Media Mentions

An article by Noah Feldman: If you’re voting on Super Tuesday, the Supreme Court calendar has a message for you. This week, the court will consider a raft of blockbuster cases on immigration, abortion, and the future of the Consumer Finance Protection Bureau. Today, the court also accepted a case on the fate of the Affordable Care Act. The message could not be clearer: unless Democrats elect a president whose coattails produce a Senate majority, the future of the Supreme Court is going to be intensely conservative, and it’s going to have a major effect on the future of our politics. Traditionally, Democrats have paid less attention to the composition of the Supreme Court as a campaign issue than have Republicans. That’s been a mistake. For decades, liberals won landmark Supreme Court victories on the occasionally liberal tendencies of two Ronald Reagan appointees, Justices Sandra Day O’Connor and Anthony Kennedy. Those days are behind us. President Donald Trump’s Supreme Court nominees, Justices Neil Gorsuch and Brett Kavanaugh, won’t be softening their hardline conservatism in the foreseeable future.

The Supreme Court will hear arguments on Tuesday in a case over whether the Consumer Financial Protection Bureau, the regulatory agency established in the wake of the 2008 financial crisis, is constitutionally structured. The case, key to the future of the CFPB, could also have broad implications on other independent federal agencies, according to experts. A decision is expected by the end of June. The dispute turns on whether the CFPB’s director is given too much independence... Herz said the case took on a new significance because of the controversy over the sentencing last month of Republican operative Roger Stone, a friend of the president who was convicted crimes related to witness tampering and lying to Congress. After Trump suggested on Twitter that the sentence sought by the Justice Department was too stiff, top DOJ officials overruled career prosecutors in order to seek a more lenient sentence. That move prompted all the Justice Department attorneys working on the case to remove themselves from it in a shocking mass exodus. The developments came as some scholars, including Harvard Law School professor Cass Sunstein, have proposed that Congress make the Justice Department an independent agency.

Congress cannot enforce its duly-authorized subpoenas against the executive branch using the judicial branch, according to a blockbuster federal court ruling released late Friday afternoon that shocked and appalled several legal experts. In the case stylized as Committee on the Judiciary v. Donald F. McGahn, the U.S. Court of Appeals for the District of Columbia ruled that former White House counsel Don McGahn did not have to abide by a congressional subpoena issued by the House Judiciary Committee during last year’s failed impeachment-and-removal effort. The lengthy 88-page decision contains a wealth of controversial legal material–spanning the decision, a concurrence and a dissent–for scholars and lawyers to agree with and object to but the basic reasoning for the court’s opinion is that the question itself is simply non-justiciable...Harvard Law Professor Laurence Tribe shared his thoughts via email: "I found the court’s opinion wholly unconvincing, the concurring opinion transparently forced, and the dissent at least initially persuasive. The net effect of this circuit court decision, if upheld by SCOTUS, would be to destroy the vital impeachment power altogether whenever a president digs in and essentially dares the country to “come and get me while I hold all the evidence that proves my guilt of the highest crimes imaginable.” That just cannot be the way our Constitution was designed to work. It was not a suicide pact. We can only hope that Chief Justice [John] Roberts isn’t ready to sign on to so lawless a vision of our republic."

Not a single significant policy or initiative proposed by the candidates for the Democratic presidential nomination is likely to survive a Supreme Court review. Nothing on guns, nothing on climate, nothing on health care—nothing survives the conservative majority on today’s court. Democrats can win the White House with a huge popular mandate, take back the Senate, and nuke the filibuster, but Chief Justice John Roberts and his four associates will still be waiting for them. If the Democratic candidates are serious about advancing their agenda—be it a progressive agenda or a center-left agenda or a billionaire’s agenda—then they have to be serious about undertaking major, structural Supreme Court reform...As Harvard Law professor Laurence Tribe, a proponent of term limits in theory, explained the difficulties to me, “For several years, I was inclined to favor term limits, but I’m increasingly doubtful that the Supreme Court, as currently composed, would agree that Article III can be interpreted the way it would have to be in order to make Supreme Court appointments terminable after a fixed number of years...That, in turn, suggests that the massive effort and political capital that would be required to get a federal statute enacted limiting the terms of Supreme Court justices just wouldn’t be worth it.” This is the most difficult barrier for many court reform proposals: the current Supreme Court.

A podcast by Noah Feldman: Marc Lipsitch, an epidemiologist at Harvard University, predicts that between 40 to 70 percent of adults in the world will become infected with the coronavirus.

In a 2-to-1 decision, a three-judge panel on Friday held that the dispute between the House and the president over the subpoena for former White House counsel Donald McGahn to appear and give testimony is not one the courts can decide. The court, in essence, held that this is a political dispute for which courts cannot be the referee. The notion that courts cannot weigh in to enforce subpoenas seems odd, to put it mildly. In holding that Congress can’t seek redress in the courts, the court encourages presidents to stonewall Congress and get away with illegality. Constitutional scholar Laurence Tribe observed: “The net effect of this circuit court decision, if upheld by the Supreme Court, would be to destroy the vital impeachment power altogether whenever a president digs in and essentially dares the country to ‘come and get me while I hold all the evidence that proves my guilt of the highest crimes imaginable.’ ” He added, “That just cannot be the way our Constitution was designed to work. It was not a suicide pact.” The court did not reach the merits of the case. The majority specifically did not address the president’s claim of absolute immunity. There were actually two votes against the proposition that a president can simply deny access to witnesses and documents.

An article by Cass Sunstein: At this stage, no one can specify the magnitude of the threat from the coronavirus. But one thing is clear: A lot of people are more scared than they have any reason to be. They have an exaggerated sense of their own personal risk. How come? The best answer goes by an unlovely name: “probability neglect.” Suppose that a potential outcome grips your emotions, maybe because it is absolutely terrifying, maybe because it is amazingly wonderful. If so, there is an excellent chance that you will focus on it -- and pay far less attention than you should to a crucial question, which is how likely it is to occur. One of the simplest and most vivid demonstrations comes from Christopher Hsee of the University of Chicago and Yuval Rottenstreich of the University of California at San Diego. They asked a group of people how much they would pay to avoid a 1% chance of a “short, painful, but not dangerous electric shock.” They asked another, similar group of people how much they would pay to avoid a 99% chance of getting such a shock. There’s a massive difference between a 1% chance and a 99% chance. But people didn’t register that difference. To avoid a 1% chance of an electric shock, the median amount that people were willing to pay was $7. To avoid a 99% chance, the number was $10 – not a whole lot higher.

An article by Noah Feldman: The coronavirus called Covid-19 has spread beyond its origin in Wuhan, China, and has arrived on U.S. shores. I’m a law professor, not an epidemiologist, so my thoughts immediately turned to how the law would shape America’s collective response to a broader pandemic — and what the government’s power will mean for individual rights under the Constitution. It’s a question that could soon become an urgent one — I recently interviewed Marc Lipsitch, the brilliant epidemiologist who runs the Center for Communicable Disease Dynamics at Harvard’s T.H. Chan School of Public Health, for my podcast. Lipsitch told me, very calmly, that based on past pandemics and current information, 40-70% of adults in the world are likely to catch the virus in the absence of strong countermeasures. Between one and two percent of those could die. Those are frightening numbers. A pandemic of this scale, and the efforts taken to contain it, would likely result in fierce debates over civil liberties as well as legal action. There’s already been one lawsuit, and there will probably be more. (After all, it’s the American Way.)

An Apple shareholder proposal critical of the company's app removals in China received a relatively high level of support at the iPhone maker's annual meeting on Wednesday, enough to push the company to respond, experts said. The proposal, which called for Apple to report whether it has "publicly committed to respect freedom of expression as a human right," was defeated, but 40.6 percent of votes cast supported the measure, according to company figures. The proposal highlighted Apple's 2017 removal of virtual private network apps from its App Store in China. Such apps allow users to bypass China’s so-called Great Firewall aimed at restricting access to overseas sites, and Apple's action was seen as a step to preserve access to the country's vast market..."A total this high is a striking warning — and it must have come from big institutional investors, not just retail shareholders — that Apple’s human rights policy in China has become a material risk for the company’s reputation," said Stephen Davis, a senior fellow at Harvard Law School's Program on Corporate Governance. "Apple will be under great pressure to respond rather than ignore this vote," Davis said.

The re-election campaign of President Donald Trump accused The New York Times of libel Wednesday, claiming that an editorial about the Russia scandal was both "false and defamatory." Trump campaign attorneys alleged in the filing that The Times "knowingly published false and defamatory statements" about the president in a March 2019 editorial by former executive editor Max Frankel...The lawsuit is a threat to the press' First Amendment rights, Harvard Law professor Laurence Tribe told Salon by email Thursday. "The Trump lawsuit against the Times is utterly frivolous on its face in light of the First Amendment, because the allegations meet none of the settled requirements for imposing liability on behalf of an allegedly defamed public official under New York Times Co. v. Sullivan," Tribe said...Tribe added that "the lawsuit should be dismissed as soon as possible and costs should be assessed for the abuse of process. The suit is a clumsy outburst designed to chill the free press and not a responsible use of the judicial system. The lawyers who signed the complaint should be ashamed of themselves."

If Michael R. Bloomberg is elected president, he says he would be “extremely reluctant” to order the military to attack another country without congressional authorization or an imminent threat to the United States. But he left himself wiggle room, stopping short of saying it would be unconstitutional for him to use force without lawmakers’ approval in other situations...Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in George W. Bush’s administration, said that while many of Mr. Bloomberg’s responses were fairly conventional, his stated inclinations about when he would unilaterally use force abroad seemed narrower than recent presidents of both parties. “While preserving wiggle room, the thrust is that the president should not use force except in cases of self-defense, pretty narrowly conceived,” he said. “That position would rule out Trump’s use of force in Syria in response to chemical weapons attacks, Obama’s use of force in Libya and in some strikes in Iraq, and some of the broader statements of self-defense power made during the George W. Bush administration.”

Samantha Power never imagined she would write a memoir. But Power, who served as United Nations ambassador under President Obama, told a Harvard T.H. Chan School of Public Health audience on February 25, 2020 that she thought it was important to share her experiences—about being an immigrant from Ireland, her career, dealing with anxiety, romance, even baseball—and of what it was like trying to achieve major goals despite sometimes questioning her ability to do so. Speaking before a standing-room-only crowd in Kresge G1, Power said that she wished that more people—public officials, doctors, lawyers, or others—would open up more about what it’s like to try to improve the state of the world, because the process “is very shrouded from the outside. And that means you end up making all the mistakes the first time yourself. What I hope to do is spare people some of the many mistakes that I’ve made along the way.”

An article by Richard Lazarus: Reports emerged in January from inside the Trump administration that the president was preparing a new thrust in his Ahab-like quest to destroy every last fiber of the Obama administration’s programs to address the threat of climate change. Trump has his sights on one of President Barack Obama’s signature accomplishments—the slashing of greenhouse gas emissions by cars and trucks. Fortunately, there is good news in the bad news. Law and science still matter and the president’s legal and scientific work in repealing the Obama climate programs during the past three years have been so consistently shoddy that almost every one of his efforts to date is likely to be overturned by the courts. The president and his political appointees at the Environmental Protection Agency are making the same mistake over and over. They first decide what they want the answer to be, and then try to twist the law and the science to back that conclusion. The problem is that law and science don’t work that way. They are not so easily manipulable.

An op-ed by Hilary Hurd ’20 and Benjamin Wittes: The Democratic presidential candidates have been sparring over whether Sen. Bernie Sanders (I-Vt.) has been adequately forthcoming about his medical records. At a debate in Las Vegas this month, former South Bend, Ind., mayor Pete Buttigieg said Sanders needs to disclose “full medical records, do a physical, and release the readout.” The Sanders campaign says demanding greater detail on Sanders’s health resembles “the kind of smear” that demands for Barack Obama’s birth certificate represented. It’s easy to understand why Sanders is not eager to release more of his health history. He’s a 78-year-old who weighs 179 pounds and recently had a heart attack. And he’s not the only one. Of the major Democratic candidates, only Sen. Elizabeth Warren (Mass.), former vice president Joe Biden and Sen. Amy Klobuchar (Minn.) have released comprehensive medical reports. Of course, President Trump as a candidate famously released — in lieu of his physical — a letter from a doctor declaring that “if elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency” — a letter it later emerged that Trump had dictated himself.

In an era when millions of songwriters upload music to the internet—and just about any song can be plucked from obscurity by TikTok teens—it seems inevitable that the same melodies end up in different songs. There have been a number of high-profile music copyright-infringement cases, including a multimillion-dollar decision against Katy Perry for her song “Dark Horse.” A jury found that she’d infringed upon the copyright of Flame, a Christian rapper who’d posted a song with the same melody to YouTube, even though Perry insisted that she’d never heard of the song or the rapper. For some musicians, musicologists, and lawyers, the verdict felt scary; after all, large numbers of songs now live on SoundCloud and YouTube. It became thinkable to ask: Could the world run out of original melodies? ... “I just don’t get it,” Lawrence Lessig, an eminent copyright scholar at Harvard Law School, told me in an email. “Whether or not melodies can be represented in math, they are not just math. So that seems like a dead end.” Lessig did agree that it’s unfair that anyone can be dinged for “copying” work even if they could not be shown to have consciously done so. “The whole doctrine of subconscious copying is absurd. So I get the motivation,” he said.

An op-ed by Cass Sunstein: After an unprecedented delay, the Donald Trump administration has released what is required by law to be an annual report on the costs and benefits of federal regulations. The good news in this important document is that in the last two years, the costs of federal regulations have been stunningly low. The less good news is that in the last two years, the benefits of federal regulations have been...stunningly low. A central reason is that in this period, relatively few regulations have been issued that had a significant economic impact.

An Apple Inc shareholder proposal critical of the company’s app removals in China received a relatively high level of support at the iPhone maker’s annual meeting on Wednesday, enough to push the company to respond, experts said. ... “A total this high is a striking warning — and it must have come from big institutional investors, not just retail shareholders — that Apple’s human rights policy in China has become a material risk for the company’s reputation,” said Stephen Davis, a senior fellow at Harvard Law School’s Program on Corporate Governance. “Apple will be under great pressure to respond rather than ignore this vote,” Davis said.

In October, the Supreme Court heard a lawsuit from Stephens challenging her termination based on Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating on the basis of “sex.” ... Gorsuch ignored that research, citing only a minority of scholars who agree with him. “I admire Justice Gorsuch’s writing,” Cass Sunstein, a Harvard law professor and former Obama-administration official, told me. “But his discussion in Gundy isn’t close to historical standards. There’s a ton of terrific work on the nondelegation doctrine, and he cites none of it. Then there is some not-terrific material, which he does cite.”

An article by Lawrence Lessig: After almost two years of hard work, suffering thousands of hours of television ads, endless digital ads, house parties, town halls, coffee shop speeches, and millions and millions of robocalls, New Hampshire voters have given us their insight in to the 2020 Democratic presidential campaign: Bernie Sanders convinced 25.6% of them, Pete Buttigieg won over 24.1%, and Amy Klobuchar surprised everyone by rallying 19.6%. But the views of the rest of New Hampshire, more than 30% of the votes cast – which is more than total votes of the frontrunner – will not count in the final results because no candidate getting less than 15% of the vote will get any delegates from New Hampshire. We could have learned so much more. No one should underestimate the gift that New Hampshire gives to the rest of America. Most of America pays little attention to primary races. Most never attend a public meeting or meet a candidate running for any federal office. But New Hampshire takes its first-in-the-nation primary responsibility very seriously. Almost 300,000 turned out, about 20% higher than in 2016. And that is on top of a practically endless engagement with candidates in every possible public place – as well as countless living rooms across the state.

A coalition of 39 states, including Nevada will look into the marketing and sales of vaping products by Juul Labs, including whether the company targeted youths and made misleading claims about nicotine content in its devices, officials announced Tuesday. Attorneys general from Nevada, Connecticut, Florida, Oregon and Texas said they will lead the multi-state investigation into San Francisco-based Juul, which also is facing lawsuits by teenagers and others who say they became addicted to the company’s vaping products. The state officials said they also will investigate the company’s claims about the risk, safety and effectiveness of its vaping products as smoking cessation devices. Juul released a statement saying it has halted television, print and digital advertising and eliminated most flavors in response to concerns by government officials and others...The scope of the investigation by dozens of states leaves Juul with little choice but to change its marketing practices, said James Tierney, a former attorney general of Maine. “When you see these kinds of numbers, it means they’re in a world of hurt,” said Tierney, a lecturer at Harvard Law School. “They can’t seriously litigate this.”

An article by Noah Feldman: Here’s the good news about President Donald Trump’s call for Justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from all future cases involving his administration: It won’t move the two stalwart liberal justices an inch. Better still, questions of any justices’ recusals are decided by — you guessed it — the justices themselves. Sotomayor and Ginsburg can do whatever they want, and that isn’t going to include being pushed around by Trump, or by anyone else for that matter. Nevertheless, it’s serious business that Trump has suggested that there were “obviously inappropriate” things in Sotomayor’s recent dissent criticizing his administration for repeatedly seeking emergency actions from the Supreme Court. Trump is wrong: There’s nothing improper in the dissent. It’s perfectly appropriate for justices to criticize an administration’s legal positions in strong terms. What’s really inappropriate is that the President of the United States is trying to undercut the legitimacy of individual liberal justices — and of the Supreme Court itself. That isn’t normal and it isn’t OK.