Media Mentions

The man who taught Constitutional Law to Supreme Court Chief Justice John Roberts expects him to vote to allow witnesses if he needs to cast a tie-breaking vote while presiding over President Donald Trump’s impeachment trial in the U.S. Senate. Prof. Laurence Tribe was interviewed by MSNBC’s Lawrence O’Donnell on Thursday. ...“Well, he was very smart,” Tribe replied. “He’s very thoughtful, he cares about the institution.” Tribe, who has reportedly advised House Democrats on impeachment, then offered a major prediction. “If he is asked to issue a subpoena, I think he will use his power to do it,” Tribe said.

Laurence Tribe tells Lawrence O’Donnell that after hearing the new evidence revealed by Lev Parnas, the Senate trial must have witnesses because senators are not “free to take a solemn oath to do impartial justice and then shut their eyes, shut their ears, refuse to listen to obviously relevant facts.”

Republicans have often said in the course of the impeachment process that President Trump has never been accused of breaking any laws. Beside the fact that Framers did not require a violation of statute for the grounds of impeachment, this is wrong. ...Constitutional scholar Laurence Tribe tells me, “The GAO finding that President Trump’s decision to withhold from Ukraine the military aid appropriated by Congress was illegal under the Impoundment Control Act gives the lie to the claim that the Articles of Impeachment charge no illegal act.” As Tribe points out, “It was an irrelevant claim to boot, because a ‘high Crime and Misdemeanor’ needn’t be conduct that is illegal under any federal statute.”

ears ago, students chatting during the precious breaks in on-campus interviewing cattle calls would ponder who among them would really be interviewing with Chadbourne & Parke. The now-deceased firm — sucked up into the Norton Rose Fulbright megalith — was on everyone’s radar as one of the firms representing big tobacco against allegations that the company had willfully deceived the public about health risks for decades. Everyone may deserve an attorney, but not everyone deserves you as an attorney, and for law students at elite schools back then, future lawyers that every law firm would love to have, this was an opportunity to exert some social pressure on a firm tying its bottom line to a public health crisis of the client’s own making. A couple of decades down the road, law students are taking a page from the past and upping the ante. Last night, law students at HLS staged a protest at a Paul Weiss recruiting event demanding the firm drop Exxon as a client, arguing that Paul Weiss attorneys have facilitated Exxon’s efforts to undermine climate change action.

Harvard law students have disrupted a recruiting event for Paul Weiss, the law firm representing ExxonMobil in climate lawsuits, in an escalation the protesters hope will open a new front in climate activism in the legal world. The oil giant is facing a series of lawsuits in the US related to claims that it knew petroleum products were heating the planet and sought to persuade the public otherwise. The students say Paul Weiss has cultivated a reputation as a liberal corporate law firm, despite representing oil companies, tobacco and big banks. Ted Wells Jr, a partner at the New York firm, is a prominent Democratic donor.

FERC’s December order to exclude wind, solar and nuclear power from part of its largest electricity market is drawing support from several largely fossil fuel power producers that argue the decision won’t hobble the growth of renewable energy even as it boosts coal and gas plants. FERC last month voted to set a price floor that will effectively exclude renewable and nuclear sources that receive state support from the PJM capacity market. Environmentalists lambasted the order as an attack on clean energy and a bailout for fossil fuels, but its supporters say the effects on wind and solar — which were only about 1 percent of the capacity cleared in PJM’s last auction — will be minimal...Regardless of whether FERC grants a rehearing, renewable energy companies and environmentalists are likely to challenge the order in court, arguing it violates state jurisdiction over power plant siting and contending that FERC acted in an “arbitrary and capricious” manner because it did not consider the potential costs to consumers when crafting the order. “There are lots of opportunities for 'arbitrary and capricious' challenges,” said Ari Peskoe, director of the Harvard Electricity Law Initiative, including FERC’s broad definition of which subsidies will qualify for the price floor, and why FERC did not include an option for individual plants to opt out of the capacity market. “Rehearing request deadline is next Tuesday. We’ll have a better picture of the legal arguments then.”

It was 1970. Congress was wrestling with whether to give the right-of-way necessary to build a huge, 800-mile oil pipeline across Alaska, when a district judge blocked the project, using a brand new law requiring federal agencies to consider the environmental impact of projects...Exactly 50 years later, that law – the National Environmental Policy Act (NEPA) – is under attack. The Trump administration last week announced proposed reforms to the act that would significantly reduce its scope. It’s the latest move in an unprecedented effort to roll back not only recent Obama-era environmental regulations but also some of the bedrock laws that have shaped federal environment policy since the 1970s...Whittling away the government’s regulatory structures has always been part of Mr. Trump’s agenda, but his dismantling of the EPA is unique, says Caitlin McCoy, a fellow in the Environmental and Energy Law Program at Harvard Law School who tracks such changes. Changing NEPA is the latest sign that the administration wants to undermine the statutory foundations of the EPA. “They’re trying to take away the very things that the agency relies upon to do its job and to really severely damage its legal authority to function,” she says. “With other agencies, it’s similar, like, yes, we’re relaxing some of these tax rates, but it’s not like we’re trying to keep the IRS from doing audits.”

The House voted 231-180 to overturn new regulations introduced by U.S. Secretary of Education Betsy DeVos that critics argue limit student loan forgiveness when a college closes due to fraud. The Obama-era rules, known as borrower defense to repayment, allow students to have their federal student loans forgiven if a school employed illegal or deceptive practices to encourage the students to borrow debt to attend the school. Without these rules, students are potentially on the hook to repay federal student loans even if they didn’t find gainful employment or finish their degree before their school closed...Attorneys general from 19 states, plus the District of Columbia, sued DeVos and the Education Department for delaying the borrower protection rule that was scheduled to take effect beginning July 1. A federal judge previously ordered DeVos to comply with the borrower defense rule. However, rather than comply with the judge’s order, the Education Department instead did the following, according to the Project on Predatory Student Lending at Harvard Law School: “The Department demanded incorrect loan payment from 16,034 students. Of those students, 3,289 student borrowers made one or more loan payments because of these demands, which they were not actually supposed to pay..."

An article by Noah Feldman:  White House counsel Pat Cipollone will reportedly lead the team that represents President Donald Trump in the Senate impeachment trial.

California was the first state to challenge tech companies such as Uber and Lyft with bold laws meant to reshape the gig economy by converting workers into employees. And now a handful of other states are following its lead. Legislators in three other states with Democratic majorities, New York, New Jersey and Illinois, are considering similar bills that could open the door for a wide range of freelance workers. The bills would benefit not just app gig workers but janitors, construction workers, truckers and educational workers...“It’s a moment in our politics, where people are understanding, especially in progressive states, these tensions between big corporations and corporate money and ordinary people,” Terri Gerstein, the director of the State and Local Enforcement Project at Harvard Law School. “These work issues and issues of economic inequality have come to such a fever pitch.”

With an oath of impartiality, Chief Justice John G. Roberts Jr. on Thursday became only the third American sworn to preside over a presidential impeachment trial. How he fulfills that pledge will have obvious consequences for President Trump. But it also will shape the public image of the nation’s 17th chief justice, and it holds ramifications for the Supreme Court and federal judiciary he leads. He portrays both as places where partisan politics have no purchase. “And now he crosses First Street, where it’s all about partisan politics,” said Harvard law professor Richard Lazarus, referring to the roadway in Washington that separates the Supreme Court from Congress. There are obvious risks for Roberts, but Lazarus said he doesn’t believe the chief justice will be particularly “risk-averse.” “I don’t think he’s going to look like a potted plant,” said Lazarus, who has known Roberts since law school and has taught summer courses with him after he became chief justice. “He’s not going to erode the stature of the chief justice and the Supreme Court in the process by looking like an insignificant person.”

When we live in an age of information, what information do we choose to absorb? And once we have absorbed information, which factors influence how we process it? Cass Sunstein ’78, the Robert Walmsley University Professor at Harvard, examines those questions in a study published this week in the scientific journal Nature Human Behaviour. The paper, “How people decide what they want to know,” was co-authored by Tali Sharot, a professor of cognitive neuroscience in the department of Experimental Psychology at University College London. ... Sunstein discussed his research with Harvard Law Today in an email interview that took place this week as he was en route to London.

As the 2020 federal election draws closer, the issue of online political advertising is becoming more important, and the differences in how the platforms are approaching it more obvious. Twitter has chosen to ban political advertising, but questions remain about how it plans to define that term, and whether banning ads will do more harm than good. Meanwhile, Facebook has gone in the opposite direction, saying it will not even fact-check political ads. So whose strategy is the best, Twitter’s or Facebook’s? To answer this and other questions, we convened a virtual panel of experts...Harvard Law student and Berkman Klein affiliate Evelyn Douek, however, said in her view neither company is 100 percent right. “The best path is somewhere in the grey area in between,” she said. “It’s not obvious that a ban improves the quality of democratic debate. Facebook’s position, on the other hand, seems to rest on a notion of free expression that is nice in theory, but just doesn’t match reality.”

Bernie Sanders is a fierce critic of the Supreme Court’s Citizens United ruling, which removed most limits on corporate and union spending on politics. The “disastrous” decision, he repeatedly warns voters, is transforming America from a democracy to an “oligarchy” where billionaires can “buy elections"...After reviewing dozens of studies analyzing the impact of contributions on lawmakers’ voting records, the researchers settled on what seemed like a pretty clear answer: Donations don’t buy you much...Lawrence Lessig disagrees. Vehemently. A Harvard law professor who ran for president in 2016 on an anti-corruption platform, he says you can’t learn much by analyzing the effect of lobbyists’ donations on representatives’ final votes on legislation. “There are 10,000 places between the idea and the final vote where influence can be exercised — and that’s indeed what we see," he says. "The lobbyists don’t stand on the floor of Congress and say, ‘don’t vote for this’ or ‘do vote for that.’ They go to a committee and say, ‘Look, we don’t want this bill to come up. And if this bill comes up, we want it to be amended in the following way.’”

If you hold a stock market index fund, congratulations. The S+P 500’s total return was a thumping 31.5% in 2019, and a fund that passively tracks that benchmark delivered almost all those gains, minus a tiny fee—perhaps just 0.04% of assets. Now here’s something you probably weren’t thinking about when you clicked on the box to choose an index fund in your 401(k) or IRA: You were also part of one of the biggest shifts in corporate power in a generation...Lucian Bebchuk, a Harvard law professor, says index fund managers don’t have incentives to invest the time into actively supervising companies. That’s because any effort to increase the value of a company would also increase the value of the index, which in turn benefits every fund that tracks the index. As a result, the fund that pushes management can’t stand out from its peers and attract more money—yet it incurs higher stewardship costs. The concern is that such deference will “result in insufficient checks on corporate managers,” Bebchuk says.

An article by Laurence Tribe: The United States is living through a remarkably convulsive period in its history. Donald Trump has reshaped the American presidency, and his norm-shattering behavior has tested the US Constitution in profound ways. He has placed stress on points of constitutional vulnerability, particularly when it comes to judicially unenforceable norms of respect for fact-based reality, for orderly decision-making, and for investigatory and prosecutorial independence. Trump’s rise to power has also raised questions about some of the Constitution’s most solidly entrenched provisions. His victory in 2016 highlighted the dangers posed by the Electoral College in the face of changing demographic realities, and now his presidency is testing the viability of the impeachment process to cope with a demagogue who has captured the machinery of an entire political party and controls one chamber of Congress.

A new law in California seeks to rewrite the rules of work and what it means to be an employee. Known informally as the gig-economy bill, or AB5, the legislation went into effect on Jan. 1, seeking to compel all companies ― but notably those like Lyft and Uber ― to treat more of their workforce like employees. The law represents a cataclysmic shift for workers who depend on apps to get gigs, and it has inspired similar efforts in New York, New Jersey and Illinois. Heavyweight presidential candidates like Elizabeth Warren and Bernie Sanders have championed the measure...A coalition of tech companies have pledged a reported $110 million for a new measure on the November ballot to exempt app-based drivers. Lyft and Uber, which together have more than 500,000 drivers in California, say they believe the law does not apply to their drivers, while simultaneously pursuing other avenues to exempt themselves from its provisions... “We are in this place because we have these really big companies that will put tens of millions up for the right to deny basic protections for workers,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School.

Three or four? It’s a question being hotly debated as House Speaker Nancy Pelosi (D-Calif.) prepares to transmit the articles of impeachment against President Trump to the Senate for trial. Will it take four Republican senators to buck Majority Leader Mitch McConnell (R-Ky.) and force the Senate to consider additional testimony and documents? Or could the votes of just three Republicans — bolstered by Chief Justice John G. Roberts Jr. — do the trick? The answer to the question hinges on the role of the chief justice, who the Constitution specifies shall “preside” over the trial...In any other setting besides the trial of the president, a 50-50 Senate tie would be broken by the vice president, who under Senate rules occupies the position of “presiding officer” in an impeachment trial. But the chief justice fills that role in the case of a presidential impeachment, which raises questions about whether he should behave any differently. Many have argued that the chief justice will play a strictly honorary role at the trial, with no substantive input whatsoever...Harvard Law School professor Laurence Tribe told me he “agree[s] strongly that the role is not solely honorific or purely decorative.”

Soon after a US drone strike killed Iranian Maj. Gen. Qassem Soleimani in Iraq earlier this month, President Donald Trump’s re-election campaign began touting the “swift actions of our Commander-in-Chief” in paid Facebook ads that cast the killing in a positive light. When it comes to posts that appear to support the dead general, however, it’s a different story: The company is employing some questionable legal reasoning about US sanctions law to justify deleting such content from its subsidiary, Instagram... “Facebook appears to be equating political or legal opposition to the Trump administration’s killing of Soleimani with indirect support for Soleimani himself and thus analogizing it to properly forbidden material assistance to non-state terrorist groups,” Harvard Law School professor Laurence Tribe wrote in an email. “Any such equation wades deep into clearly forbidden speech-suppressing territory, well beyond what even the majority in Holder v. Humanitarian Law Project authorized as consistent with the First Amendment.”

One can only imagine what evidence we have yet to see during the impeachment proceedings against President Trump. With each new tranche of evidence — including emails regarding the hold on military aid to Ukraine and now documents from Lev Parnas, an associate of Trump lawyer Rudolph W. Giuliani’s — the conclusion that Trump abused power and obstructed the investigation becomes incontrovertible. The Post reports: “Three House committees sent dozens of pages of new evidence to the House Judiciary Committee ahead of Wednesday’s transmission of the articles of impeachment, ramping up pressure on Trump to provide Congress with additional documents related to his efforts to get Ukraine to announce an investigation into the Bidens"...Constitutional scholar Laurence Tribe tells me the new evidence is " jaw-dropping" and “highly incriminating of both Giuliani and Trump.” Tribe says, “It’s bound to find its way into the Senate trial after Parnas is deposed by the House Judiciary and Intelligence committees, as he’s bound to be.” Tribe continues, “The Giuliani letter presenting himself to Zelensky as representing Donald Trump in his private capacity at a time when Zelensky was the president-elect of Ukraine is remarkable in itself. It is a kind of hologram of the whole Ukraine-gate scandal.”

Sen. Elizabeth Warren, D-Mass., has pledged to cancel up to $50,000 of debt for 95% of student loan borrowers if she is elected president. Sen. Bernie Sanders, D-Vt., has proposed an even more generous plan if he's elected. Both are bold, controversial pitches that would have a hard time making it through a divided Congress. But on Tuesday, Warren announced she would use a little-known shortcut, and wouldn't need Congress. As president, she says, she could cancel the debts of tens of millions of student borrowers all on her own. It turns out, she's probably right...43 million student borrowers owe the U.S. government $1.5 trillion, according to the U.S. Department of Education. And until now, the department has only offered student loan forgiveness or cancellation to borrowers who meet certain criteria. "Maybe it's because they've been working in a public service position or because they become disabled or because they're saying that their school fundamentally cheated them," says Eileen Connor, legal director of the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School. "Those pathways exist. And I think what Sen. Warren's proposal is pointing out is that there's also this freestanding power that the secretary of education has to cancel debts, not for those reasons, but really for any reason at all."