Media Mentions

The OECD Secretariat’s proposed “unified approach to pillar one,” designed to encourage agreement among countries on how to rewrite the international tax and transfer pricing system to better account for digital business models, was the focus of the sixth annual Tax Sunday event, held October 20 in Washington, D.C. The meeting, co-sponsored by the International Monetary Fund and the World Bank Group, featured presentations and discussion by leading tax experts from OECD, government organizations, civil society, business, and academia. ... Professor Stephen E. Shay, Senior Lecturer, Harvard Law School, said it is a “fantasy” to believe the tax rewrite “is a 2020 process.” Shay said the OECD’s pillar one unified approach is devoid of details except that it does not apply to extractive industries. Thus, it is not possible to talk about any policy implications. The process should be slowed down so that policymakers can “get it right” for developing countries, Professor Shay said. He also said that each country should determine its own threshold for physical presence and should give away taxing rights only by tax treaty. Further, he noted that although extractive industries are excepted from the rules, these industries can also make use of tax havens.

Reed Hundt, the former chairman of the United States Federal Communications Commission and current chairman of Making Every Vote Count, jokes that he has a unique boast. He went to high school and law school with the only two people alive today who won the popular vote for U.S. president, but didn't end up getting the job: Al Gore and Hillary Clinton. The reason? The Electoral College, the idiosyncratic presidential election process enshrined in Article II, Section 1 of the U.S. Constitution.  Hundt was one of the more than 20 speakers at “The Electoral College: Open Questions, Paths Forward” conference at Harvard Law School (HLS) this Saturday, organized by professor Lawrence Lessig and the Harvard Law & Policy Review. Lessig, founder of Equal Citizens and Equal Votes, was a candidate for the Democratic party’s nominee for President in 2016, running on a platform of electoral reform. The mismatched popular vote and Electoral College results of that election saw Donald Trump elected as President, despite Hillary Clinton receiving nearly 3 million more votes. Trump’s ascendency has brought the skewed design of the Electoral College under more scrutiny, reignited interest in electoral reform, and added fuel to Lessig’s argument.

Emily Broad Leib wanted to help Mississippi Delta residents through public policy, but what they needed first was a woodchipper.

The White House on Thursday confirmed that next year’s Group of Seven (G-7) summit will be held at the Trump National Doral Golf Club in Miami, Florida. The announcement immediately prompted accusations from legal experts that such a move would be a violation of the U.S. Constitution’s Emoluments Clause. Director of the Office of Management and Budget (OMB) and acting White House Chief of Staff Mick Mulvaney quickly went into damage control mode to defend the decision, saying that President Donald Trump was “not making any profit” by hosting the confab and that his property would accommodate the event “at cost.” ...“Mulvaney’s statement that Trump will not profit personally from this decision is total BS,” Harvard Law Professor Laurence Tribe said in an email to Law&Crime and on Twitter. “This will violate the Domestic Emoluments Clause of Article II for sure. Of course it will also violate the Foreign Emoluments Clause of Article I.”

Max Nisen, Bloomberg Opinion Healthcare Columnist: "The Democrats Are Fighting for Health in 2020" Noah Feldman, Professor at Harvard Law school and a Bloomberg Opinion Columnist: "Forget Giuliani. Trump’s Abuse of Power Is Clear" Justin Fox, Bloomberg Opinion Columnist: "’Peak TV’ Might Also Mean Peak Jobs in TV and Movies" Jonathan Bernstein, Bloomberg Opinion Columnist: "Why Ocasio-Cortez’s Endorsement Matters" Sarah Green Carmicheal, Bloomberg Opinion Editor: "Men and Women Split on Gender Diversity"

President Trump said on Saturday that he would no longer hold next year’s Group of 7 meeting at his luxury golf club near Miami, a swift reversal after two days of intense criticism over awarding his family company a major diplomatic event. ... Lawyers who have served in both Republican and Democratic administrations objected to the selection of the Doral, including several who emphasized that even though Mr. Trump, as president, is exempt from a federal conflict-of-interest statute, his role in the matter was improper. “It stinks,” said Charles Fried, a Harvard law professor who served as solicitor general under President Ronald Reagan. “It is so completely blatant.” Some Republicans in Congress also questioned Mr. Trump’s move.

An op-ed by Noah Feldman: White House Chief of Staff Mick Mulvaney admitted Thursday that President Donald Trump conditioned U.S. aid to Ukraine on a politically motivated investigation into the origins of the allegation that Russia hacked the Democratic National Committee. Then he attempted to reverse himself. Regardless of whether the reversal succeeds, Mulvaney’s initial admission signals what looks to become a new direction for defending the president: Admit there was a quid pro quo with Ukraine, but claim the president has the constitutional authority to do such deals with foreign countries. This is a defense that Democrats in charge of the impeachment inquiry should confront head on — sooner rather than later. It’s not enough simply to state that Trump abused his power when he offered Ukraine aid or a White House visit in return for investigating what Trump wanted investigated. The Democrats are going to have to explain why pressuring a foreign power to investigate political rivals subverts the very nature of republican self-government.

The Supreme Court is set to decide next month whether to review Oracle America Corp. and Google LLC’s nine-year fight over copyright fair use. In the meantime, a mash-up of Dr. Seuss children’s books and “Star Trek” television shows might provide the next big appellate test of the fair use doctrine. ... On the other side, the Electronic Frontier Foundation and others argue that transformative mash-ups deserve fair use protection, and that “Boldly Go” in particular “recasts, recontextualizes, and adds new expression or meaning” to the Dr. Seuss works in ways designed to resonate with “Star Trek” fans. A group of IP scholars featuring Berkeley Law’s Pamela Samuelson, Stanford’s Mark Lemley and Harvard’s Rebecca Tushnet say that a copyright owner must show a likelihood of harm to their traditional, reasonable or likely markets. A mere showing that a copyright owner “maintains a robust licensing program or participates in a seasonal market that the second comer would like to enter” isn’t enough to carry that burden, they argue.

Lawyers for U.S. President Donald Trump and his re-election campaign have threatened in a letter to sue CNN for what they said was the network falsely advertising itself as a news organization, calling on executives to first discuss an “appropriate resolution” to the matter that would include a “substantial” payment to cover damages. The letter, dated Oct. 16 and made public on Friday, is the latest threat by Trump to sue a media organization over what he sees as unfair media coverage since launching his 2016 presidential campaign, although no lawsuits have been filed. ... Rebecca Tushnet, a professor of false advertising law at Harvard Law School, said there was “no merit” to the letter’s legal arguments and that she doubted a lawsuit would ever be filed. The letter was signed by Charles Harder, who has sent similar threats to media organizations on Trump’s behalf.

Jimmy Hoffa is back! No, the legendary labor leader has not risen from the end zone at the old Giants Stadium in East Rutherford, N.J.—or from any of the other sites where his body was rumored to have been deposited after he disappeared on July 30, 1975. But we are witnessing a boomlet of interest in the head of the International Brotherhood of Teamsters in the 1950s and ’60s. There is Martin Scorsese’s “The Irishman,” a dramatization of “I Heard You Paint Houses,” the 2004 nonfiction account that presented mobster Frank Sheeran’s claim that he murdered Hoffa. And now we have “In Hoffa’s Shadow” by Jack Goldsmith. A top Justice Department official in the Bush-Cheney era, now a Harvard law professor, Mr. Goldsmith has produced an unusual hybrid of confessional memoir and investigative history. “In Hoffa’s Shadow” is compulsively readable, deeply affecting and truly groundbreaking in its re-examination of the Hoffa case. The FBI’s lead suspect was always the man who was erroneously described by reporters as Hoffa’s adopted son and who, as it happens, adopted Mr. Goldsmith as his own son.

In “Right to Be Forgotten,” which explores the question of whether people’s past indiscretions should live forever online, playwright Sharyn Rothstein has processed the perks and perils of the digital age. With such contemporary material comes relevance — to the current cultural dialogue — and a responsibility to monitor the news cycle. As the play has gone through workshops, rehearsals and preview performances on the way to its world premiere at Arena Stage, Rothstein has kept a close eye on developments in the technology world...Striving for authenticity, the creative team spoke to authorities on both sides of the debate. Early in the writing process, Rothstein reached out to Jonathan Zittrain, a professor of Internet law at Harvard who helped shape the legal cases presented in “Right to Be Forgotten.”

THE FIRST PERSON President Donald Trump pardoned, in August 2017, was Sheriff Joe Arpaio. He was infamous for being brutal to undocumented immigrants and others in his shameful jails, and cheered on by neo-Nazis. The month before, a federal judge had found Arpaio guilty of criminal contempt, which carried a jail sentence of up to six months, for “flagrant disregard” of a court order. He had refused to stop harassing and arresting Latinos without any basis for suspicion that they had committed a crime. In the 2016 elections, Arpaio lost his race for a seventh term in Maricopa County, Arizona, apparently because the county no longer wanted a sheriff who engaged in what the Justice Department called “unconstitutional policing.” But in the presidential election, Arpaio helped push the county and the state for Trump, who advanced his own anti-immigrant crusade by saying Arpaio was in legal trouble for doing his job—rounding up people who were in America illegally. In When Should Law Forgive?, 300th Anniversary University Professor and former Harvard Law School dean Martha Minow reckons with a list of ways the pardon was wrong: it rewarded a crucial campaign supporter; it signaled to current and former Trump aides that they should refuse to testify against the president—and, if they were convicted, the president would pardon them, too; it went to a man known for his racist ranting and haughty defiance of law; and it reveled in that defiance. As a result, Minow emphasized, that pardon was and “is a direct invitation for disobedience.” Appalling as Arpaio’s contempt was, Trump’s was even worse as an abuse of constitutional authority: “to pardon a law enforcement official who so thoroughly disdained the law is to excuse or honor that attitude of disrespect for law and for the courts.” Minow’s book is full of similarly sharp answers to the hard question of its title.

Trump’s Acting Chief of Staff Mick Mulvaney admits Ukraine aid was withheld over a political investigation Trump wanted. Mulvaney said the White House “absolutely” tied the funding to a DNC probe and told critics to “get over it.” The quid pro quo revelation reportedly has Trump lawyers “stunned” as Trump’s impeachment strategy crumbles and more Ukraine witnesses come forward to testify. [Featuring Jennifer Taub, Bruce W. Nichols Visiting Professor of Law at Harvard Law School]

The House Financial Services Committee scrutinized the boom in stock buybacks on Thursday, with Democrats eyeing more regulation on buybacks to deter perceived abuses while Republicans cautioned against interfering with the ability of companies to deploy capital. The debate comes as the committee considers four bills that would, to varying degrees, limit or ban buybacks or require companies to increase disclosure about their buyback activity...Harvard law professor Jesse Fried said "lax" disclosure rules allow companies to not disclose their buyback actions until after a quarterly period has ended. He called for requiring companies to disclose trades made during a buyback within two days in order to boost transparency, which is similar to a time frame that applies to corporate insiders trading their own companies' stock. "You would curb a lot of these abuses," Fried said, adding that the U.K., Hong Kong and Japan have rules that require such disclosures be made in less time. "Other countries have figured this out, so there is no reason we can't do it," he said.

Three years and more than 4 million documents later, Exxon Mobil Corp. will go to trial next week to face accusations that it misled shareholders about the financial risks it faces from climate change....Hana Vizcarra, a staff attorney with Harvard Law School's Environmental & Energy Law Program, said in an email that the Exxon case is "groundbreaking" because it's the first time a judge will consider company responsibilities to disclose climate-related information. Vizcarranoted that there's a lot of momentum around how corporate boards and investors are improving their definitions and disclosures of climate information. She wonders if the Exxon case might chill those efforts if companies become shy about disclosing their risks. "A narrow decision may be for the best because a far-reaching one risks short-circuiting ongoing efforts to improve climate-risk disclosure," she said. "Hopefully, any decision that results from this case doesn't impede these efforts."

An article by Noah Feldman:  Your boss, the president of the United States, directs you not to help Congress in the impeachment inquiry he considers illegitimate. Then you get a subpoena from the House of Representatives Intelligence Committee ordering you to appear and testify under oath — or face contempt charges if you don’t. Other than call a lawyer, what are you supposed to do next? For growing number of Trump administration officials, this isn’t a hypothetical situation. Since White House counsel Pat Cipollone’s Oct 8 letter refusing Trump administration participation in the House impeachment inquiry, five current or freshly resigned foreign policy officials have chosen to testify before the inquiry despite being told to keep quiet. Meanwhile, some officials under subpoena haven’t yet agreed to testify. And the White House has so far blocked the release of many, but not all, of the documents subpoenaed by the House. It’s possible to depict the subpoenaed officials who have agreed to appear as heroes, choosing service to the republic over personal loyalty to the president. That may even be true of some of them. But the legal reality of their dilemma makes things a little more complicated.

Jack Goldsmith, a former top Justice Department lawyer in the George W. Bush administration, thinks that President Trump deserves to be impeached, but the conservative legal scholar is also critical of how the Democrats are going about the process. President Trump’s actions in the Ukraine scandal appear to be “clearly” impeachable and are “probably the 300th thing Trump has done that’s an impeachable offense,” Goldsmith told Yahoo News in an interview on the “Long Game” podcast. But he also lamented the impact of a few Democratic mistakes, such as House Intelligence Committee Chairman Adam Schiff’s misleading answers on whether he or his staff had been in touch with the whistleblower whose complaint sparked the impeachment inquiry. “In the general scheme of things, what Schiff did doesn’t even compare to what the president did,” Goldsmith said. But, he said, it nonetheless “was deeply unfortunate.” “It’s significant because 40-some-odd percent of this country believes that the Democrats and the deep state have been violating norms and skirting norms to try to reverse the election [of 2016],” Goldsmith said. “I don’t think that’s the proper characterization, but when the president’s opponents cut corners, don’t tell the truth, seem like they’re in league with bureaucrats to try to bring down the president, it just fosters that narrative and I think it’s a very destructive narrative.”

Leah Plunkett ’06 shares some tips from her new book, ‘Sharenthood’.

President Trump has been on quite a losing streak in court, especially. Last Friday, he lost a total of five cases concerning his snatching funds from the Pentagon to pay for his border wall, Congress’s power to subpoena documents from the accounting firm Mazars USA, and his attempt to expand the definition of public charge, which would have denied green cards to those who used government benefits to which they were legally entitled. His losing streak continued on Tuesday. The Post reports: “A federal appeals court on Tuesday revived a lawsuit claiming that President Trump is illegally profiting from foreign and state government visitors at his hotel in downtown Washington. The U.S. Court of Appeals for the 4th Circuit agreed to rehear the lawsuit, brought by the attorneys general of Maryland and the District, which was dismissed over the summer by a three-judge panel of the court.” The case will be heard on Dec. 12 and breathes life into one of three ongoing suits against Trump for receipt of foreign emoluments...Constitutional scholar Laurence H. Tribe (who is counsel in a different emoluments case) tells me, “I was convinced the panel’s decision denying standing to Maryland and D.C. in the Emoluments Clause challenge was legally wrong and am pleased to see the full Fourth Circuit seems inclined to agree, bringing it in line with the Second Circuit.” Tribe noted Trump’s run of court losses. “With the stonewall the president had interposed to the impeachment inquiry crumbling as Fiona Hill and others testify despite Trump’s effort to silence them, it’s hard not to sense the tide turning rapidly and decisively.”

An article by Ben Saul:  Human rights and counterterrorism have been dramatically politicized and undermined at the United Nations over the past 18 months. In a spate of recent resolutions, the 47-member Human Rights Council (HRC) in Geneva and the General Assembly in New York have both retreated markedly from many of the hard-won normative gains in their earlier resolutions after 9/11, following concerted lobbying by the likes of Egypt, Algeria and Saudi Arabia—regimes not known for respecting rights in counterterrorism. The rot started in the HRC in 2017 and then spread to the General Assembly in 2018 and was repeated in the HRC in September 2019. The issues will erupt again at the General Assembly at its 74th session, with a new resolution expected in December 2019.

An article by Jacques Singer-Emery JD '20 and Jack Goldsmith:  One of the most damning allegations in the whistleblower complaint is that President Trump pressured Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden and his son by withholding congressionally approved military aid.  The amounts include $250 million from the Defense Department and $141 million from the State Department. As debates swirl over the existence and significance of a presidential quid pro quo, it is worth examining the underlying mechanics of how the White House might have withheld the money. The answer lies in the Office of Management and Budget (OMB), which is responsible for overseeing all executive agency spending. That is why on Oct. 7 the chairmen of three House Committees—Oversight and Reform, Intelligence and Foreign Affairs—sent letters to subpoena documents from the acting director of OMB, Russell Vought, in addition to Secretary of Defense Mark Esper. The subpoena to Vought ordered him to produce “all documents and communications in your custody, possession, or control referring or relating to” various matters linked to the withholding or deferral of congressionally appropriated funds to Ukraine. The deadline to respond to the subpoena was Oct. 15, yesterday, and Vought made clear that he would not comply.