Media Mentions

An article by Noah Feldman:  Democrats are talking seriously about ending the legislative filibuster once and for all, effectively changing the number of Senate votes required to pass a bill from 60 to 51. The result would be a transformation in the way the U.S. Senate has operated for well over a century and a half. This may seem like a terrible idea, robbing the Senate of its traditional role as a moderating influence on legislative enthusiasms. Republican Majority Leader Mitch McConnell seems to think so, writing Thursday in the New York Times that Democrats would “regret it a lot sooner than they think.” But consider that it might be a good idea to make the Senate reflect the will of the public more than it has traditionally done. Entrenching minority veto power can certainly have moderating effects. It also blocks one of the most basic principles of democracy: the idea of majority rule.

An article by Noah Feldman:  A federal appeals court has held that members of the Electoral College have a constitutional right to vote for a different presidential candidate than the one they swore to support — and whom the voting public in their states actually chose. It’s a terrible holding. Inventing a right to be a faithless elector invites chaos, elevates formalism over democracy, and shows how indefensible originalism is when applied to evolving norms of democracy.

In a ruling that kicks at the foundation of how America chooses presidents, a federal appeals court on Tuesday said members of the Electoral College, who cast the actual votes for president, may choose whomever they please regardless of a state’s popular vote...Lawrence Lessig, a Harvard law professor who founded the group that brought the case, Equal Citizens, said it was the first time a federal appeals court had ruled on whether electors could be bound in how they vote. Many states, including Colorado, have laws requiring electors to pledge that they will support the winner of the popular vote. The Constitution is mute on the subject. The appeals court noted that a handful of faithless electors have broken pledges to vote with their state’s majority since the presidential election of 1796. Equal Citizens wants the Supreme Court to review the issue before the 2020 election. Because of hyper-partisanship and demographic changes pushing the country into near evenly divided camps, Mr. Lessig said, soon there very likely will be a presidential election that yields a tie or near tie in the Electoral College. Then, many more electors other than Mr. Baca may seek to influence the results, producing chaos. “Whatever side you’re on, whether you think it’s a good or bad idea for electors to have freedom, the question ought to be resolved before there is a constitutional crisis,” Mr. Lessig said.

Sen. Bernie Sanders proposed a $16.3 trillion climate plan Thursday, an expansive blueprint meant to enlarge American ambitions on combating planetary warming in a presidential campaign already marked by aggressive Democratic approaches...“I see these proposals as both markers and mobilizing tools,” said Jody Freeman, who was a climate adviser to Obama and now teaches at Harvard Law School. “They are a marker that says, ‘We care about climate change. We really, really do.’ And they are a mobilizing tool because we are in a primary and the idea is to try to attract the left side of the spectrum.”

An article by Randall Kennedy:  ‘How to Be an Antiracist” is a memoir by Ibram X. Kendi that details his grapplings with racism and his advice for eliminating it. Kendi is the director of the Antiracist Research & Policy Center at American University and the author of “Stamped From the Beginning: The Definitive History of Racist Ideas in America,” which won the National Book Award for Nonfiction in 2016. Kendi’s latest book describes his peregrinations as a child and early adolescent in predominantly black, urban settings in New York; as an anxious student at the predominantly white Stonewall Jackson High School in Northern Virginia; as a journalism major at the virtually all-black Florida Agricultural and Mechanical University; and as a PhD candidate in the African American studies department at Temple University. Kendi dissects what he sees as his own racism in each of these phases of his life.

Hours after China announced retaliatory tariffs on U.S. goods on Friday, President Donald Trump ordered U.S. companies to “start looking for an alternative to China, including bringing your companies HOME and making your products in the USA.”...Trump could treat China more like Iran and order sanctions, which would involve declaring a national emergency under a 1977 law called the International Emergency Economic Powers Act, or IEEPA...Invoking IEEPA could also trigger legal challenges in U.S. courts, said Mark Wu, a professor of international trade at Harvard Law School...A far more dramatic measure, albeit highly unlikely, would be to invoke the Trading with the Enemy Act, which was passed by Congress during World War One. The law allows the U.S. president to regulate and punish trade with a country with whom the United States is at war. Trump is unlikely to invoke this law because it would sharply escalate tensions with China, said Wu. “It would be a much more dramatic step to declare China to be an enemy power with which the U.S. is at war, given the president has at times touted his friendship with and respect for President Xi (Jinping),” said Wu. “That would amount to an overt declaration, while IEEPA would allow the Trump administration to take similar actions without as large of a diplomatic cost.”

... How did special counsel Robert Mueller's testimony before Congress help or hurt the quest to impeach Donald Trump? Did Mueller reveal the entire truth about Donald Trump and his inner circle's collusion with Russia, obstruction of justice and other probable crimes? Are the Democrats approaching the impeachment of Donald Trump in a tactically and strategically sound manner? How would the framers of our Constitution respond to Donald Trump's behavior as president? Have the Constitution's structural flaws allowed Trump to undermine American democracy and the rule of law? In an effort to answer these questions and many others, I recently spoke with Laurence Tribe, a leading scholar of constitutional law and the Carl M. Loeb University Professor at Harvard University. Tribe is the author of several books, including his most recent (co-written with Joshua Matz), "To End a Presidency: The Power of Impeachment."

In response to President Donald Trump’s historic transformation of the federal judiciary, several Democratic candidates for president have promised to prioritize the swift appointment of a new wave of federal judges if they enter the White House. ...Instead of someone like Katyal, Democrats ought to nominate judges whose day jobs involve working for ordinary Americans. That means, for example, choosing lawyers who represent workers, consumers, or civil-rights plaintiffs, or who have studied the law from that vantage point. Many outstanding lawyers have dedicated their career to advancing the interests of workers. For example, Deepak Gupta has represented the employees’ side in multiple arbitration cases before the Court, and Jenny Yang is a former plaintiffs’ lawyer and former chair of the U.S. Equal Employment Opportunity Commission. Sharon Block is a former National Labor Relations Board member who now runs an employment-law program at Harvard Law School, and Tim Wu is a Columbia Law School professor whose scholarship has questioned corporate power. Any of them could bring to the bench experiences and perspectives that are sorely lacking in our federal courts.

An op-ed by Noah Feldman: The decision by the New York Police Department to fire the police officer blamed for the choking of Eric Garner marked a troubling end to the five-year search for justice for the man whose death sparked Black Lives Matter protests. A police department trial found that the officer, Daniel Pantaleo, had not been truthful when he said he had not used a chokehold on Garner. Because both New York state and federal prosecutors declined to bring criminal charges against the officer, and the city settled a civil suit by Garner’s heirs, this is the only “day in court” Garner’s legacy will ever receive. All in all, this outcome shows how important the Black Lives Matter movement remains. The legal system is primarily designed to look backward and assign blame for particular, individual events. Even at that task it performs imperfectly. But the legal system is truly terrible at forward-looking transformation of institutions like police departments. For that you need political will and new cultural attitudes, not courts. In other words, transformative change requires a social movement, not a judicial verdict.

An op-ed by Jesse M. Fried and Steven Davidoff Solomon: The House of Representatives recently voted 398-17 to reject the global Boycott, Divestment, and Sanctions effort against Israel. Against this lopsided vote, Congresswoman Ilhan Omar offered a resolution defending BDS as an exercise of free speech by Americans. We strongly support free speech, but BDS supporters often use free speech talk to try to dodge accountability for their misbehavior.   Case in point: The American Studies Association’s Israel boycott. In 2013, the ASA’s leadership, known as the National Council, endorsed a resolution to cut ties with Israeli universities. The proposal was put to member vote. Turnout was low; only 20 percent voted in support. But the National Council declared victory anyway and, ever since, claims the resolution was adopted.

Daniel Shapiro, world-renowned expert on negotiation and conflict resolution, founding director of the Harvard International Negotiation Program, and bestselling author of “Negotiating the Nonnegotiable” will be speaking on Saturday, August 24 at 5 p.m. at the Tanglewood Learning Institute’s Big Idea Event at Ozawa Hall in Lenox, Massachusettes. This keynote speech also features cellist Maya Beiser and coincides with the August 25 performances of Schoenberg’s “Peace on Earth” featuring the Tanglewood Festival Chorus conducted by James Burton, and Beethoven’s Ninth Symphony which culminates in the choral movement popularly known as the “Ode to Joy.” Composed more than 80 years apart, the two works present powerfully contrasting portraits of protest, freedom, peace, and shared humanity.

An article by Nancy Gertner and Gail Heriot: In the early days of the Republic, states typically limited the right to vote to “freeholders”—defined as persons who owned land worth a certain amount of money.  It was thought that, among other things, property-less individuals had no stake in the community or might be inclined to vote for profligate spending, since they were not subject to property taxes. Still, land was cheap, and the qualification level was usually set low, so a large majority of free, adult males could vote.

An op-ed by Cynthia Giles, guest fellow at the HLS Environmental and Energy Law Program: As the world warms and people, wildlife and the natural environment suffer increasingly devastating impacts, the Trump administration is systematically erasing climate change from government regulations and policies. The latest: In June 2019, the White House Council on Environmental Quality (CEQ) requested comments on draft guidance on how federal agencies should consider climate when they evaluate federal actions under the National Environmental Policy Act (NEPA). Incredibly, the phrase “climate change” does not appear in the document.

Last August, "Crazy Rich Asians" took the box office by storm, raking in more than $170 million in the U.S. alone. The film was one of several big blockbusters to premier last summer featuring all-Asian casts and Asian leads. The phenomenon was dubbed #AsianAugust, and sparked excitement about a turning point for positive representation in Hollywood. A number of films starring Asian casts have since graced the silver screen, but has the momentum of #AsianAugust continued in the way fans and critics had hoped? Guests: Elena Creef - Professor of Women’s and Gender Studies at Wellesley College. She specializes in Asian American visual history in photography, film and popular culture.  Jenny Korn - Fellow and the Founding Coordinator of the Race and Media Working Group at the Berkman Klein Center for Internet and Society at Harvard University.  Marella Gayla – A recent graduate of Harvard University who has written for The Boston Globe, Curbed and The Marshall Project.

Should the government apply any standards to the quality of the companies that get to sell their shares to the public in an IPO? I realize the SEC has minimum requirements but when I consider some of the companies going public these days, I wonder whether those standards are high enough. ...A corporate governance expert at Harvard Law School, Jesse Fried, told CNN that having a couple within its C-suite could be the least of its problems. "[It] could be a plus or a minus. If it's a minus, it pales in comparison to the other risks. From investors' perspective, WeWork is associated with many business and governance risks."

As the Trump administration takes steps to expedite fossil fuel projects and reduce environmental regulations, it has veered in the opposite direction on offshore wind, delaying a highly anticipated project in Massachusetts. ..Avangrid Renewables said in a statement that it remains committed to the $2.8 billion project but must revise its schedule because "the original timeline is no longer feasible." "Offshore wind is a new area of development—what the whole picture looks like is changing pretty rapidly as interest increases," said Hana Vizcarra, a staff attorney at the Harvard Law School Environmental and Energy Law Program. "So it wouldn't surprise me that this is just sort of a normal hiccup for an agency trying to get through the full process for its first major project."

In many American cities, the cheapest rental housing is single room occupancy, or SRO units or rooming houses. These are tiny rooms with no kitchens and shared bathrooms out in the hallway. As investors buy up SRO properties in urban neighborhoods, several cities have seen low-income tenants pushed out. Chris Burrell from WGBH's New England Center for Investigative Reporting found such renters are struggling to hold on. ...He's not alone. In San Diego, city officials last spring were helping nearly 200 people relocate after a large SRO closed. In Boston, housing advocates see a similar pattern. Eloise Lawrence is an attorney at Harvard Law School's legal clinic, defending SRO tenants against eviction. ELOISE LAWRENCE: People are being thrown out. That's happening across the city because these properties now are so valued. What was considered sort of housing at the last resort is now seen as desirable and profitable.

...Twinem helped write the reply brief for a Kentucky couple at the heart of the lawsuit as a member of Stanford’s Supreme Court Litigation Clinic. The clinic, founded in 2004 by appellate powerhouses Pamela Karlan and Jeffrey Fisher, allows students to work on real-life Supreme Court cases while still in law school. These clinics, which have since cropped up at top law schools across the country, provide quality representation to groups who can least afford it and act as a pipeline to elite appellate work, including at the U.S. Supreme Court. ... “Getting into the certiorari part of the courts’ practice is actually one of the most revealing and educational things we can do in the short time we have,” said Tejinder Singh, a partner at D.C.-area boutique Goldstein & Russell and an instructor at Harvard Law School’s clinic. “So that’s why we tend to focus on it.” Students in some Supreme Court clinics, in addition to working on cert petitions, also work on merits briefs—briefs on the legal arguments in the case.

In July, Secretary of State Mike Pompeo announced a new Commission on Unalienable Rights. This new commission will distinguish between the “unalienable rights” of the 1948 United Nations Universal Declaration of Human Rights and “ad hoc rights” added after the Cold War. By making this distinction, based upon a deeply conservative definition of human rights, however, Pompeo’s commission will actually threaten sexual equality, LGBTQ rights and reproductive health globally. Pompeo’s definition of “unalienable rights” draws on the ideas of a legal scholar who has staked her career on making a stark distinction between human rights and women’s rights. Mary Ann Glendon is a Harvard Law School professor, former U.S. ambassador to the Vatican and outspoken opponent of same-sex marriage and abortion. Pompeo has not just drawn on Glendon’s ideas but also appointed her as the head of the new commission. According to Glendon, “Human rights are women’s rights. … But it is not the case that whatever a particular nation state decides to call a woman’s ‘right’ is necessarily a universal human right.”

Attorneys general from about two dozen Democratic states are challenging the Trump administration’s rollback of one of President Obama’s signature climate regulations. But what the blue state lawyers are really worried about is how the rule may limit future administrations from tackling heat-trapping pollution. ... The case, filed in the U.S. Court of Appeals for the D.C. Circuit, could wind its way to the Supreme Court should Trump win a second term and stop a Democratic rival from repealing his rule before it reaches the high court. "No doubt, it’s going to be a grinding legal battle," said Jody Freeman, founding director of Harvard Law School's the environmental law program.

...This month is the 400th anniversary of that ship’s arrival. To commemorate this historic moment and its legacy, The New York Times Magazine has dedicated an entire issue and special broadsheet section, out this Sunday, to exploring the history of slavery and mapping the ways in which it has touched nearly every aspect of contemporary life in the United States. The 1619 Project began as an idea pitched by Nikole Hannah-Jones, one of the magazine’s staff writers, during a meeting in January.  ... Those involved knew it was a big task, one that would require the expertise of those who have dedicated their entire lives and careers to studying the nuances of what it means to be a black person in America. Ms. Hannah-Jones invited 18 scholars and historians — including Kellie Jones, a Columbia University art historian and 2016 MacArthur Fellow; Annette Gordon-Reed, a professor of law and history at Harvard; and William Darity, a professor of public policy at the Samuel DuBois Cook Center on Social Equity at Duke University — to meet with editors and journalists at The Times early this year.