Media Mentions

An op-ed by Laurence Tribe and Ron Fein: President Trump’s favorite sheriff is back in court. On Wednesday, lawyers for former Arizona sheriff Joe Arpaio will argue a strange federal appeal in San Francisco. Part of what makes it strange: The court was so concerned about the Department of Justice’s position in the case that it appointed an outside special prosecutor. The House’s impeachment inquiry ought to pay attention...It’s tempting for the House of Representatives’ impeachment inquiry to zero in on Ukraine. The case for focusing the nation’s attention on abuse of power is compelling, but the committee needs to consider broadening whatever article of impeachment accuses the president of abusing his presidential authority to encompass abuses unrelated to the Ukraine fiasco. This broader article should include such abuses as unjustifiably refusing to cooperate with the impeachment process authorized by the Constitution; corruptly seeking to undermine all legitimate inquiries into how the president ascended to his high office in the first instance; and blatantly misusing the pardon power, not to temper justice with mercy, but rather to cover up executive misconduct or to facilitate violations of individual rights. The arguments in Arpaio’s case on Wednesday should remind us that the Constitution is too important to leave only to the courts.

Exxon Mobil Corp. is heading to trial today over "shadow prices." The oil giant is accused of misrepresenting proxy costs of carbon to its investors — hypothetical prices on carbon dioxide that companies all over the world have begun incorporating into their business plans to account for climate change regulations. The use of these theoretical numbers is growing as companies grapple with the possibility that oil revenue could fall as governments address climate change through carbon taxes...But Hana Vizcarra, a staff attorney with Harvard Law School's Environmental and Energy Law Program, cautions against putting detrimental pressure on a burgeoning landscape of corporate climate disclosures. She suggests that attorneys general like James wield their legal power like a "blunt instrument" when used for policymaking, and that complex securities and disclosures laws could put a chilling effect on companies that want to disclose their climate risks. "AGs must walk a thin line to insure companies do not mislead investors and consumers while also not jeopardizing existing investor efforts to encourage more detailed climate-related disclosures from energy companies," Vizcarra wrote in a recent white paper.

On July 25, just a day after former Special Counsel Robert Mueller testified before Congress and essentially concluded his investigation of President Donald Trump’s various intersections with Russia, Trump asked Ukraine’s leader to find dirt on a political opponent – indulging in some of the very behavior that Mueller had been investigating but couldn’t prove. In other words, Trump escaped Mueller’s probe and then turned right around and hit a self-destruct button...Laurence Tribe, a professor at the Harvard Law School and a leading constitutional scholar, told me that he sees some method in Trump’s madness on the White House lawn. “He obviously believes that if he commits his felonies in broad daylight and out in the open that he hasn’t done anything wrong -- and that no one would think he’s stupid enough to commit an impeachable offense in front of everyone,” he said. If Trump is muddying the waters by giving Democrats too many impeachable acts to track, Tribe suggests that they focus solely on building their case around two articles of impeachment that involve his Ukraine and Russia dealings: betrayal of country and stonewalling Congress. Trump’s comments Thursday about China can inform those charges, Tribe says, but he thinks it would be a strategic mistake for it to be turned into a standalone article of impeachment.

After a decade of improvements in air pollution, the U.S. is backsliding. And that means more people are dying prematurely, according to new research. The paper authors don’t point to a specific reason why the increase happened, but the numbers are clear that it occurred under the presidency of Donald Trump. A team of economists at Carnegie Mellon University published their working paper Monday with the National Bureau of Economic Research... “Since 2017, the agency, through a variety of actions, has signaled it is going to take a more relaxed approach,” Joe Goffman, former associate administrator for Climate and Senior Counsel at the EPA’s Office of Air and Radiation who now helps run Harvard Law School’s Environmental Law Program, told Earther. “This administration has sent enough signals to sources that they are operating under a more lenient regime that could corroborate the data that is the focus of this report.”

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.”...While fewer Americans are union members than in the past, Sachs argued that doesn’t mean unions are less popular. According to Gallup polling, Americans increasingly have approved of labor unions since 2009, soon after the recession.

President Trump urged his party to “get tougher and fight” against his impeachment Monday as House Speaker Nancy Pelosi (D-Calif.) distributed a “fact sheet” outlining what her office called a gross abuse of presidential power, including a “shakedown,” “pressure campaign” and “cover up.” A Republican effort to censure House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) for his handling of the inquiry failed Monday, with the House voting along party lines to block a floor vote on the measure...Matz, who clerked for former Supreme Court Justice Anthony M. Kennedy, recently wrote a book, “To End a Presidency: The Power of Impeachment,” with another impeachment scholar Democrats are consulting, Laurence Tribe. Tribe, while not on staff or being paid, has also become a regular source of advice for House Democrats, particularly for his former students who are now in the thick of the impeachment probe: Schiff and Jamie Raskin (D-Md.), both of whom studied under Tribe at Harvard Law School.

You've probably seen the ads. “They have spiffy marketing machines that are really good at drawing people in,” says Toby Merrill, director of the Project on Predatory Student Lending at Harvard's Legal Services Center. “So, of course people see those ads and think that it's a good opportunity, that's what they're meant to make you think.” Merrill is talking about for-profit colleges. She warns many for-profit schools fail to deliver on the promises they advertise. “What the schools are telling people is that they're providing high quality state of the art training, often times like vocational hands on learning,” explains Merrill. “And either when students enroll they find out that's not true, or often it's even after they leave the school and find out their degree isn't valued by employers.” Merrill says graduates of for-profit colleges are often saddled with a worthless degree, and massive debt.

Pressure is mounting on Senate Republicans to do something about the Trump administration’s human rights violations, blatant corruption, Giuliani-hackery, and mounting counterintelligence problems, mostly thanks to the House Democrats finally opening an impeachment inquiry into the president’s behavior. While the idea of 20 GOP senators openly defecting to support a vote to convict Donald Trump in the Senate still remains whimsical, we’re seeing significant cracks in the wall of support for any and all Trump-y conduct...As professor Laurence Tribe of Harvard Law School (also a Slate contributor) noted in an email to me: "Sen. Graham does seem to be parroting WH talking points, and not the most effective ones, either. Saying he needs to be 'shown' that 'Trump was actually engaging in a quid pro quo, outside the phone call,' is particularly bizarre. What about the call itself? It was hardly chopped liver. Its explicit use of the word 'though' to link (a) the president’s willingness to release the aid that Congress had voted and that Ukraine was desperately seeking to defend itself from Putin’s aggression, to (b) the favor Trump wanted in return was enough in itself to establish that Trump was conditioning the aid package on assistance in his political quest both to erase Russia’s influence on his original election and to undermine his most likely 2020 opponent. If that’s not 'quid pro quo,' nothing is."

With the 2020 race for the White House in full swing, speakers at a Harvard panel on Saturday sharply differed on whether an interstate compact…

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.