Media Mentions

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.

On January 20, while the country was focused on the presidential inauguration, the Alaska Supreme Court heard arguments in a case that could upend the big money systems that have come to fund the nation's elections. It's time for the rest of the country to pay attention. The case comes from Lawrence Lessig, a law professor at Harvard and founder of the organization EqualCitizens, who spent Inauguration Day on Zoom arguing against super PACs...Lessig's case asks the Alaska court — and potentially the US Supreme Court — to recognize a different type of corruption. His argument relies on originalism, an interpretive technique that examines how ordinary people would have understood the Constitution back when it was first proposed. In support of his originalist argument, Lessig marshals impressive evidence that the framers' generation had a deep and capacious understanding of political corruption. People back then understood bribery, of course. But they also worried about institutional corruption: even if a particular individual isn't taking bribes, an institution as a whole can become corrupted by an improper dependence on anything other than the support of voters. And super PACs corrupt the system by making politicians far too dependent on a small number of super-wealthy donors.

Friday is the delayed start of the tax filing season. Like everyone else, the already short-staffed IRS had a tough time adjusting to working during in the pandemic, plus it had to figure out how to get two rounds of relief payments out, which put the agency a little behind. In 2020, the filing deadline was extended to July 15 to make things a little easier. This year, the traditional April 15 cutoff is back, so the next few months are likely to be fairly stressful at the IRS, and this year’s tax season is probably going to be a lot more stressful for many filers as well. And the calculations may be a bit more complicated, especially for people who lost their jobs or had their hours cut back. “A lot of people don’t realize that when you get unemployment, it’s taxable. So they might not have had adequate withholding,” said Keith Fogg, a professor at Harvard Law School who also runs the federal tax clinic there. “Last year, a lot of people are pulling money out of their retirement accounts to try to make ends meet, which is creating more taxable income,” he said.

President Joe Biden is hoping to turn the page after the U.S. Senate acquittal of Donald Trump over the deadly storming of the Capitol building, even as Mr. Trump is vowing to stage a political comeback. Mr. Biden declared that the country would learn from the threat to its political system to ensure that such violence never happens again. He is hoping his administration and Congress can now focus on pandemic relief, immigration and his cabinet appointments...Whether Mr. Trump will face criminal charges is unclear. Constitutional scholar Laurence Tribe contended that, despite Mr. Trump’s acquittal, the trial had made a definitive statement about his unprecedented actions as president. “The impeachment permanently establishes a historical record of how this president was probably the most dangerous in American history,” said Prof. Tribe of Harvard Law School. “His astonishing and long-lasting campaign to overturn a fair election and hold onto power by whatever means possible distinguishes him from any other president.”

Donald Trump, who as president incited a riot in an effort to stay in office despite losing the 2020 election, was acquitted by the U.S. Senate on Saturday, putting an end to his second impeachment trial. He was not acquitted because he was innocent. He was acquitted for one reason: Donald Trump and his supporters have a toxic sense of entitlement, believing that they should never lose an election...Harvard Law colleague Laurence Tribe agreed that Trump's acquittal in the first impeachment trial paved the way for the misconduct that got him impeached a second time. "The first impeachment led almost inevitably to the second once Trump, whose whole modus operandi is built on lying, cheating, and stopping at nothing to secure power and fame was validated by the Senate's unfortunate acquittal the first time around," Tribe told Salon by email. "Having thought nothing of exposing the people of Ukraine to slaughter at the hands of Russia by threatening to withhold congressionally appropriated aid in an effort to pressure Ukraine's president Zelensky into injuring Biden by pretending to be investigating him and his son criminally, Trump upped the ante by threatening criminal prosecution of Georgia's Secretary of State Raffensperger in order to get Raffensperger to steal that state's electoral votes from Biden and, when that failed, by inciting insurrection by an armed and angry mob in a treasonous attempt to overturn the results of the 2020 election."

Jamie Raskin had finished a face-to-face interview with the Guardian and was on his way home. It was late on Saturday night in October 2018. But then he thought of a point he hadn’t made and, ever fastidious, restarted the conversation by phone. “Straight white men are already a minority in the Democratic caucus but when the big blue wave hits, we’re going to be moving much closer to parity in terms of women and men, at least on the House side,” he said, a prediction that came true a month later in the midterm elections...Raskin graduated from Georgetown day school in 1979 then studied at Harvard and its law school, where he was an editor of the Harvard Law Review and his teachers included Professor Laurence Tribe. Tribe recalls that Raskin and his wife, Sarah, met in his class on the constitution. “He is one of the most impressive students that I have ever come to know and is also an extremely impressive human being,” he said. “The courage that he has shown in the face of unthinkable personal tragedy has been something to behold. As the lead impeachment manager he couldn’t possibly have done a better job. I’ve taught quite a few impressive people, like President Obama and Chief Justice [John] Roberts and Justice [Elena] Kagan, and he is right at the top of the students that I feel very proud to have played at least some small role in educating.” Tribe remains in touch with Raskin, who told him he feels his late son is “with him” during this effort. “He is fully aware of the enormous historical import of this trial and the weight he carries on his shoulders and he’s carried it with grace,” Tribe said. “But for his awareness of that, I think he would be spending more time with his family because they’re still in mourning.”

An op-ed by Gary Corn and Jack Goldsmith: Today the technology and law programs that we supervise at the American University Washington College of Law and the Hoover Institution at Stanford University, are publishing a report entitled “Chinese Technology Platforms Operating in the United States.” The report sets forth a framework for understanding the various threats posed by Chinese-owned technology platforms operating in the United States (e.g. TikTok), and for assessing the various costs and benefits of proposed responses to these threats. The report is a joint-product by a group of people with diverse backgrounds, experiences, and perspectives on these matters: Jennifer Daskal, Chris Inglis, Paul Rosenzweig, Samm Sacks, Bruce Schneier, Alex Stamos, Vince Stewart and the two of us. Some background and elaboration: Among the many challenges the Biden administration has inherited, a frayed U.S.-China relationship figures prominently. The Trump administration's approach to China was driven by China’s emergence as a great power competitor, and frictions inherent in that recognition manifested across a range of issues not the least of which were trade and regulation of Chinese technologies. The Trump administration took direct aim at a number of technologies, from Huawei’s 5G to Chinese manufactured small drones. In late 2020 and early 2021, it took steps to effectively ban TikTok, WeChat and other Chinese-owned apps from operating in the United States, at least in their current form.

An op-ed by Vivek Wadhwa and Alex Salkever: We love Tesla — we’re huge fans of the way the company has made electric cars cool.  The Palo Alto, Calif.-based company’s Model 3 is probably the most appetizing lower-cost electric vehicle (EV) on the market today, and is well on its way to becoming a massive success. And Tesla’s rapid escalation in battery production has forced down prices of lithium-ion batteries. Yet we’re rejoicing in the news from Schmidt Automotive Research that Tesla has lost market share in the world’s largest EV market, the European Union. We’re rejoicing because this is a clear sign of global interest in EVs. In the European Union, Tesla’s loss in market share derived partly from large incumbent automakers’ increasing vigor in making their own EVs more attractive, through both pricing and design diversity. A broader, deeper market for these fuel-efficient, pollution-free vehicles is good for the planet and will further reduce prices. EVs’ path to further improvement also makes complete sense. In reality, internal combustion engines (ICEs) are today’s horse-and-buggy: well understood, reliable, and with a great infrastructure, but ultimately unable to compete. At the rate at which battery prices (and, by extension, EV prices) are falling and adoption is increasing, all car makers will have commenced publicly phasing out ICEs. General Motors has already taken the plunge and will phase out combustion engines by 2035.