Media Mentions

Elaine Chao, who serves as President Donald Trump's transportation secretary and is married to Senate Majority Leader Mitch McConnell, is being investigated by House Democrats over accusations of conflicts of interest involving her family's shipping company. ... Laurence Tribe, a professor of constitutional law at Harvard Law School, called Chao's potential conflicts of interest "extremely serious." ... "Secretary Elaine Chao’s potential conflicts of interest that the House Democrats’ letter targets are extremely serious, especially given Chao’s proximity to the center of Republican legislative power and Senate confirmation power in her husband, Majority Leader Mitch McConnell," Tribe told Salon by email.

... But history can move in unexpected ways. Last month, 181 American chief executives issued a collective “statement on the purpose of a corporation” that abandoned their long adherence to shareholder primacy. Instead, the group – which was organised by the Business Roundtable under the leadership of Jamie Dimon, head of JPMorgan – pledged “a fundamental commitment to all our stakeholders”. ... In universities, economists such as Eugene Fama declared that free markets were the only valid engine of growth and value, while law professors such as Lucian Bebchuk insisted corporate boards had no right to ever overrule investors, however short-term their focus. ... Shareholder rights are essential for keeping managers and directors accountable,” insists Bebchuk, who often exchanged bitter words with Lipton.

Purdue Pharma, the company that made billions selling the prescription painkiller OxyContin, filed for bankruptcy days after reaching a tentative settlement with many of the state and local governments suing it over the toll of opioids. The filing late Sunday night in White Plains, New York, was anticipated before and after the tentative deal, which could be worth up to $12 billion over time, was announced last week. ... The bankruptcy means Purdue will likely be removed from the first federal opioid trial, scheduled to start in Cleveland on Oct. 21. According to Harvard Law Professor Mark Roe, an expert on corporate bankruptcy, anyone who wants money from Purdue will now have to go through the bankruptcy court.

An article by Noah Feldman: Tuesday, Britain’s Supreme Court will start a pivotal hearing related to Brexit. What it decides could tell us just how aggressive judicial review has gotten, and how far it’s spread from its foundations in the U.S.. Over the last 50 years, the American practice of judicial review has made its way around the world. It has become increasingly common for judges in constitutional systems to see themselves as the final decision-makers on constitutional legitimacy.

An article by Cass Susntein: What is the role of chance in human life? If a book tops the bestseller list, if a new product takes over the market, or if people suddenly want to stem immigration, might it all be some kind of accident? Over a decade ago, a celebrated paper by sociologists Matthew Salganik, Peter Dodds and Duncan Watts tried to answer such questions. They asked: When a song turns out to be a spectacular success, is it because it’s really great, or is it just because the right number of people, at an early stage, were seen to like it?

In her new memoir, “Education of an Idealist,” the Pulitzer Prize-winning academic and diplomat Samantha Power describes the “immense warmth” of Joe Biden, whom she worked with during the Obama administration. Power, who served as Obama’s ambassador to the United Nations, didn’t agree with Biden on every issue but had a good relationship with the then-vice president. “He was blunt and demonstrative. He could go on too long. But he seemed to see the value of each person he met, irrespective of their status,” she wrote. In a new interview, Yahoo Finance Editor-in-Chief Andy Serwer asked Power whether she’s supporting Biden’s presidential bid. Widely considered the front-runner in the race for the Democratic nomination, Biden had the highest favorability rating among Democrats, according to a new NPR/PBS NewsHour/Marist poll. “I'm not in the endorsement business. But I have great affection for Vice President Biden,” said Power, who’s currently a professor at the Harvard Kennedy School.

In the first hour of Donald Trump’s presidency, the newly appointed administration wiped Barack Obama’s administration’s climate and energy pages from the White House website, replacing them with the America First Energy Plan, which mostly focused on “clean coal”. A few weeks later, the EPA’s website was stripped of any mention of climate change at all. ... Caitlin McCoy, a climate, clean air, and energy fellow at the Harvard Law School Environmental and Energy Law Program who keeps track of the Trump administration rollbacks, says these lawsuits are kind of the point. “The Trump administration is trying to transform our fundamental environmental laws like the Clean Air Act and Clean Water Act by proposing new interpretations of the laws, through these new regulations, that dramatically limit EPA’s authority, and the authority of states in some cases as well,” she told The Independent.

An op-ed by Charles Fried: In 1865, in Ex parte Garland, the Supreme Court ruled that the president’s pardon power, granted in Article II, Section 2 of the Constitution, was absolute: Once exercised it could not be reversed, and therefore, because of his presidential pardon, former Confederate Senator Augustus Garland was beyond the reach of punishment or disqualifications for his past crimes. In that case, President Andrew Johnson, against the evident wishes of the Republican Reconstruction Congress, had pardoned Garland, one of many former Confederate politicians. It is a logical entailment of that ruling that the pardon power cannot be subject to prior legal constraints or limits on its valid exercise. Thus, though President Trump has blatantly ignored the procedures established to examine the propriety and circumstances of its exercise (there is in the Justice Department a pardon attorney who, with a staff, documents the relevant grounds for granting a pardon and makes recommendations based on past practice regarding its exercise), his pardon, once granted, as in the case of Sheriff Joseph Arpaio, cannot be undone.

An op-ed by Sharon Block and Benjamin Sachs: The struggle for gig workers’ rights took a big step forward this week when the California legislature passed a law classifying many such workers—including Uber and Lyft drivers—as “employees.” Once it is signed by Gov. Gavin Newsom (D), the law will grant workers in California critical protections such as minimum wage, overtime pay, workers’ compensation and unemployment insurance — all of which they currently lack. Uber has vowed to fight application of the law to its drivers through litigation or repeal by referendum. It’s a significant victory for the gig workers, and California’s move could lead other states to act, but there’s a problem. It’s that the new law fails to offer gig workers one of the most important employment rights of all: the right to form a union. As important as minimum wage and overtime pay are, they are minimum protections that fall far short of ensuring that workers earn what they need; only a union and a collective bargaining agreement enable workers to demand and secure anything beyond these minimum standards. But even more important, a substantial body of economic research confirms that basic workplace protections are adequately enforced only when there’s a union on the scene.

IIt was a Saturday night in May 2018 in Fox Hill, N.Y., and the Notre Dame political-science professor Patrick Deneen was talking about his garden. The occasion was a conference called “Beyond Liberalism,” organized around Deneen’s unlikely bestseller, Why Liberalism Failed (Yale University Press, 2018). The setting was the mess hall of a “Bruderhof” intentional community, patterned on those established by Christian pacifists in the wake of World War I. ... In the year and a half since the conference, other writers who have staked out public positions on the nonliberal right include the Harvard law professor Adrian Vermeule, the First Things editor R.R. Reno, the former Washington Examiner managing editor Helen Andrews, and the University of Dallas assistant professor of political science — and deputy editor of the journal American Affairs — Gladden Pappin. One might add Mary Ann Glendon, the Harvard law professor and former ambassador to the Vatican, who in July was named the head of President Trump’s Commission on Unalienable Rights. (The commission includes professors from Stanford, the University of South Carolina, the University of California at Irvine, and Notre Dame.)

The Trump administration on Thursday announced the repeal of a major Obama-era clean water regulation that had placed limits on polluting chemicals that could be used near streams, wetlands and other bodies of water. The rollback of the 2015 measure, known as the Waters of the United States rule, adds to a lengthy list of environmental rules that the administration has worked to weaken or undo over the past two and a half years. ...  Under the provisions of the Clean Water Act, legal challenges must be heard in Federal District Court, which is based at the state level, rather than federal appeals court. Richard J. Lazarus, a professor of environmental law at Harvard Law School, said that meant that opponents of the Trump administration would focus their challenges in states they perceived as friendly. “It’s going to be chaos,” Mr. Lazarus said. “We’re going to see suits brought all over the country.”

How should American leaders use their power on the global stage? Former United Nations Ambassador Samantha Power spent her career in journalism and diplomacy contemplating this question. Her new memoir is called “The Education of an Idealist.” We hear from her, and we also speak with Raj Kumar. Kumar has worked on “researching and writing about aid interventions in the developing world,” throughout his life, according to Vox., and is the president of Devex, a media platform for people and organizations working in global development. How much foreign interference is too much? How can more economically powerful countries best assist those that are still developing? And should they? We talk about those questions and more. Guests: Samantha Power, Professor of Practice in Human Rights, Harvard Law School; former U.S. ambassador to the United Nations; author of “The Education of an Idealist”; @SamanthaJPower. Raj Kumar, Founding president and editor-in-chief of Devex; author of “The Business of Changing the World”;

CNN reports on the House Judiciary Committee’s vote on impeachment rules, “Thursday’s vote, which does not need to be approved by the full House, gives Nadler the ability to deem committee hearings as impeachment hearings. It allows staff to question witnesses at those hearings for an hour after members conclude, gives the President’s lawyers the ability to respond in writing to public testimony and allows the committee to collect information in a closed setting.” ...  After a period of quiet, the resolution signals impeachment is very much on the table. Constitutional scholar Laurence Tribe explains, “Today’s resolution marks an important milestone in the all-but-inexorable march toward President Trump’s eventual impeachment for ‘high Crimes’ against the United States — abuses of power that involve not only obstruction of justice and defiance of the rule of law but compromising entanglements with hostile foreign powers and, to put it simply, greedy and corrupt rip-offs of hard-working American taxpayers.” He adds, “Two particularly significant procedural features of the resolution are its provisions for direct participation by the president’s lawyers and by expert legal staff for the committee.”  

Harvard Law professor Laurence Tribe said Donald Trump will have to "face the music" after the U.S. Court of Appeals for the Second Circuit on Friday revived a lawsuit alleging the president is violating the Constitution with his business entanglements. The three-judge panel ruled 2 to 1 to throw out a lower court ruling dismissing the lawsuit, sending the case back for further proceedings. The lawsuit argues that Trump failed to comply with the Constitution's emoluments clause by profiting from domestic and foreign officials who visit his hotels and restaurants. The plaintiffs in the case cite several examples of foreign government officials, like the Embassy of Kuwait, choosing to stay at Trump's properties over other venues while visiting the U.S. "It seems to me that now we're really cooking with gas in terms of holding the president's feet to the fire of the emoluments clause," Tribe told Newsweek on Friday shortly after the court's decision. Tribe is part of the legal team suing the president. The case was originally filed by the watchdog group Citizens for Responsibility and Ethics in Washington (CREW) and other private groups.

An op-ed by Noah Feldman:  It’s not often that hedge funds and the Constitution come up in the same sentence — let alone the same judicial opinion. But the two are very much in play in an important opinion issued by the U.S. Court of Appeals for the Fifth Circuit. In it, the court handed a win to hedge funds that are challenging the 2012 decision by the Federal Housing Finance Agency to make Fannie Mae and Freddie Mac transfer their profits to the U.S. Treasury in perpetuity — a transformation of those previously quasi-private entities known as the net worth sweep.

An op-ed by Noah Feldman:  Donald Trump says that the Supreme Court has given him a big win on asylum. Don’t be so sure. True, by a vote of 7-2, the justices allowed Trump’s new asylum regulation to go into effect — the one that says you can’t apply for asylum at the southern border if you’ve passed through Mexico and haven’t tried and failed to get asylum there.  But reversing the lower courts that blocked the regulation, pending litigation, isn’t the same thing as upholding it as lawful. The court of appeals still has to issue a final ruling on whether the rule violates federal immigration statutes and whether the government was authorized to issue it without first seeking notice and comment from the public. Then, after final rulings from the appellate court, the Supreme Court will surely weigh in — and still might strike it down.

In January, 2016, Donald Trump was seeking the Republican nomination for the presidency. He claimed that his principal rival, Ted Cruz, might be barred from election to the White House due to his having been born in Canada, albeit of American citizens. In support of his view, Trump noted that the renowned Harvard Constitutional law professor, Laurence Tribe had asserted that Cruz might be vulnerable to a legal challenge on this matter, Specifically, Tribe stated that this issue had not yet been legally resolved and was not “settled law.” Trump attempted to enhance Tribe’s credibility by referring to him as “…a constitutional expert, one of the best in the country,”. Last week, these words of ultimate obsequious approbation came back to haunt Trump.

The U.S. Department of Education tightened rules governing loan forgiveness for students whose for-profit colleges went bankrupt before they could finish their degrees. Education Secretary Betsy DeVos criticized the previous policy as overly lenient and akin to the government giving away “free money.” The for-profit colleges also complained. An initial attempt last year to revise the guidelines sparked a legal challenge by the Harvard Law School’s Project on Predatory Student Lending that forced the department temporarily to abide by the original rules.  In the Aug. 30 announcement, DeVos said that fraud in higher education “will not be tolerated.” The department expects to save taxpayers hundreds of millions of dollars by requiring more documentation from borrowers and narrowing the definition of university misconduct that qualifies students for loan forgiveness. Harvard Law School vowed to bring a new legal challenge against the rules, which are projected to take effect in July 2020.

For generations, it was a basic tenet of donating sperm: Clinics could forever protect their clients’ identities. But, increasingly, donor anonymity is dead. The rise of consumer genetic tests—which allow people to connect with relatives they never knew they had, including some who never intended to be found in the first place—is forcing sperm donation clinics to confront the fact that it is now virtually impossible to guarantee anonymity to their clients. Instead, sites like 23andMe and Ancestry.com are giving customers the genetic clues they need to identify biological parents on their own. ... In a 2016 study conducted by I. Glenn Cohen, a professor of bioethics at Harvard Law School, about 29 percent of potential sperm donors said they would refuse donating if their names were put on a registry. The study suggested that prohibiting anonymous sperm donations would lead to a decline in the number of donors and that those who were willing to be identified would likely demand more compensation.

In her new book, Sharenthood, UNH Law Professor Leah A. Plunkett takes on the digital age of parenting and the excessive sharing of children's images and data online. Plunkett urges adults to think before they click, to understand the risks of sharing chldren's digital information and what some protective measures might be.  Guest: Leah A. Plunkett, Professor at the University of New Hampshire Franklin Pierce School of Law and faculty associate at the Berkman Klein Center for Internet and Society at Harvard University.  Her new book is Sharenthood: Why We Should Think Before We Talk About Our Kids Online.

Uber will not treat its California drivers as employees, the ride-hail company’s head lawyer said Wednesday, despite a new law designed to do just that. The law would create a more stringent test to separate independent contractors from full-time employees. The company’s argument rests on a premise that’s been a cornerstone since its early days: that Uber is a technology company, not a transportation one. ... Elsewhere, though, courts have had little patience for this argument. In California, one federal judge called it “fatally flawed,” arguing the company is “no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch taxi cabs.” “It seems very clear that Uber is a transportation company, not a technology company, despite the fact that it uses an impressively powerful piece of technology to offer transportation services,” says Benjamin Sachs, a professor who teaches labor law at Harvard Law School.