Media Mentions

An article by Noah Feldman:  The news that two associates of Rudy Giuliani have been charged with funneling illegal campaign contributions from Ukraine to the United States is inevitably intriguing to Democrats leading an impeachment inquiry against Donald Trump. But it’s important to avoid going down a rabbit hole of Ukraine-Trump connections. That could distract the public from the core issue: That Trump pressured the president of Ukraine to investigate Joe Biden in exchange for releasing military aid.

An article by Cass Sunstein:  The discussion of President Donald Trump’s record on regulation is distressingly tribal. Emphasizing the importance of environmental protection, worker safety and civil rights, his harshest critics see deregulation as a dirty word. Complaining of regulation run riot in the past, his most enthusiastic supporters celebrate the smallest changes as heroic efforts to restore freedom to a nation that lies prostrate and humiliated before all-powerful bureaucrats. But on some occasions, the administration does something that all tribes should be willing to endorse. That was the case last week when Trump issued two executive orders designed to improve the operation of the regulatory state. They aren’t exactly earth-shattering, but in terms of the operations of the U.S. government, they are unquestionably important.

When Bernie Sanders ran for president in 2016, his campaign was strikingly pro-labor...Several candidates have pledged to ban noncompete agreements, which hold down wages for workers, and mandatory-arbitration clauses, which prohibit lawsuits against employers...Larry Cohen, a former president of the Communications Workers of America and a top volunteer adviser to Mr. Sanders in 2016 and now, said that he has been touting the importance of sectoral bargaining to Mr. Sanders in recent years...Mr. Cohen has also been involved in an effort by two faculty members at Harvard Law School, known as the Clean Slate for Worker Power project, to convene dozens of labor experts, activists and organizers to reimagine labor law from the ground up. The group won’t publish its recommendations until January, but in the meantime it has worked to disseminate ideas like sectoral bargaining across the campaigns. Sharon Block and Benjamin Sachs, the Harvard faculty members involved, have weighed in with several campaigns that have embraced this approach, according to aides to Ms. Warren, Mr. Buttigieg, Mr. O’Rourke and Mr. Booker. Ms. Block, a former Obama administration official and congressional staff member who is a veteran of legislative efforts to make unionizing and collective bargaining easier, said experience had taught her that advancing labor interests through provisions like card check doesn’t work: Such measures tend to be too small to matter substantively, and they fail to generate political excitement among those who would benefit. “The folks who don’t want this to happen will fight just as hard whether it’s small or big,” Ms. Block said. “But doing something bigger makes moving legislation easier because you have the potential to have a much bigger constituency behind it.”

The 2016 presidential campaign showcased the worst of Facebook. Remember the headline “Pope Francis shocks world, endorses Donald Trump for president”? That story had nearly 1 million Facebook impressions by Election Day, prompting the pope to call such fake news a “sin” and a “sickness.”...A new Facebook decision, though, could play havoc with the 2020 election. Facebook executive Nick Clegg announced that the company’s 30,000 contracted content moderators are no longer fact-checking political ads, which he said amounted to censorship. Moderators will block “previously debunked content” — but fresh lies will be allowed. As Harvard law professor Cass Sunstein noted, having the company stay out of fact-checking will make it less likely to face claims of political bias for keeping certain allegations off its platform.

Cass Sunstein, Harvard Law School professor and the author of Impeachment: A Citizen's Guide (Penguin Books, 2019), and Henry Greenberg, president of the New York State Bar Association and partner at Greenberg Traurig, LLP, discuss the legal issues surrounding impeachment.

In the history of the earth’s climate two years is a infinitesimal blip, but in the recent history of investor-led efforts to push for action on climate change from corporations, two years has meant a great deal. In 2017, the two biggest U.S.-based fund managers, BlackRockand Vanguard — which control a combined $12 trillion in assets — both voted to require Exxon Mobil to produce a report on climate change. It was a seen as watershed moment showing what can occur when the biggest index funds punch their weight at the annual meetings of corporations, and join other shareholders in supporting proxy proposals covering social issues. Until it wasn’t the watershed everybody thought it was. Since that 2017 vote, multiple analyses of proxy votes have shown BlackRock and Vanguard to have among the worst voting records when it comes to social issues supported by other shareholders, including many of their peers among the world’s largest asset managers...Concerns about conflicts of interest were recently studied by Harvard Law School corporate governance expert Lucian Bebchuk and Boston University law professor Scott Hirst, who also is the director of institutional investor research at Harvard Law’s corporate governance program. They concluded there were incentives for the biggest index fund companies to “defer excessively” to corporate managers. While they looked at “say-on-pay” proposals where the big index funds were more pro-management than actively managed funds, similar reasoning would apply to environmental issues.

Following the enactment of the Food Safety and Modernization Act (“FSMA”) in 2011, the Food and Drug Administration (“FDA”) embarked on a series of regulatory efforts to increase the safety of America’s food supply. Later this month, the agency will host a public meeting to discuss its plans for “A New Era of Smarter Food Safety.”...The nation’s food safety system is a concern for many stakeholders, from consumers to producers and regulators. The Government Accountability Office has labeled food safety a “high risk issue” for years, noting that the “patchwork nature of federal oversight of food safety may make it difficult to ensure that the government is effectively promoting the safety and integrity of the nation’s food supply.” Harvard Law’s Emily M. Broad Leib and Pace Law’s Margot J. Pollans recently published an article detailing the ways in which the “current narrow approach to food safety is inadequate” to respond to broader issues of health and welfare throughout the food system.

Power shutdowns intended to prevent more devastating California wildfires are raising new concerns about another longstanding environmental threat: air pollution. As utilities halted service to more than 2 million people this week, lines formed at hardware stores selling portable generators, while many hospitals and businesses fired up their own. The prospect of emissions belching from untold numbers of the machines, some powered by diesel and gasoline as well as propane and natural gas, was troubling in a state already burdened with some of the nation's worst air quality...It could be hard to quantify the effects of power shutdowns on air quality because of the many factors to consider, including how to weigh the pollution they cause against the pollution avoided by preventing wildfires, said Joe Goffman, a former assistant administrator with EPA's Office of Air and Radiation during the Obama administration. "The kinds of fires California has seen in recent years have been major, catastrophic polluters in and of themselves," said Goffman, now director of the Harvard Law School Environment and Energy Law Program. "These shutdowns are being done precisely to prevent that from happening."

Democratic presidential contenders are coming under increased pressure from their base to take a page from Donald Trump’s 2016 playbook and release a shortlist of potential Supreme Court nominees — one part of a larger strategy from party activists to make the courts a central issue in the 2020 race. Demand Justice, a group founded to counteract the conservative wing’s decades-long advantage over liberals in judicial fights, will release a list of 32 suggested Supreme Court nominees for any future Democratic president as they ramp up their push for the 2020 contenders to do the same. The slate of potential high court picks includes current and former members of Congress, top litigators battling the Trump administration’s initiatives in court, professors at the nation’s top law schools and public defenders. Eight are sitting judges. They have established track records in liberal causes that Demand Justice hopes will energize the liberal base...The full list from Demand Justice includes...Sharon Block, the executive director of the labor and worklife program at Harvard Law School and former member of the National Labor Relations Board.

President Donald Trump's executive orders aimed at curtailing federal agencies' use of informal guidance in policymaking could prevent agencies like the U.S. Environmental Protection Agency and Department of Energy from reacting quickly to industry problems. The regulated community expects overall relief from the orders, but also knows the change means that when businesses need environmental regulatory clarity, they could get bogged down in lengthy rulemakings and subsequent litigation. ... "The short answer is: the more rulemaking, the more litigation," said Joseph Goffman, a former Obama-era EPA official who is now the executive director of Harvard Law School's Environmental and Energy Law Program. "The increased burden will fall on DOJ if so, as the agency tends to engage in consultation with stakeholders even on guidance and sometimes puts out draft guidance for comment."

Harvard Law School professor Charles Fried and Case Western Reserve Law professor Jonathan Adler explain why a speedy impeachment inquiry is necessary.

Presidential candidate Sen. Elizabeth Warren, D-Mass., is getting some attention for her recently released labor platform, which focuses on unions and "sectoral bargaining," a concept new to most Americans. Sectoral bargaining is when an entire field or industry agrees on basics, such as safety standards or minimum wages, rather than each company bargaining with its own workers. Benjamin Sachs, professor of labor and industry at Harvard Law School, said it's worth noting because union membership has decreased in the United States. He said he thinks that's partly because of the way businesses or enterprises handle their bargaining now. "The problem with enterprise bargaining," he said, "is that as soon as you have a union in one enterprise, that puts that enterprise at a competitive disadvantage with all the other enterprises in the same market."

First came a flash. Thirteen-year-old Setsuko Nakamura felt as if she were drifting skyward. And then darkness. Seventy-four years later Setsuko still remembers the moment of detonation after the U.S. dropped the atomic bomb on Hiroshima, the first of two exploded over the island nation, a deployment that proved so horrendous the weapons have never been used since. “That very morning I was at the military headquarters, not at the school,” she told a rapt audience at Harvard Law School on Tuesday as part of the University’s Worldwide Week. Instead of being in class on Aug. 6, 1945, Setsuko was reporting for her first day of work, as one of the thousands of students the government mobilized to provide cheap labor during the wartime shortage. ... “The eyewitness accounts of Setsuko and other survivors provide a vivid reminder of the human consequences of nuclear weapons,” said Bonnie Docherty, associate director of Armed Conflict and Civilian Protection and lecturer on law at the Law School’s International Human Rights Clinic. During negotiations for the U.N. treaty, the clinic provided legal advice and advocacy support to ICAN.

A war of words and a stalemate in Washington this week, after the White House declared that it will not cooperate with the impeachment inquiry. President Trump tweeted that the Democratic-led House inquiry was "a totally compromised kangaroo court." Democrats said the president is obstructing justice, and vowed to press on. So, what happens now? Guests: Noah Feldman, professor at Harvard Law School. He tweets @noahrfeldman. His piece in the New York Times is called "This Is a Constitutional Crisis. What Happens Next?" He tweets @noahrfeldman. Nancy Gertner, former Massachusetts federal judge, senior lecturer at Harvard Law School and WBUR legal analyst. She tweets @ngertner.

An article by Cass Sunstein: The White House’s fierce response to the impeachment inquiry by the House of Representatives, calling the enterprise “an unconstitutional effort” and a violation of “constitutionally mandated due process,” seems to make one commitment: noncooperation. The key sentence in the eight-page letter, signed by White House counsel Pat A. Cipollone, is this: “Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.”

A nugget of political arithmetic is suddenly everywhere: “Two-thirds majority.” This is the share of votes required to convict President Trump in an impeachment trial in the United States Senate. That’s 67 senators, if you’re counting—or, in the glass-half-empty variation, the number of Republican senators required to jump ship is 20. ... “The Constitution contains quorum requirements [elsewhere] and clearly distinguishes between percentages of a particular chamber and percentages of ‘members present,'” said Laurence Tribe, a professor of constitutional law at Harvard Law School and the co-author of the book To End a Presidency: The Power of Impeachment. “That language in the provision for Senate conviction on impeachment charges is quite deliberate, creating precisely the possibility” described above.

The late Chief Justice William Rehnquist was a busy man on Jan. 20, 1999. The impeachment trial of President Bill Clinton was in its second week, and Rehnquist had to stop presiding over an oral argument at the Supreme Court, cross the street, and preside over the Senate. One of the lawyers arguing before the high court that day was John Roberts. Once one of Rehnquist's law clerks at the high court, Roberts could be juggling the same two jobs as his former boss soon. ... Restraint might be difficult in the current political environment, however. Richard Lazarus, a Harvard Law School professor and Roberts' roommate when both were students there in the 1970s, says Senate Democrats and Republicans worked together to set rules for the Clinton trial. That may be harder this time around. “He knows that when he crosses First Street, he's going to be putting himself right in the middle of the workings of the political branch," Lazarus says. "He’s going to work hard to keep above the fray.”

Breathtaking in scope, defiant in tone, the White House’s refusal to cooperate with the House impeachment inquiry amounts to an unabashed challenge to America’s longstanding constitutional order. In effect, President Trump is making the sweeping assertion that he can ignore Congress as it weighs his fate because he considers the impeachment effort unfair and the Democrats who initiated it biased against him, an argument that channeled his anger even as it failed to pass muster with many scholars on Wednesday. ... Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official under President George W. Bush, said Mr. Trump’s position was more political than constitutional. “The White House letter’s legal objections don’t have merit,” he said. “The letter, like the ‘official impeachment inquiry’ itself, is a hardball tactic designed to achieve maximum political advantage” before the public.

An op-ed by Nikolas Bowie: In 1947, Congress passed and President Harry Truman signed a law giving the people of Puerto Rico the right to elect their own governor. Until then, all territories of the United States, including Puerto Rico, had been governed by men appointed by the president and confirmed by the Senate. Most governors had been known more for their relationships to the president than, say, for their ability to speak Spanish. But after that 1947 law, Puerto Rican voters elected Luis Muñoz Marín to begin what would become a transformative governorship. Even as more recent governors have resigned in disgrace, democratic self-government in Puerto Rico has remained. But that could change. Next week, the Supreme Court is scheduled to consider a case that could radically undermine the ability of over four million American citizens — in Puerto Rico, other territories and even the District of Columbia — to elect their own chief executives.

An op-ed by Noah Feldman: For the first time since President Richard Nixon refused to turn over the White House tapes, the United States is facing a genuine constitutional crisis. To be sure, Donald Trump had already created a crisis in the presidency by abusing the power of his office to pressure foreign governments to investigate his political rival Joe Biden. But that act on its own didn’t count as a constitutional crisis, because the Constitution prescribes an answer to presidential abuse of office: impeachment. Now that President Trump has announced — via a letter signed by Pat Cipollone, the White House counsel — that he will not cooperate in any way with the impeachment inquiry begun in the House of Representatives, we no longer have just a crisis of the presidency. We also have a breakdown in the fundamental structure of government under the Constitution. That counts as a constitutional crisis.

An article by Noah Feldman: A federal district judge in New York has held that the Manhattan district attorney may subpoena Donald Trump’s tax records as part of a criminal investigation. Apart from the obvious political implications, there’s something constitutionally significant about the decision by Judge Victor Marrero, a Bill Clinton appointee. The judge took the opportunity to attack two memos written by the Department of Justice, both of which maintain that a sitting president cannot be criminally prosecuted. These memos form the basis for the department’s current policy of not indicting a sitting president in federal court.