Media Mentions

Supreme Court Justice Samuel A. Alito Jr. took aim at legal interpretations of a historic Massachusetts lawsuit, appeared to mock Cambridge, and slammed two New England senators as he offered an unusually blunt critique of coronavirus lockdowns and other measures in a speech to a conservative legal group. Alito’s Thursday address to the Federalist Society, which held its annual convention virtually due to the pandemic, overstepped the usual boundaries for a Supreme Court jurist and could undermine the public’s faith in the court, legal observers said. “This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School. “I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again. Alito criticized the use of a 1905 Supreme Court decision in a Massachusetts case to justify COVID-19 restrictions — while taking a dig at Cambridge...Laurence H. Tribe, a Harvard Law School professor emeritus, said Alito’s remarks were “extremely unusual” and that it was “injudicious and highly inappropriate” for a Supreme Court justice to comment “on issues that are bound to return to the Court, like same-sex marriage and religious exemptions and restrictions on personal liberty designed to control the spread of COVID-19.” “He seriously compromised the integrity and independence of his role as a Supreme Court Justice by offering hints and intimations and sometimes all but explicit forecasts of how he would approach matters not yet briefed and argued before him in the context of a specific case or controversy,” Tribe said in an e-mail.

Harvard Law professor Laurence Tribe spoke with MSNBC’s Joy Reid Friday about the lawyers defending President Donald J. Trump, saying they have “an ethical obligation” and should be “ashamed” for “frivolous” lawsuits of this kind. Tribe said, “They are supposed to be officers of the court. There’s an ethical obligation. It’s true you can defend somebody who might be guilty, but helping someone undermine democracy and delegitimize the transfer of power, something we have done ever since John Adams handed the presidency over to Thomas Jefferson, is way beyond that. I think any lawyer worthy of the name would be ashamed to be involved in a frivolous lawsuits of this kind.” Tribe has an impressive 50 years under his belt at Harvard Law and has argued 36 cases before the U.S. Supreme Court. He is co-founder of the American Constitution Society.

Decades of Supreme Court Precedent says colleges can use affirmative action in admissions—but the court's new composition could change all that. In this episode, Harvard Law School professor Jeannie Suk Gersen breaks down everything you need to know about the lawsuit alleging that Harvard discriminates against Asian Americans in admissions. She explains why the stakes of this case may be different from what you think, and why the question of whether Harvard discriminates against Asian Americans can be treated separately from affirmative action. And she speaks so poignantly about her own experience as an Asian American in elite institutions: "At some point in my past," she says, "I might've been one of the students who might've been rated lower" by the "personal" score used in Harvard's admissions process. This is a moving, wide-ranging conversation that goes deeper than most analyses of the admissions lawsuit.

On Thursday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe suggested that President Donald Trump could face criminal charges if he reveals national security secrets after leaving office. “One former White House official said Trump asked about self-pardons, as well as pardons for his family,” said anchor Erin Burnett. “Could he do that, pardon himself and anyone he wanted to for any unknown criminal acts found subsequently before he leaves office?” “He can certainly pardon his family, but pardoning himself would be an extraordinary and unprecedented act,” said Tribe. “Hundreds of years ago, Lord Cook in England established a principle that has been accepted in American law for centuries, and that is you cannot be a judge in your own case. If he tries to pardon himself, I think in the end that pardon would not hold up. But predicting what a court would do with such an unprecedented exercise of power is hard.” “One thing we do know, he certainly cannot pardon himself vis-a-vis New York prosecution, either by Letitia James on behalf of the State of New York or by Cyrus Vance on behalf of Manhattan,” said Tribe. “State and local crimes, serious crimes, often punishable by years in prison, are not subject to the president’s pardon power. Another thing, we know he can’t pardon himself from the possible espionage he might commit after leaving office when he leaks secrets for his own benefit, classified information from his own government. He’s not good at keeping silent. Those future crimes are beyond the reach of the pardon power, vis-a-vis both the state and federal government.”

What can President-Elect Biden do to reverse course on the environment and climate change? What can he accomplish with a Republican-controlled US Senate, pending results of two runoff elections in Georgia? What can he pursue in the executive branch? And how will the left wing of the Democratic Party play into his plans? For our podcast, Trump on Earth, Reid Frazier unpacks all of this with Jody Freeman, law professor and director of the Environmental and Energy Law Program at Harvard Law School. Before that she worked for the Obama EPA, where she helped write fuel efficiency regulations for cars, which were later rolled back under President Trump.

A majority of voters in five states, both red and blue, passed ballot measures that legalized marijuana on Election Day. This show of support at the polls will put more pressure on other states and the federal government to update its drug policies, according to advocates and experts. "This indicates that people are frustrated with the outdated drug policies from the 1970s," Mason Marks, a law professor at Gonzaga University and a fellow in residence at Harvard Law School's Petrie-Flom Center for Health Law Policy, told ABC News. In some cases, like New York, elected officials are publicly sounding the call for major policy changes. In ballot measures passed in New Jersey, South Dakota, Montana and Arizona, residents over 21 will be able to purchase and consume marijuana for recreational purposes. South Dakotan voters also passed a separate measure that legalized medicinal marijuana in the state. Mississippi will also allow adults to use medical marijuana after voters passed an initiative on Election Day. State legislatures and health departments in the five states will come up with the specific regulations for recreational marijuana next year.

Twitter said on Thursday that it had labeled as disputed 300,000 tweets related to the presidential election, or 0.2 percent of the total on the subject, even as some users continued sharing misleading information about the outcome. The disclosure made Twitter the first major social media platform to publicly evaluate its performance during the 2020 election. Its revelations followed intense criticism by President Trump and other Republicans, who have said Twitter’s fact-checking efforts silenced conservative voices...The high-profile changes showed that social media companies are still evolving their content moderation policies and that more changes could come. Misinformation researchers praised Twitter for its transparency but said more data was needed to determine how content moderation should adapt in future elections. “Nothing about the design of these platforms is natural, inevitable or immutable. Everything is up for grabs,” said Evelyn Douek, a lecturer at Harvard Law School who focuses on online speech. “This was the first really big experiment in content moderation outside of the ‘take down or leave up’ paradigm of content moderation,” she added. “I think that’s the future of content moderation. These early results are promising for that kind of avenue. They don’t need to completely censor things in order to stop the spread and add context.” Facebook, which initially said it would not fact-check political figures, also added several labels to Mr. Trump’s posts on its platform. Although Twitter was more aggressive, other social platforms may copy its approach to labeling disputed content, Ms. Douek said.

An op-ed by Cass Sunstein: Facing urgent national challenges and probably a Republican-controlled Senate, President-elect Joe Biden will need to use executive actions to respond to problems such as Covid-19, economic recovery, racial equity and climate change. To understand how that works, it is essential to ask: What are executive actions, anyway? How do they happen? How fast, and how slow? The answers speak volumes about the operation of U.S. government, particularly but not only when Congress is gridlocked. Early in any new presidency, some of the most important initiatives begin with an executive order or presidential memorandum, by which the president issues a formal, public directive to those who work for him — typically members of his cabinet. For example, he might direct the secretary of Health and Human Services to take specific actions to control the pandemic, or he might order the Environmental Protection Agency to come up with a plan to reduce greenhouse-gas emissions from power plants. Orders of this kind get a lot of attention, but they merely start a process. It usually works like this: After a period of weeks or months, a department or agency comes up with a proposed rule, often consisting of hundreds of pages. The proposed rule outlines, and tries to justify, regulatory requirements that the agency plans to impose on the private sector, or perhaps on state and local governments. It might also contain alternatives — for example, more stringent and less stringent options.

An op-ed by Noah Feldman: President Donald Trump’s refusal to concede defeat and allow an orderly transition doesn’t violate our Constitution, as his Republican allies have pointed out. But it does violate unwritten norms that have attained a quasi-constitutional status in American elections. His defiance is dangerous. Even without violating the letter of the law, Trump’s resistance has the capacity to undercut the democratic legitimacy of this election, and the election process as a whole. From the standpoint of the Constitution (the 12th Amendment, if you’re following along at home), the transition to a new president doesn’t officially begin until the states send their slates of electors to be opened in the presence of the vice president and both houses of Congress. Once those electoral college votes are counted, the candidate who gets a majority “shall be the president.” This election cycle, the electors are supposed to vote in their states on December 14, 2020. Congress is supposed to meet in joint session to count the votes on January 6, 2021. In fact, the modern practice of peacefully transferring power operates quite differently. Concession is usually triggered by a custom that appears nowhere in the Constitution, namely the decision desks of the TV networks and newspapers calling the election for the candidate who amasses an unbeatable lead. That custom has developed into a quasi-constitutional norm, one that has been repeatedly followed for many election cycles. There is even a federal statute that arguably relies upon this norm without expressly mentioning it. The law that governs transitions says that the transition begins when the director of the General Services Administration “ascertains” the “apparent” winner of the election and issues a letter saying so, triggering the statute’s transition provisions. The statute doesn’t give the director of the GSA any guidance on how to ascertain the apparent winner, perhaps because the drafters of the statute — and those who have applied it — think it’s obvious: The winner is apparent by the consensus of the networks and newspapers, and the subsequent concession of the loser.

For Sarah Sadlier ’22, studying history isn’t merely about understanding the past but about the insight it lends the present and guidance it provides for the future—especially when it comes to law.

On Tuesday’s edition of CNN’s “OutFront,” Harvard Law professor Laurence Tribe suggested that lame-duck President Donald Trump could be guilty of a federal crime if he continues to refuse the peaceful transition of power following his election loss. “There’s nothing that Pompeo or Trump or any of those guys can do to prevent Biden from becoming the president,” said Tribe. “On January 20, at high noon, he becomes the president of the United States when he takes the oath. And any Trump administration official, including the president himself, who pretends to have power under the executive branch after that point is committing a federal felony, punishable by imprisonment, in addition to any other crimes they might have committed. It’s as though he’s going to build an alternative White House in Mar-a-Lago, and he will pretend to be president even though he’s not.” “When you look through all the cases they’re mounting, every challenge out there, do you see any legal challenge that the president could pursue right now that would change the outcome of this election?” asked anchor Erin Burnett. “Absolutely not,” said Tribe. “And to say that he hasn’t succeeded is an understatement. He’s 0 for 12 in the cases that I’ve counted. I’ve read the complaints. There’s nothing there.”

Even as the pandemic roils the American economy, compensation for US chief executives has largely held up as many corporations adjust their criteria for performance pay and bonuses during the crisis. Only about one-fifth Russell 3000 index of publicly traded firms have reduced CEO pay, according to data compiled by the Conference Board with the consultancies Semler Brossy and Esgauge. Corporate boards have opted for generous packages for executives at the top even when, in many cases, firms have been laying off workers. For CEOs, "it's heads I win, tails I don't lose," said Jesse Fried, a Harvard Law School professor specializing in executive compensation. Fried said boards of directors appear to be willing to make adjustments to compensation criteria when it results in a boost for CEOs, but rarely will cut pay. "Sometimes, there are good reasons for such adjustments: the need to retain talent, or better motivate managers," he said. "But there is a problem here: when firms experience positive shocks that have nothing to do with the CEO's own performance, the compensation committee never adjusts CEO pay downwards so that the CEO is not overcompensated."

The Supreme Court heard arguments today on a Republican challenge to the Affordable Care Act. Harvard Law School professor Alan Jenkins joins CBSN's Tanya Rivero to discuss the implications of the case.

One rare political arena with bipartisan support is the movement to break up and curb the power of tech giants, particularly those operating in search and social media. Early reports indicate that President-elect Joe Biden is aware of this, and that his upcoming policy agenda may reflect that. Some of these reports come directly from the Biden campaign itself, with former head of press Bill Russo retweeting "Hell yes" to a Sacha Baron Cohen post that depicted outgoing President Donald Trump alongside Facebook CEO Mark Zuckerberg paired with the caption, "One down, one to go." There are also reports from reputable outlets like The New York Times, which on Tuesday revealed that Biden is not only expected to pursue an antitrust lawsuit filed against Google last month, but may pursue additional antitrust cases against Amazon, Apple and Facebook...One key difference between Trump and Biden is that the current president has made it clear he views his policies toward Big Tech as ways of inflicting punishment. In May, after threatening to "close down" social media platforms that fact-check him, Harvard Law professor Laurence Tribe told Salon by email that "the threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment." He added, "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

President Donald Trump's campaign launched its broadest challenge yet to the results of the election that appears destined to push him from office, accusing Pennsylvania officials of running a "two-tiered” voting system – in-person and mail – that violates the U.S. Constitution. Legal experts said the case has little chance of succeeding, for a variety of reasons: Courts are wary of invalidating legally cast ballots. The issues raised, even if true, don't represent a constitutional question. And mail voting, used in many states, is both common and constitutional...Laurence Tribe, a constitutional law expert at Harvard Law School, said the lawsuit "fails to allege facts sufficient to support a conclusion that the relief sought would alter the election's result – a key difference between this complaint and the submission leading the Supreme Court to intervene in the state recount in Bush v. Gore" in 2000. As of Monday, Biden led in Pennsylvania by more than 45,000 votes – greater than Trump’s lead when he won Pennsylvania in 2016.

At a frenetic and freewheeling rally in Macon, Ga., in mid-October, with less than three weeks to go before the election, President Trump turned introspective. He reflected on what sets him apart from every other president in American history: his refusal to be presidential...One of the things Trump has forced presidential scholars to realize “is the extent to which shamelessness in a president is really empowering,” says Jack Goldsmith, a former Justice Department official in the George W. Bush administration who teaches at Harvard Law School. The current presidency also reveals “the extent to which the whole system before Trump was built on a basic assumption about a range of reasonableness among presidents, a range of willingness to play within the system, a range of at least a modicum of understanding of political and normative constraints.” Goldsmith and others argue that Trump’s steamrolling of norms could do lasting damage to both the stature of the presidency and the institutions of democracy if reforms aren’t devised to bolster the fragile tissue of these shared understandings... “When you pound the Justice Department and pound the intelligence community as being corrupt, incompetent, making up stories about what they do, it’s enormously demoralizing for those institutions,” says Jack Goldsmith, the former Justice Department official. “It reduces the legitimacy of those institutions in the eyes of the country.”

An op-ed by Noah Feldman: The Supreme Court signaled today during oral argument that it won’t be striking down the whole Affordable Care Act as the Trump administration has asked it to do. The swing justices did seem especially eager to make their views clear — and to dispel any public fear that the court’s ever-deepening conservative majority would do now what it failed to do back in 2012 and undo “Obamacare” altogether. That’s probably good news for Republicans, given that the 10-year old ACA is politically popular. And it’s especially good news for Republicans facing runoff elections in Georgia, which will determine control over the U.S. Senate. It will now be much harder for Democrats to argue that Georgians should give both seats to the Democrats to protect or, if necessary, reenact the ACA. In truth, the possibility that the court might listen to the legal arguments of the Trump Department of Justice was always far-fetched. So it isn’t totally fair to quote Mr. Dooley’s famous observation that the Supreme Court follows the election returns. The issue before the court is a little arcane, but it can be summed up with only a little bit of oversimplification. When Chief Justice John Roberts upheld the individual mandate provision of the ACA in 2012, he said the mandate was a tax that must be paid by anyone who didn’t buy healthcare insurance in the private market or on a public exchange. Subsequently, Congress eliminated the penalty entirely. In effect, there is now no longer any penalty for not buying health insurance.

An op-ed by Cass Sunstein: President-elect Joe Biden’s transition team has announced its four top priorities, and no surprise, climate change is among them. For that problem, the social cost of carbon is the straw that stirs the drink. It’s the most important number you’ve never heard of. That number is designed to reflect the monetary equivalent of the damage done by a ton of carbon emissions. For that reason, it is fundamental to decisions about the stringency of coming regulations from the executive branch — governing the fuel economy of cars and trucks, emissions limits for power plants, energy efficiency requirements for appliances and much more. If the social cost of carbon is set high, we’re going to see aggressive regulations, significantly denting the risk of climate change. If the social cost of carbon is set low — well, not so much. In 2009, the administration of President Barack Obama said that the social cost of carbon would be around $52 in 2020. In 2017, President Donald Trump and his appointees slashed that figure to somewhere between $1 and $6. The gap, surprisingly, wasn’t about politics, at least not in any simple sense.

Just as the country cannot seem to agree on whether to wear masks or stay six feet apart, there are also disagreements bubbling up over how to celebrate Thanksgiving. To gather or not to gather? Masks or no masks? Is everyone invited or only a select few? Strong opinions can become a recipe for frustration and disappointment...For other families, however, it won’t be quite so easy to find a solution. In that case, consider it a shared challenge, where everyone’s voice matters. “Look at their underlying interests,” said Daniel L. Shapiro, an associate professor of psychology at Harvard Medical School and McLean Hospital and the author of “Negotiating the Nonnegotiable. How to Resolve Your Most Emotionally Charged Conflicts.” For example, if your relatives want to avoid masks and you don’t, are they worried about autonomy or personal liberty? Or are they exhausted by the pandemic and just want a normal family gathering without worrying about a bunch of rules? The goal is to ask questions, listen and understand where each person is coming from. What probably won’t work “is turning the issue of whether to wear a mask or not into a positional battle,” Dr. Shapiro said.

Since Joe Biden left office almost four years ago, antitrust enforcement has gone from a backwater of Democratic policymaking to a key tool for reshaping the U.S. economy. That trend is expected to continue -- and could even accelerate -- under a Joe Biden administration, according to antitrust experts and those who advised his campaign on competition policy. Biden will take office as progressives have come to see antitrust enforcement as a means for tackling the power of dominant companies and improving economic outcomes for workers. There’s mounting evidence that many industries have grown more concentrated, contributing to such economic woes as income inequality, declining business investment and stagnant wages...Biden economic adviser Ben Harris also has an interest in antitrust and how it can help workers. He is writing a book with Harvard Law School’s Sharon Block titled “Inequality and the Labor Market: the Case for Greater Competition.” It will propose reforms to labor and antitrust laws with the goal of pushing wages higher, making workplaces safer and increasing mobility. Using antitrust law to help workers is one of the policy recommendations from the unity task force, made up allies of Biden and Senator Bernie Sanders of Vermont. The document calls for antitrust enforcers to consider possible harmful effects on labor markets when evaluating mergers.

On November 7, Joe Biden was projected to become President-elect. This news alert provides a high-level review of issues to watch and changes to expect in a Biden administration...The next few years will see significant shifts in U.S. environmental and natural resource law and policy, as well as changes in political and perhaps some career personnel at the U.S. Environmental Protection Agency (EPA) and other federal agencies that establish and implement U.S. environmental regulation. The next six months look to be especially consequential, as the Trump administration seeks to finalize certain ongoing efforts while the new Biden administration identifies and implements early priorities...There are over a dozen, maybe two dozen, different executive orders and many, many guidance documents relevant to environmental policy direction. These do not have the force of law but often direct agencies to take specific actions. The Environmental Law Institute and Harvard Law School’s Environmental and Energy Law Program have produced useful references on this subject. Note that rescinding an Executive Order, which can be done immediately, does not rescind implementing actions, such as new regulations finalized in response to the Executive Order.