections, which 18 states use; non-partisan elections, found in 21 states; and retention elections after appointment, used in 21 states, several overlapping with the other two models. Only seven states have no judicial elections of any kind. At the most basic level, the idea of electing judges — which almost no other country on earth does — is based on the goal of making judges responsible to the public. The leading history of judicial elections, by Professor Jed Shugerman, tells the complicated story of how we got here. Some reformers worried that judges would be chosen as patronage appointments and therefore beholden to the governors who appointed them. Others feared judges unaccountable to the public would do the bidding of wealthy elites, a phenomenon known as judicial capture.

House Rep. Bennie Thompson (D-MS) — the chair of the Committee on Homeland Security — filed a lawsuit on Tuesday accusing former President Donald Trump of conspiring to incite the deadly attack on Jan. 6 at the U.S. Capitol. The filing marks the latest in a slew of lawsuits and probes that center on a range of allegations, including efforts to influence election officials in Georgia, defame women who accused him of sexual assault, and manipulate the value of his assets for tax and loan purposes. In a new interview, Laurence Tribe — one of the nation's top constitutional law scholars, who briefly served at the Justice Department during the Obama administration — told Yahoo Finance that Trump faces a "a huge number of lawsuits" that will occupy his attention for the remainder of his life. It remains unclear whether Trump will end up serving time in prison, Tribe says, predicting that no matter the outcome of litigation Trump will "gradually fade away," in part due to the grueling demands of his legal defense. "He is fully subject to civil and criminal lawsuits both state and federal across the land," says Tribe, a professor emeritus of constitutional law at Harvard University Law School who taught there for more than 50 years. "It's a panoply of charges," he adds. "So [Trump] is going to be busy defending himself from now until the end of his life."

An op-ed by Todd Carney ‘21: Though the whole world felt the weight of the Holocaust, some would argue that the Holocaust impacted Poland more than any other country. Though the world largely recognizes the atrocities that occurred in Poland during the Holocaust, Poland has engaged in “historical revisionism.” This revisionism has not centered on the actual impact of the Holocaust on Poland, but rather what contributed to the Holocaust. Poland currently has a law, the “Amendments to the Act on the Institute of National Remembrance,” that makes accusing any Pole of performing an action that assisted with the Holocaust, a libelous action. Many international leaders have expressed concern over the law, but no country has taken concrete actions to penalize Poland. In 2019, Filomena Leszczyńska, the niece of Edward Malinowski, a Mayor of the Polish town, Malinowo, during World War II, used the Amendments to the Act on the Institute of National Remembrance to launch a lawsuit against two historians, Barbara Engelking and Jan Grabowski. Leszczyńska alleged that Engelking and Grabowski committed a libelous act when they wrote in their book, “Night Without an End,” that Malinowski had complicity in the Holocaust by letting German occupants murder Jews. Leszczyńska sought several remedies, including a ban on the book. Recently, a Polish court found Engelking and Grabowski liable, but only ordered Engelking and Grabowski to apologize to Leszczyńska. Still, many fear that the verdict could suppress free speech in Poland. This piece looks at what free speech advocates can do outside of Poland to oppose this law.

A decade ago, the consensus was that the digital revolution would give effective voice to millions of previously unheard citizens. Now, in the aftermath of the Trump presidency, the consensus has shifted to anxiety that online behemoths like Twitter, Google, YouTube, Instagram and Facebook have created a crisis of knowledge — confounding what is true and what is untrue — eroding the foundations of democracy. These worries have intensified in response to the violence of Jan. 6, and the widespread acceptance among Republican voters of the conspicuously false claim that Democrats stole the election...Yochai Benkler, a law professor at Harvard, contends in an email that “it’s a mistake to conceive of technology as an external force with a known definitive effect on social relations.” “Radio,” Benkler argues, was as available for F.D.R.’s fireside chats as it was for Hitler’s propaganda. Ten years ago the internet in general, and Facebook in particular, was widely perceived as a liberation. Now it’s blamed for the collapse of liberal democracy. Digital media has distinctive characteristics that “can work both to improve participation and democratic governance and to undermine it,” Benkler adds. “It was citizens’ video journalism capturing the evidence and broadcasting it on social media, coupled with the mass protests,” he notes, “that changed the public conversation about police shootings of Black Americans. And it was also social media that enabled the organization and mobilization of Unite the Right in Charlottesville.”

An op-ed by Noah Feldman: Federal district court judge Jesse Furman has issued his ruling in the Citigroup-Revlon lawsuit involving a $900 million mistake. Due to human error, Citigroup employees made debt payments to Revlon’s creditors that Revlon didn’t intend for them to make. Remarkably, Furman ruled in favor of the creditors, who won’t have to give back the money it received in error. Citigroup and Revlon will now have to eat the costs of the bank’s mistake. The outcome is fascinating as an instance of strict judicial rule following. As Furman framed his opinion, the legal rule was clear: Under New York law, a creditor can keep a mistaken payment as long as he has “no knowledge” that it was sent in error. The case then came down to a question of fact: whether the creditors knew they were getting paid by mistake at the moment they got the payment. After hearing witness testimony, Furman concluded they did not. From there, it followed that they could keep the money. Seen from the perspective of common sense, the result is (I think) absurd. But the fault lies not in the judge’s application of the binding legal rule. It lies in the rule itself, at least as applied to sophisticated financial institutions. It makes almost no sense to focus on the magic moment of receipt of funds in deciding whether the courts should be able to rectify a mistake. The New York State courts, who adopted the rule, should re-think it.

A book review by Ronald Sullivan: A decade ago, Sudhir Venkatesh, a Columbia University professor of sociology, made quite a splash with his book “Gang Leader for a Day: A Rogue Sociologist Takes to the Streets.” His research consisted of shadowing a Chicago gang for 10 years, and it yielded valuable insights on the inner workings of the drug trade. Notwithstanding his book’s provocative title, however, Venkatesh never became a gang leader; rather, he closely observed gang life and culture by gaining unprecedented access. Georgetown law professor Rosa Brooks took this a step further, as recounted in her fascinating book “Tangled Up in Blue: Policing the American City.” Brooks did not simply observe policing in America. This highly educated, tenured professor became the police...The two stories work together to show that race and class conspire to create conditions that leave poor, Black citizens with mostly bad choices in order to survive. These choices include committing crimes. But these crimes have victims, who are mostly poor and Black. The victims of crime require and request more policing. But more policing results in the negative interactions between the police and Black citizens that have sparked so many recent protests. This is what Harvard scholar Randall Kennedy calls a “negative good” in his groundbreaking work, “Race, Crime, and the Law.” It is a “good” for police to respond to neighborhoods with heightened crime, but a “negative” when over-policing leads to harms to the very community law enforcement purports to protect. “Tangled Up in Blue” puts this tension on full display.

In late December 2020, I concluded a fifty-page book chapter on the drafting of Section 3 of the Fourteenth Amendment that began by declaring “Section 3 is the most forgotten provision of the forgotten Fourteenth Amendment.” Less prophetic words were never spoken...Section 3 applies to any person “who, having previously taken an oath … as an officer of the United States.” Does that clause apply to the Office of the President of the United States? During the controversy over the emoluments clause, Mr. Trump’s lawyers claimed that the president is not an officer of the United States and, therefore, not subject to the ban on accepting gifts from foreign governments. The overwhelming weight of scholarship and evidence is against this proposition. Norman Eisen, Richard Painter and Laurence Tribe point out, “[T]he text of the Constitution . . . repeatedly refers to the President as holding an “Office.”  For example, Article II, Section I provides that the President “shall hold his office during the term of four years.” It further provides that no person except a “natural born citizen . . . shall be eligible to the office of President,” and addresses what occurs in the event of “the removal of the President from office.”

As recently as 10 years ago, Jeannie Suk Gersen was still telling people that the area of law she specialized in—sexual assault and domestic violence—didn’t hold much interest for the general public. A quiet corner of the profession, she thought. Remembering that now, she laughs. “But, you know,” she adds, “every area of law does end up moving into focus. Because, in the end, law is really about every aspect of our lives.” Which is partly why Gersen, J.D. ’02, has always taken it so seriously. “Words don’t just describe things,” she explains. In the law, “words actually do things.” ... “Jeannie is intellectually fearless,” says Bemis professor of international law Jonathan Zittrain. That’s a common sentiment among her colleagues... “There are a lot of people who are afraid to say things in our business,” says Learned Hand professor of law Jack Goldsmith, “and she’s not afraid to say what she thinks.” ... “Her whole response to Title IX has been very, very striking—and I think completely correct,” says Beneficial professor of law Charles Fried, who was Gersen’s teacher before he was her colleague ... Says her former teacher, Loeb University Professor emeritus Laurence Tribe, “I was always impressed by how both meticulous and yet unconventional her insights were. She would often come at issues in a kind of perpendicular way. Rather than finding a point between A and B, she would say that maybe that axis is the wrong axis.” ... “She has one of those amazing brains,” says Williams professor of law I. Glenn Cohen, who worked on the Harvard Law Review with Gersen. “She was a year ahead of me in law school, and we all regarded her more like a faculty member, even back then. She just seemed to know everything.”

A case recently argued before the Massachusetts Supreme Judicial Court pits the religious freedom of a Christian college against a professor’s right to seek redress for alleged workplace discrimination. Specifically, the SJC in DeWeese-Boyd v. Gordon College, et al. was asked whether the First Amendment’s “ministerial exception” — which the U.S. Supreme Court first recognized in its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church + School v. E.E.O.C. — bars the claims of a professor at an evangelical Christian college who says that she was discriminated against after vocally and publicly opposing her employer’s policies relating to LGBTQ+ individuals. One of the plaintiff’s lawyers, Hillary Schwab of Fair Work in Boston, called DeWeese-Boyd an important case that could impact thousands of workers in Massachusetts, including anyone who works at a religiously affiliated school or hospital...While the purpose of the Department of Pastoral Care that employed the plaintiff in Penn “was to provide religious care to the hospital’s patients,” the purpose of the social work program at Gordon College is something else entirely, argues a brief signed by the Charles Hamilton Houston Institute of Race and Justice, GLBTQ Legal Advocates + Defenders, Lawyers for Civil Rights, and the Massachusetts Employment Lawyers Association, among others.

Republican lawmakers in battleground states are rushing to enact stricter voting laws that Democrats worry could dampen Black and Hispanic turnout, but the moves could end up backfiring because of the changing face of the GOP coalition. The flurry of legislation includes attempts to impose voter ID requirements and roll back pandemic-related expansion to mail-in access, steps that may inadvertently limit the participation of many of the older, rural and blue-collar voters that Republicans now depend on. State legislatures across the country are considering more than a hundred bills that would increase voter ID requirements, tighten no-excuse vote-by-mail, and ban ballot drop boxes, among other changes...This flood of legislation comes despite research showing that voter ID laws passed over the last decade not only don’t hamper minority turnout, but may even boost it by motivating angry Democrats and spurring stronger get-out-the-vote efforts. Nick Stephanopoulos, a Harvard professor who studies voting laws, said that the suburban, college-educated voters moving toward the Democratic Party are the least likely to be affected by new restrictions, since they have the resources to overcome them and tend to be regular voters already.