Media Mentions

An op-ed by Cass Sunstein: For all the rhetoric and theatrics, the first day of public impeachment hearings in the House of Representatives on Wednesday produced a surprising amount of light. Let’s put partisanship to one side and try to find that light, isolating the relevant issues of law and fact, and bracketing the question of whether Donald Trump is a terrific president or a terrible one. Everyone agrees that if Trump withheld U.S. military aid from Ukraine in order to encourage it to combat corruption in general, there would be no problem. At the same time, almost everyone seems to agree that Trump should be held to account if (1) he withheld the funds from Ukraine in order to get it to mount a baseless criminal investigation of a political rival, Joe Biden, or Biden’s son, Hunter, and (2) Ukraine did in fact launch that investigation.

Robert De Niro says he welcomes disagreement about whether The Irishman is accurate, but wasn’t “conned” into believing the firsthand accounts of Frank “The Irishman” Sheeran, the mob enforcer he plays in the film. ... But his account has been disputed by some Hoffa insiders. Harvard Law School professor Jack L. Goldsmith, the stepson of Charles “Chuckie” O’Brien (played by Jesse Plemons in The Irishman) told Vanity Fair that “there’s absolutely no basis for Sheeran’s claim and a lot of reasons to think it’s preposterous.” His new book, In Hoffa’s Shadow, offers a different account of the Jimmy Hoffa story than you’ll get from I Heard You Paint Houses or The Irishman.

The U.S. Department of Education agreed to hand over department records late Thursday to Rep. Bobby Scott, D-Va., the Democratic chairman of the U.S. House education committee, just hours before Scott was set to subpoena Education Secretary Betsy DeVos for the records. The information relates to the Education Department's unwillingness to fully forgive the federal student loans of borrowers who say they were defrauded by for-profit colleges, including the now-defunct Corinthian Colleges. ... "Our clients aren't asking the government for a handout or a bailout. They're asking the government to follow the existing law," says Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School. The group filed the lawsuit that includes Davis.

When New York’s climate change lawsuit against Exxon Mobil Corp. went on trial last month in a Manhattan courtroom, the energy giant’s lead lawyer took great pains to emphasize that the state’s allegations weren’t really about climate change. ... Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, said nuisance lawsuits are difficult to make because plaintiffs must “draw the line” from a company’s actions to the damage done. The continued fight over state jurisdiction will be crucial, she said. “If they survive the fights over venue, there will be a continued appetite to bring these cases,” Vizcarra said.

The American justice system’s approach to crime seems to be: Lock up as many people as possible. This is one of many reasons why we’re the most incarcerated country in the world. Punishment has a role in any criminal justice process, but what if it was balanced with a desire to forgive? What if, instead of locking up as many people as possible, we prioritized letting go of grievances in order to create a better future for victims and perpetrators? ... A new book by Harvard law professor Martha Minow, titled When Should Law Forgive?, explores how the restorative justice philosophy might be scaled up and applied to the broader criminal justice system. Minow was dean of Harvard Law from 2009 to 2017 and is known for her work on constitutional law and human rights, especially the rights of racial and religious minorities... I spoke to Minow about what that change might look like, whether it’s compatible with the American philosophy of justice, and why some people have reservations about abandoning the status quo.

Legal experts are noticing that President Donald Trump wasn’t asking for a real investigation of Joe Biden, only one that could provide fodder for the news media. Witnesses in the impeachment inquiry have testified that Trump wanted Ukrainian president to announce an investigation into Joe Biden and his son Hunter in an interview with CNN, in exchange for congressionally approved military aid or a White House visit. “Trump demanding a Zelensky announce an investigation of Biden, ‘in front of a microphone” gives the game away,'” tweeted Jennifer Taub, a professor at Vermont Law School [and visiting professor at Harvard Law School]. “If the real goal was to investigate corruption, a CNN announcement would be the wrong approach. Genuine investigations are kept secret.”

Harvard constitutional law professor Laurence Tribe on Thursday dumped on Donald Trump’s political allies and defenders as he dissected the latest developments in the impeachment inquiry into the president. “I think it’s about time that people pay more attention to the Constitution and to the purposes of our democracy than to the trivial business of getting reelected,” Tribe told MSNBC’s Chris Matthews during a discussion on Trump’s pressuring of Ukraine President Volodymyr Zelensky to investigate his potential 2020 Democratic rival Joe Biden allegedly in exchange for withheld military aid. “If your office is so important to you that you’re going to violate your oath and vote for someone who violates his oath every day and who uses the office of the presidency to enrich himself and to enhance his power, then I really think you are a pathetic excuse for a human being,” Tribe added.

President Donald Trump is taking the fight to keep his financial records secret from congressional investigators to the Supreme Court. However, there is no guarantee it will pick up the case and it could take months before any decisions are made, legal scholars say. On Wednesday, the U.S. Court of Appeals for the D.C. Circuit knocked back Trump's appeal against the court's earlier decision that his accountants Mazars must release several years of his financial records, including tax returns, to honor a subpoena by the House Oversight Committee. A majority of the judges voted in favor of upholding the previous ruling. But three judges dissented against that majority decision. The president's personal lawyer, Jay Sekulow, said he would now take the case up to the Supreme Court and petition for it to be heard there. "Sekulow and Trump's other private lawyers will have 90 days in which to file a petition for cert," Larry Tribe, professor of constitutional law at Harvard, told Newsweek. "The Supreme Court typically takes several months to decide whether to grant or deny cert. In this case, I see very little reason to imagine the Court would want to grant a hearing, despite the dissents. But the exact timing and precise odds are anybody's guess."

An article by Jonathan Zittrain: Facebook has been weathering a series of disapproving news cycles after clarifying that its disinformation policies exempt political ads from review for truthfulness. There are now reports that the company is considering reducing the targeting options available to political advertisers. No matter how Facebook and its counterparts tweak their policies, whatever these companies do will prompt broad anxiety and disapprobation among experts and their own users. That’s because there are two fundamental problems underlying the debate. First, we the public don’t agree on what we want. And second, we don’t trust anyone to give it to us.

Former independent counsel Ken Starr on Wednesday morning suggested that the constitutional mechanism of impeachment was outdated, saying that Congress should instead censure presidents that abuse the power of their office...Legal scholars would likely take issue with Starr’s interpretation of “bribery” in the U.S. Constitution as having roughly the same definition as “bribery” under modern criminal law. According to former DOJ attorney and Harvard Law School lecturer Ben Berwick, it is generally accepted that America’s Founding Fathers had a far broader conception of bribery in mind when they penned the Constitution.

Famed Teamster Union President Jimmy Hoffa, who had known ties to organized crime, vanished in 1975 and was later presumed dead, but the details of how and when he died remain a mystery. While no one was ever ultimately charged, the FBI did have a few suspects — most notably Hoffa's closest confidant, Charles "Chuckie" O'Brien. Now, O'Brien’s stepson, Jack Goldsmith, argues the intelligence agency had it all wrong in his new book, "In Hoffa's Shadow: A Stepfather, a Disappearance in Detroit, and My Search for the Truth." Goldsmith is also a Harvard law professor, former top lawyer at the Office of Legal Counsel and a former assistant attorney general in the George W. Bush Administration. Jim Braude was joined by Jack Goldsmith.

TIME named Toby Merrill, founder and Director of the Project on Predatory Student Lending, to the first-ever TIME 100 Next, a new expansion of the TIME 100 list of the most influential people in the world. The list highlights 100 rising stars who are shaping the future of business, entertainment, sports, politics, health, science and activism, and more. Others on the TIME 100 Next list include Pete Buttigieg, Kyrsten Sinema, Aly Raisman and more.

Harvard Law School today announced plans to eliminate the HLS application fee and reduce other application costs for college juniors applying through the School’s Junior Deferral Program (JDP). The changes will save each applicant more than $300. “Harvard Law School is looking to attract and admit talented applicants, regardless of their financial means,” said Kristi Jobson ’12, Assistant Dean for Admissions and Chief Admissions Officer.  “We hope and expect that eliminating the application fee and other costs for this group of applicants to our J.D. program will encourage more college juniors, particularly those for whom these costs are more burdensome, to apply to Harvard Law School.” The Junior Deferral Program enables college students to apply to HLS during the spring of their junior year and receive an offer of admission prior to the start of senior fall, if they agree to defer admission for at least two years after college graduation. The program was created to encourage students to gain practical work experience before beginning law school. Students admitted to the program enter the senior year job search with the law school admissions process behind them, and thus may feel more free to explore a full range of opportunities.

When New York’s climate change lawsuit against Exxon Mobil went on trial last month in a Manhattan courtroom, the energy giant’s lead lawyer took great pains to emphasize that the state’s allegations weren’t really about climate change. After all, Theodore Wells said, Exxon was accused of hatching a cynical, arguably pedestrian scheme to mislead investors. The alleged securities fraud may have been intended to mask the impact global warming will have on Exxon’s finances, but it wasn’t a grand reckoning of its responsibility for the man-made phenomenon. The reason, of course, was that New York couldn’t find enough evidence to back up its initial contention that Exxon hid its knowledge of global warming...Hana Vizcarra, a staff attorney at Harvard Law School Environmental and Energy Law Program, said nuisance lawsuits are difficult to make because plaintiffs must “draw the line” from a company’s actions to the damage done. The continued fight over state jurisdiction will be crucial, she said. “If they survive the fights over venue, there will be a continued appetite to bring these cases,” Vizcarra said.

When a bipartisan bunch of state attorneys general announced this summer they had cut a deal with phone companies to crack down on infuriating robocalls, Democratic Attorney General Josh Stein of North Carolina led the news conference in Washington...Stein, 53, has inserted himself into nearly every high-profile action that state attorneys general have taken since he started the job in North Carolina in 2017. He is emblematic of a new kind of state attorney general more aggressive, often bipartisan rising to prominence nationwide. What used to be a relatively high-profile position within a state's boundaries has become a springboard for publicity across the country. As politics on the national level becomes more polarized, and with Congress stymied by attention on a presidential impeachment investigation, attention has increasingly turned to the states, where legislatures are primed to act, governors have some real power and attorneys general are stepping up, particularly on consumer issues where the federal government has largely stepped away...Former Maine Attorney General James Tierney, a Democrat who now teaches at Harvard Law School, said fraud "doesn't have a partisan hat" when attorneys general are going after bad actors. But, he said, Stein and other AGs are "not going to get elected or reelected based on what they do on robocalls." They may work across party lines on corporate fraud or consumer protections, but when it comes to election time they usually revert to party positions, he said.

Toast Inc. achieved a $2.7 billion valuation this year by making software used by tens of thousands of restaurants. Now, data the Boston company has collected about those restaurants could yield new revenue. The company is launching a program called Toast Capital that will allow select clients to borrow as much as $250,000 for kitchen equipment, renovations or other expenses. In an example of how information can become currency in the digital age, Toast plans to earn interest on the loans without putting up its own money. Instead, a business partner -- Utah-based WebBank -- will provide the financing. The contribution from Toast, whose software powers sales and payroll transactions, will be insight into the famously tough restaurant industry — insight that may help predict which prospective borrowers would succeed enough to pay back their loans and which would default...Mary Zeven, director of the graduate program in banking and financial law at Boston University School of Law, said "partnering with a Utah bank, where Utah has loose restrictions on usury, will allow higher interest rates than a Massachusetts bank." Howell Jackson, a Harvard Law School professor who specializes in financial regulation and consumer protection, added that it is "common practice" for companies running lending programs to partner with Utah banks for this reason.

In late October, three major U.S. government agencies as well as trade associations for the food manufacturing, grocery and restaurant industries announced their new partnership with the Food Waste Reduction Alliance. Their goal? To cut food waste in half by 2030. Partners in the coalition include: the Food and Drug Administration (FDA), the Department of Agriculture (DOA), the Environmental Protection Agency (EPA) and the founders of the Food Waste Reduction Alliance—the Grocery Manufacturers Association, the Food Marketing Institute and the National Restaurant Association...One cause of American food waste, Meyer notes, may be the widespread misunderstanding generated by a bewildering array of non-standardized expiration date labels. A report by the Natural Resources Defense Council and the Harvard Law School Food Law and Policy Clinic suggested that more than 90 percent of Americans may be prematurely discarding food because they misunderstand the "best by" dates as an indication of food safety.

Figuring out Law School is grueling. Being deafblind doesn’t make it easier…

In a last-minute move, Democrats are shifting their impeachment rhetoric and talking points just days before the first public hearings into President Trump’s handling of foreign policy in Ukraine. The televised hearings mark a crucial phase in an investigation conducted thus far behind closed doors, as Democrats seek to swing public opinion — and by extension, that of Republicans — behind the central inference of their impeachment inquiry: that Trump broke the law and should be removed from office...Laurence Tribe, professor of constitutional law at Harvard University, suggested the Democrats’ references to a quid pro quo were a tactical mistake for a party hoping to sway public sentiment. And he welcomed the shift to more clearly defined terms. “It’s easier for the public to understand English-language concepts like ‘bribery’ and ‘extortion’ than it is for most people to plumb the meaning of the Latin phrase ‘quid pro quo,’ ” Tribe said Monday in an email, “and public comprehension is essential to the proper use of the impeachment power.” Tribe, a frequent Trump critic, rattled off a host of additional reasons he thinks the more explicit terms will prove more effective for Democrats taking their impeachment case public.

An article by Noah Feldman: It is plainly immoral to deport Dreamers, people raised in the U.S. as undocumented aliens. President Donald Trump seems to understand that — which is why, when he officially rescinded President Barack Obama’s Deferred Action for Childhood Arrivals program, he said he had no choice because the program was illegal. Now the Supreme Court is being asked to rule on whether Trump’s rescission was itself illegal. That puts the court into a bind. Logically, the court should uphold Trump’s power to shut down the program. If Obama as president had the power to create DACA, Trump should have the power to end it. Morally, however, the court shouldn’t take away Dreamers’ right to remain in the U.S. Direct conflict between law and morality is the stuff of great works of literature, not to mention a host of “Law and Order” episodes. But it is much rarer in real life than you might think.

Cass Sunstein, a professor at Harvard Law School and one of the nation's top administrative legal scholars, spoke about the constitutional history of impeachment at a Harvard Coop lecture last Thursday...Sunstein's lecture was primarily focused on providing a historical perspective on the impeachment process. He explained how there was a great deal of debate amongst the Founders regarding how impeachment should be defined in the U.S. Constitution. "Virginia's [Constitutional Convention delegate] George Mason was the most eloquent. He said 'No point is of more importance than that the right of impeachment should be continued... Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?'"...Sunstein did turn to the question of President Trump's impeachability during the Q and A portion of the event. He said that many of the previous concerns over Trump's presidency — that he's unfit for the office, that he's violating the oath of office — don't meet the threshold for impeachable offenses.