Media Mentions

In a paper released earlier this month, researchers at Harvard Law School’s Criminal Justice Policy Program lay out a road map for reforming how courts across America can reform the imposition of excessive fines and fees, the devastating impacts of which fall disproportionately on the poor and on people of color. In “Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform,” authors Sharon Brett and Mitali Nagrecha argue that revenue-raising fees designed primarily to raise revenue for local governments should be eliminated altogether and that the amounts of court-imposed fines should be determined by a mix of factors, including the severity of the offense and people’s ability to pay. Warrants, driver’s license revocation, and incarceration should not be used to compel payment or punish nonpayment, they argue.

An article by Noah Feldman:  If it’s true (and we may soon find out) that Donald Trump froze U.S. government aid to Ukraine and made it clear to the Ukrainian president that he would unfreeze it if Ukraine were to investigate Joe Biden, that is certainly an outrage. Depending on how you define the term, it may also be a “high crime” deserving of impeachment under the Constitution. But is it a crime under existing federal law? The answer turns out to be tricky. And if history is a guide, the question will be hotly debated in any process of impeachment.

The president’s critics have found numerous justifications for impeachment throughout his tenure, including obstruction of justice during the Mueller investigation, violations of campaign finance laws in the payment of hush money to two women and what seems to be regular defiance of the Constitution’s emoluments clause...Impeachment is a process whose territory remains largely uncharted, since only two presidents, Andrew Johnson and Bill Clinton, have ever been impeached, and neither was convicted. “Because it has been used so rarely, and because it is a power entrusted to Congress, not the courts, impeachment as a legal process is poorly understood,” Noah Feldman and Jacob Weisberg have written in The New York Review of Books. “There are no judicial opinions that create precedents for how and when to proceed with it.”...But “not all crimes by federal officials have been seen as impeachable,” write Laurence Tribe, a professor of constitutional law at Harvard, and Joshua Matz, an adjunct professor at Georgetown Law, in their book “To End a Presidency.” So where exactly does the line fall? During Bill Clinton’s impeachment trial, Mr. Tribe argued that his conduct did not rise to the level of an impeachable offense because it related to his private life....The argument against this sort of ad hoc impeachment has its roots in Supreme Court Justice Benjamin Curtis’s defense of President Andrew Johnson during his impeachment trial in 1868. As Nikolas Bowie, an assistant professor at Harvard Law School, writes in the Harvard Law Review, Curtis believed that retroactively criminalizing a president’s behavior — inflammatory, racist campaign speeches — would violate a fundamental principle of common law: “There must be some law,” Curtis argued, “otherwise there is no crime.” Mr. Bowie argues that the decision to impeach Mr. Trump without any statutory justification would set a dangerous precedent that “would apply not just to someone as unpopular as President Trump but also to future Presidents whose policies happen to misalign with a congressional majority.”

Cass Sunstein, professor at Harvard Law and author of 'Impeachment: A Citizen's Guide', explains what the process would look like for President Trump.

An article by Harvard Law School student Todd Carney:  Last July, after months of tension, the EU punished Turkey for illegally drilling for gas off the coast of Cyrpus. The penalty had the EU withdraw $164 million in foreign aid to Turkey and suspend contact between high-level EU officials and Turkish leaders. Prior to this decision, the EU leaders had repeatedly warned Turkey that it was committing an illegal action by drilling in an area that Cyprus had sole domain over. Turkey had repeatedly responded that Cyprus did not have jurisdiction over the waters because the disputed area was under the jurisdiction of the country of the Turkish Republican of Northern Cyprus (TRNC). Turkey is the only nation in the world that has recognized the TRNC as a state. Though this conflict may appear to solely involve Turkey and Cyprus, further analysis shows that the disputes raises several international legal issues that entangle the West as a whole.

The last time he was accused of collaborating with a foreign power to influence an election, he denied it and traveled the country practically chanting, “No collusion!” This time, he is saying, in effect, so what if I did? Even for a leader who has audaciously disregarded many of the boundaries that restrained his predecessors, President Trump’s appeal to a foreign power for dirt on former Vice President Joseph R. Biden Jr. is an astonishing breach of the norms governing the American presidency...“I do regard this as a transgression by the president even more egregious and dangerous, and even more clearly calling for impeachment, than the many that have come before it,” said Laurence H. Tribe, the Harvard law professor and an author of “To End a Presidency,” a book on impeachment. “It’s difficult to imagine a purer example, even on the president’s own account of his conduct, of why the Constitution’s framers thought it essential to include the impeachment power,” he added.

Investors are allocating ever greater sums to passive investments including ETFs and index trackers. Regulators have taken note, says David Stevenson. Passive investments are on a roll. In the US both exchange-traded funds (ETFs) and passively managed funds have recorded massive inflows. Both products share the same idea: keep costs low and eliminate the risk of an active fund manager underperforming a benchmark index by just buying the stocks inside an index...But a backlash against passive funds is building. The key issue is regulatory concerns about market power and potentially uncompetitive behaviour... The upshot, Harvard Law’s Einer Elhuage told ETF Insight, is that the Big Three’s dominance “could lead to antitrust liability.”

At 10 a.m. the Senate HELP Committee will vote on Eugene Scalia’s nomination to lead the Labor Department. Scalia, who has been a partner at the international law firm Gibson, Dunn & Crutcher and also previously served as chief legal officer for the Labor Department during the George W. Bush administration, is expected to win the panel’s approval. Republicans hold a 12-11 majority on the HELP committee...Scalia’s nomination won the backing of Cass Sunstein, a Harvard law professor who oversaw the White House Office of Information and Regulatory Affairs during Barack Obama’s first term. “I am aware that in some domains, Scalia has taken positions, in terms of policy and law, in opposition to regulations that many reasonable people strongly support … ” Sunstein wrote in an August letter supporting the nomination. “For Scalia, as for many lawyers, it is easy to take comments or positions out of context, and to give a less-than-favorable picture of what he really thinks, or what he would do in a position of public trust.” He added that Scalia “does not have an ideological straightjacket. He takes issues on their merits.”

There are more reactions today to a July call President Trump made in which he asked Ukraine's leader to investigate former Vice President Joe Biden and his son. This weekend, the president admitted to discussing the vice president and his son, Hunter, with Ukranian president Volodymyr Zelensky. "The conversation I had was largely congratulatory, largely corruption, all of the corruption taking place. Was largely the fact that we don't want our people, like Vice President Biden and his son, creating to the corruption already in the Ukraine," the president said. The call raises a number of critical questions, including whether the president acted unlawfully. Guests [include]...Nancy Gertner.

A new book penned by Jack Goldsmith, a Harvard law professor and the former U.S. assistant attorney general, claims the FBI knows who killed legendary labor leader Jimmy Hoffa, but it won't admit that it blamed the wrong man. In his new book, "In Hoffa's Shadow," Goldsmith lays out his case for why he believes federal investigators allowed Chuckie O'Brien, the labor boss's protege, to be known as the key suspect in Hoffa's mysterious disappearance in 1975, despite evidence proving otherwise. Hoffa served as the president of the International Brotherhood of Teamsters labor union until 1971, making him a hero to many blue-collar Americans. He also had powerful enemies and ties to organized crime. Goldsmith is also O'Brien's stepson.

For more than four decades, Chuckie O’Brien has been known as a key suspect in Jimmy Hoffa’s disappearance. Now, the author of a new book, "In Hoffa's Shadow," says the feds were planning to clear O’Brien. He also says the feds know who’s responsible for one of the most notorious crimes in American history, but they’re not revealing any names. Author Jack Goldsmith has a unique connection to the case: He’s Chuckie O’Brien’s stepson.

Having a criminal record can make it harder to find work and housing, but a new local study asks whether it helps to have your record expunged. Expungement erases past arrests and charges, and removes old or low-level convictions from public view. But no empirical data show how much of an impact it has on job or housing prospects, or on the chances of future arrests. Harvard University’s Access to Justice Lab hopes to answer that question by following people who get their records cleared over a seven-year period. Participants in Pennsylvania will come from Allegheny, Beaver, Butler and Lawrence counties. Similar research will also be conducted in Kansas. “What we are trying to do is to establish and create rigorous evidence … about whether expungement does in fact help people,” said Harvard Law School professor Jim Greiner, who is leading the project. Greiner expects expungement to be helpful. But he said that past studies have shown only that it tends to be associated with better outcomes, such as better access to job and lower rates of recidivism. No research, he said, measures the effect of expungement alone.

Four feminist law professors at Harvard Law School have been telling some alarming truths about the tribunals that have been adjudicating collegiate sex for the past five years. Campus Title IX tribunals are “so unfair as to be truly shocking,” Janet Halley, Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner proclaimed in a jointly authored document titled “Fairness for All Students.” That document followed up on a previous open letter signed by 28 members of the Harvard Law School faculty in 2014 arguing that the updated sexual assault policy recently installed at Harvard was “inconsistent with some of the most basic principles we teach” and “would do more harm than good.”

Ariana Grande's voice fills the rented Chrysler Pacifica minivan: “The light is coming to give back everything the darkness stole.” Varshini Prakash, executive director of the Sunrise Movement, bops her head, keeping her hands at ten and two on the wheel. “When did this come out?” she asks Jesse Meisenhelter, fellow Sunriser and her copilot on our 10-hour drive between Louisville and Washington, D.C. “It’s so relevant!” Humming along, Meisenhelter, 25, and Prakash, 26 (the same age as Grande), seem more like carefree coeds than leaders of a self-described “army of young people” touring the country to rally support for the Green New Deal—the polarizing climate resolution presented in February to Congress by Representative Alexandria Ocasio-Cortez and Senator Ed Markey. ... In July, centrist Democrats in the House presented a more moderate plan to curb carbon emissions by 2050 rather than the Green New Deal’s eyebrow-raisingly ambitious goal of 2030. “We are inspired by the energy, activism, and outside mobilizing of the Sunrise Movement and the millions of young people across the country who are using their power to bring about transformational change,” Speaker Pelosi wrote me in an email. “Guided by their voices and the vision and values of our caucus, House Democrats are taking decisive action to defend the people and places we love.” When I speak to Jody Freeman, a professor of environmental law at Harvard University and a former legal counsel in the Obama administration, she tells me that while she admires the ambitiousness of the plan, “I’m not sure that the folks pushing these policies have a pragmatic view of what is possible, given how hard this is politically.”

One day after hundreds of people massed downtown to protest inaction on climate change, a smaller group gathered at Pulaski Park to call for greater accountability from lawmakers on issues such as gun control and immigrant rights. ... Last to speak at the rally was Jennifer Taub, a visiting professor at Harvard Law School and an occasional cable news commentator. After leading the group in singing the U.S. Constitution’s preamble in “Schoolhouse Rock” style, she called for people to petition lawmakers for a vote in the House of Representatives on potential articles of impeachment regarding alleged obstruction of justice against President Donald Trump. “The House has control that they’re not using,” she said.

A clashing array of cultural forces virtually assures a rough landing for Samantha Power’s memoir, “The Education of an Idealist.” Power, who won a Pulitzer Prize for her brilliant and controversial 2002 book “‘A Problem from Hell’: America and the Age of Genocide,” managed a career move that has been causing problems for its practitioners since at least the days of Machiavelli: She moved from the theoretical worlds of academia and literature to the real-consequences world of diplomacy. “The Education of an Idealist” is both the story of that transformation and the next step in the process.

Want a clean slate but don’t know if you qualify for an expungement in Kansas? A free event later this week in downtown Wichita will help people figure out whether they’re eligible to have their criminal record sealed. Kansas Legal Services and others will be at the Advanced Learning Library, 711 W. Second, from 10:30 a.m. to 5 p.m. Friday looking over criminal cases and giving advice to people seeking expungement. ... People who are immediately eligible for expungements will have options on how to proceed. Kansas Legal Services will have paperwork and instructions on site at the library for those who don’t think they need additional help from an attorney to seal their record. Those with state court convictions who want a lawyer’s help can join a new, multi-year expungement study conducted by Kansas Legal Services and Harvard Law School’s Access to Justice Lab that will look at how sealing criminal records affects housing and job opportunities.

An op-ed by Cass Sunstein: In April 1910, former president Theodore Roosevelt spoke before a large audience in Paris. “The poorest way to face life,” he said, “is with a sneer.” These days, too many Democrats are sneering — not only at President Donald Trump, but also at one another. From the left, many progressives are describing former Vice President Joe Biden as out of touch, old, too conservative, maybe even a bit racist. From the center, many Democrats are describing Senator Elizabeth Warren as unelectable, unlikable, unrealistic, disconnected from the values and beliefs of ordinary Americans. That’s a shame for many reasons, but one in particular is that it threatens to put Democrats in a position akin to that of Trump-era Republicans. A recurring question, mostly faced by Republicans in the age of Trump, is whether to work for a party nominee or an elected official with whom they have intense disagreements. Over the last two years, many Republicans have declined to join the Trump administration, others have been criticized for doing so, and some have been, and now are, torn about whether to resign.

An op-ed by Cass Sunstein: There are a lot of misconceptions about impeachment. Incompetence isn’t impeachable. It’s terrible for a president to violate the oath of office, but doing so is not, by itself, an impeachable offense. Even posing a danger to the American people isn’t a legitimate basis for impeachment. Under the Constitution, what is necessary is a “high crime or misdemeanor,” meaning an egregious abuse of presidential authority. Some crimes would not count; consider shoplifting or disorderly conduct. An action that is not criminal might be impeachable; consider a six-month vacation, an effort to jail political enemies or an abuse of the pardon power (by, for example, pardoning associates who have engaged in criminal activity at the president’s behest). If you want to understand what counts as impeachable, read the Declaration of Independence. The Constitution’s impeachment provisions were written against the background set by the Declaration. Read against that background, one thing becomes blindingly obvious: If the president has clearly committed an impeachable offense, the House of Representatives is not entitled to look the other way.

Tired of throwing away spoiled produce? Apeel Sciences says it has gotten to the root of the problem and developed a technology that can double or possibly triple the shelf life of many types of produce, including avocados. ... According to Kroger, 40 percent of food produced in the U.S. is thrown away and households waste more than $1,300 in unused food annually. About 160 billion pounds of discarded food ends up in landfills each year, according to Harvard Law School’s Food Law and Policy Clinic.

Having a criminal record can make it harder to find work and housing, but a new local study asks whether it helps to have your record expunged. Expungement erases past arrests and charges, and removes old or low-level convictions from public view. But no empirical data show how much of an impact it has on job or housing prospects, or on the chances of future arrests. Harvard University’s Access to Justice Lab hopes to answer that question by following people who get their records cleared over a seven-year period. Participants in Pennsylvania will come from Allegheny, Beaver, Butler and Lawrence counties. Similar research will also be conducted in Kansas. “What we are trying to do is to establish and create rigorous evidence ... about whether expungement does in fact help people,” said Harvard Law School professor Jim Greiner, who is leading the project.