Media Mentions

A Wisconsin military veteran should not get relief from tax liability on income his ex-wife embezzled, since he must have known of the ill-gotten funds after she was arrested, convicted and jailed, the government told the Seventh Circuit. Rick E. Jacobsen is seeking so-called innocent spouse relief for taxes, interest and penalties owed on the embezzled income for 2011. His claim that he lacked actual knowledge of crimes committed by his ex-wife, Tina Lemmens, does not hold water since Jacobsen had access to bank statements showing the embezzled money, the U.S. said. The actual knowledge legal standard is used to determine whether a person must have been aware of a specific act...Carlton M. Smith of the Federal Tax Clinic at Harvard Law School, who represents Jacobsen, told Law360 that the lower court put too much weight on the actual knowledge factor in light of the fact that Jacobsen qualified for four of the seven factors and that the original purpose of spousal relief was to offer protection against a spouse who fails to report embezzled funds. "The taxpayer concedes that the court is not bound to consider all factors as having the same weight, and that even as many as two or three positive factors can be outweighed by one negative factor," Smith said. "However, the taxpayer argues that four positive factors can't be outweighed by one negative factor when there are only seven factors."

The House Ways and Means Committee lawsuit, in its quest for President Donald Trump’s tax returns, sets in motion a legal battle that may not be resolved before the 2020 presidential election. Courts will be asked to decide not just whether the panel’s request for six years of Trump’s personal and business returns is legitimate, but also whether Congress can sue the executive branch. How quickly it all happens will likely depend on the judge assigned to the case, according to tax practitioners and professors. The issue could eventually reach the U.S. Supreme Court...A second question has to do with the specific request for the tax returns. While Section 6103(f) doesn’t require the committee to explain the reasoning for its request to Treasury, some say a court may still ask for one. “Supreme Court precedent could be interpreted as requiring Congress to have a satisfactory motivation for the request,” said Harvard Law School professor Thomas J. Brennan. “So there’s debate to be had about what sort of rationale is needed.”...The courts may also decide that they can’t rule on the dispute because it involves a “political question,” a term that has special legal meaning. “There are some questions the Supreme Court has said have to be resolved by the political process rather than by the judiciary,” said Howard E. Abrams, who is a visiting law professor at Harvard Law School. The technical term the court would use is that the case is “nonjusticiable.”

The Trump administration’s legal strategy for overturning Obama-era power plant carbon dioxide controls goes beyond simply arguing it has the right to regulate differently, to contend that its way is the only way. If successful, the Environmental Protection Agency could close the door on any future Democratic administration using that section of the Clean Air Act to expansively regulate climate-warming emissions from power plants. The power sector was the second-largest emitter of greenhouse gases in the U.S. in 2017, according to EPA data. But the legal tactic is also risky, critics and supporters both say. If the argument fails, it could fail big—sending the EPA’s repeal and replacement of the Obama-era rule, known as the Clean Power Plan, back to the agency for a redo...“They’re playing a purist’s game,” Joseph Goffman, former senior counsel in the EPA’s air office during the Obama administration, said in an interview. “The authors of this strategy are very, very skeptical of any kind of climate policy and dead set against the EPA using the Clean Air Act as an authority for such a policy.” Goffman is now executive director of Harvard University’s Environmental and Energy Law Program. “The current EPA leadership is trying to shrink the EPA’s Clean Air Act authority over greenhouse gases so it’s small enough that they can ‘drown it in a bathtub,’ ” he added, likening the agency’s tactics to Americans for Tax Reform President Grover Norquist‘s famous quote about cutting the size of the federal government.

With Facebook, Twitter, and YouTube facing widespread criticism for the way they manage hateful, abusive, threatening, or fake content posted by users or content partners on their sites, many question whether private tech companies deserve to wield so much power to control what people can and can’t see on social networks....Facebook first established a massive force of content moderators—mostly employed by third-party companies—to help find and remove toxic content. The company said it had 15,000 content reviewers around the world by the end of 2018. Last November, Facebook CEO Mark Zuckerberg announced that Facebook would also, by the end of 2019, form an external, independent oversight board to oversee its content moderation decisions. The board would be “. . . a new way for people to appeal content decisions to an independent body, whose decisions would be transparent and binding” based on the idea that “Facebook should not make so many important decisions about free expression and safety on its own.”...The whole idea for an oversight board came from outside Facebook, from Harvard Law professor Noah Feldman, who is the main architect of Facebook’s plan. I spoke to him by phone about the details of his plan, and about some of the problems it’s likely to face.

An article by Noah Feldman:  President Donald Trump is politicizing the Fourth of July — so say the president’s critics in tones of frank outrage over his plans for a presidential speech accompanied by fighter jet flyovers. It’s not only, they say, that Trump is promoting militarism by parading some tanks through Washington. Rather, Trump is taking the wholesome, politically neutral, family fun of the holiday and using it to advance his own partisan interests. In place of hot dogs and fireworks, Trump is bringing us Republican elephants. There’s just one problem with this line of criticism: The Fourth of July was a partisan holiday from the time it was first celebrated in the 1790s. It became popular as a self-conscious endorsement of Thomas Jefferson, his Declaration of Independence and the first Republican Party — over George Washington, Washington’s Birthday and the Federalist Party.

An article by Noah Feldman:  We don’t know whether the Department of Justice lawyers working on the census case were fired en masse or quit. Either way, Sunday’s announcement was a genuinely shocking development in President Donald Trump’s efforts to add a citizenship question to the 2020 count. It’s bizarre to the point of being unprecedented for the government to change horses like this in the middle of such a highly time-sensitive legal process. The move signals that the Trump administration is very likely on the way to making some doubtful legal claims — claims that will have to be in stark contradiction to what the Department of Justice has already said to the federal courts, including the U.S. Supreme Court, in a lawsuit brought by civil-rights groups trying to scrap the question.

An article by Charles Fried:  The usual form for a justice who disagrees, no matter how fundamentally, with a decision of the Supreme Court is to end the opinion with the formula “I respectfully dissent.” Justice Antonin Scalia, in particularly high dudgeon, would sometimes drop the adverb. Last week, though, Justice Elena Kagan, writing for the four justices who disagreed with Chief Justice John Roberts’s opinion in Rucho v. Common Cause purporting to withdraw the Court once and for all from passing judgment on the constitutionality of partisan gerrymanders, ended thus: "Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent." Kagan’s occasion for sorrow is deep not only because the chief justice left a fundamental flaw in our constitutional democracy without hope of a judicial remedy, but because of the defective reasoning by which he came to that conclusion.

Collisions between academia and the legal system are in the news lately. Ronald Sullivan, a professor at Harvard Law School and a practicing attorney, had the nerve to join the legal team of a deeply unpopular defendant, Harvey Weinstein. This caused some Harvard students residing in Winthrop House, an undergraduate residence that Sullivan supervised, to declare that they “feel unsafe.” Sullivan is no longer advising Weinstein, ostensibly due to scheduling conflicts, and is no longer a faculty dean at Winthrop House. Meanwhile, some 650 miles to the west, Oberlin College outside of Cleveland found itself on the wrong end of a $44 million jury verdict, since reduced to $25 million. An Ohio court determined that the college had supported students who leveled defamatory accusations of racism against a local store, Gibson’s Bakery, after the arrest of three black Oberlin students who pled guilty to charges of attempted theft and aggravated trespass.

Through the Caselaw Access Project, Harvard Law School has made millions of legal decisions more accessible to researchers than ever before. On campus last week, the inaugural Caselaw Research Summit, hosted by the Harvard Library Innovation Lab, brought to light the diversity of research that the project is making possible. The Caselaw Access Project (CAP) was the result of five years of work by the Harvard Library Innovation Lab at Harvard Law School. Between 2013-18, the HLS Library digitized more than 40 million pages of data covering 6.5 million individual cases; the most comprehensive database of American law available anywhere outside the Library of Congress. But unlike the latter it gives nationwide researchers free, immediate access to judicial decisions from each of the 50 states, dating back to their founding. Tweaks are still being made to CAP, notably a new Historical Trends app that can trace the number of a times a word was used in legal cases over the years, with a timeline pointing to the relevant cases.

Secretary of State Mike Pompeo on Monday announced the creation of an advisory commission on human rights that has engendered controversy since it was proposed. Pompeo said the Commission on Unalienable Rights “will provide the intellectual grist of what I hope will be one of the most profound re-examinations of inalienable rights in the world since the 1948 Universal Declaration.” The panel will be headed by Mary Ann Glendon, a Harvard Law School professor who wrote a book about the United Nations’ 1948 Universal Declaration of Human Rights. Pompeo was Glendon’s research assistant when he studied law at Harvard. Glendon is also a former U.S. ambassador to the Vatican. Besides her academic research, Glendon is known for her antiabortion views. At the 1995 U.N. World Conference on Women in Beijing, she fought successfully to keep abortion from being listed as a human right.

What was he thinking? That is the question many are asking on both sides of the political spectrum. Chief Justice John Roberts repeatedly voted with the Supreme Court's conservatives this term, except in one, and only one, 5-4 decision. Written by Roberts, the ruling blocked the addition of a citizenship question on the 2020 census, leaving an angry President Trump desperately trying to find a way around it. It also left a lot of speculation about the motives of the chief justice..."There's no doubt there's an agenda here," said Harvard Law professor Charles Fried, who served for four years in the Reagan administration as solicitor general, the government's chief advocate in the Supreme Court. He and other Republican former officeholders filed a brief on behalf of those challenging extreme partisan gerrymanders. Alluding to Roberts' famous confirmation hearing comment that the job of a judge is not to bat for one side but to "call balls and strikes," Fried observes caustically, "This is not balls and strikes. This is a long term, shrewdly played, but persistent program."

“The Justice Department is swapping out the lawyers who had been representing the administration in its legal battle to put a question about citizenship on the 2020 Census, possibly signaling career attorneys’ legal or ethical concerns over the latest maneuvering ordered by President Trump." Even more extraordinary, a Justice Department official "said the entire team on the case — both those in political positions and career employees who have served multiple administrations — will be replaced with political and career lawyers from the department’s Civil Division and Consumer Protection Branch.” ...Not to put too fine a point on it, but what these lawyers do will have profound consequences for the country and their careers. Constitutional scholar Larry Tribe warns, “The Department of Justice cannot avoid the long-term credibility cost to its litigating posture of contradicting itself in successive filings simply by changing the names of the career DOJ lawyers on the pleadings or by bringing new faces into court. If that’s the aspiration, it’s not going to succeed.”

An article by Jeannie Suk-Gersen: In 1944, in New York, a decade before Allen Ginsberg, Jack Kerouac, and William S. Burroughs would publish their countercultural works, there was a killer in their midst. Lucien Carr was a brilliant Columbia University student from a prominent Midwestern family. He had introduced the three men to one another and was at the center of the circle of friends that defined what was later known as the Beat Generation. The nineteen-year-old Carr stabbed another member of the group, David Kammerer, in Riverside Park, with a Boy Scout knife, and dumped his body in the Hudson River. Carr claimed that Kammerer, his former scoutmaster, who was thirty-three, had followed him for years, from city to city, and made “indecent” advances. The New York press, defending Carr, portrayed the killing as an “honor slaying.” Although he was charged with murder, prosecutors allowed Carr to plead guilty to the lesser crime of manslaughter. He served two years in a reformatory and then lived out his life as a respected news-agency editor. The case was one of the first high-profile instances of a “gay panic” defense, in which a person claims that his violent act was a sudden emotional response to an unwanted advance from a person of the same sex.

An article by Jeannie Suk Gersen: Had Brett Kavanaugh not been accused of sexual assault, one of the first cases he would have heard as a Supreme Court Justice would have been that of Herman Gundy, a convicted sex offender. When nominated, last July, Kavanaugh was expected to be confirmed in time for the term that started last October. But the emergence of sexual assault allegations against him delayed his confirmation vote until October 6th, just after the Court’s first set of oral arguments—which included Gundy’s request to invalidate his federal conviction for failure to register as a sex offender. In June, the Court denied Gundy’s petition. As it turns out, Kavanaugh’s absence from the case likely changed its outcome.

Common Knowledge: Zero-L, a new online course, is meant to help all incoming students, including those who don’t have any pre-law background. Collecting on Dreams: As a 2L, Toby Merrill ’11 was enrolled in a Harvard Law School consumer clinic, litigating against predatory lenders of subprime mortgages. Her new mission is no less urgent: fighting for people affected by the predatory lending practices of some for-profit colleges, alleged to provide worthless degrees in exchange for thousands of dollars in government-backed loans. Presidential Power Surges: Particular moments in history and strategic breaks with unwritten rules have helped many U.S. presidents expand their powers incrementally. Are Americans Getting Enough Fiber?: Fiber optic technology, which results in dazzlingly fast and reliable internet connectivity, should be available at a low price to everyone in the U.S., as it is in other countries, argues Susan Crawford.

Burning Man and the federal government have a history of disagreeing over law enforcement tactics, and this year is already off to a rocky start even though the event is two months away. After the release of a more than 300-page report from the Bureau of Land Management that details future expectations of the 80,000-person event, Burners already are protesting possible screenings for weapons and drugs. BLM officials noted in the report that they plan to contract a private security firm to "screen vehicles and participants, vendors and contractors, and staff and volunteers entering the event." Officials have emphasized that the operation will be comprised of screenings, not searches...[According to retired U.S. District Court Judge Nancy] Gertner: A screening could cover a number of activities, but if they pat down people when they come to Burning Man to see if they have drugs, then that’s a search. You can’t call it anything else. If they say to the person, 'Do you have drugs on you?' and they can say 'No,' then that’s arguably not illegal... If all they’re doing is asking a question, then I suppose the inquiry is not a search. If it’s just a conversation, it could pass muster. If it’s any touching or searching bags, that's a search.

Anne Idsal begins this week as EPA's new acting air chief with a full plate of unfinished regulatory actions before her. People tracking EPA's deregulatory proposals don't anticipate Bill Wehrum's abrupt exit last week will have much effect on the pace of work, even as Idsal gets up to speed on the full scope of the agency's ambitious agenda. "It's unlikely that the Air Office's deregulatory tempo will change regardless of Wehrum's departure," said former EPA senior official Joseph Goffman, executive director of the Environmental and Energy Law Program at Harvard Law School, which tracks environmental deregulation under the Trump administration. "The transition from Wehrum to Anne Idsal, a political appointee who had already been serving in the EPA, reminds me of the sports cliche, 'it's next man/woman up' so the game can go on," he wrote in an email.

Industry lawyers praised outgoing EPA air chief Bill Wehrum yesterday for setting limits on Clean Air Act climate rules they hope will outlast the Trump administration. Wehrum, who will leave EPA on Sunday, raised questions with his abrupt exit. But former EPA air chief Jeff Holmstead, who worked with Wehrum in the George W. Bush administration, said his former colleague had planned to depart after work was complete on a replacement for the Obama-era Clean Power Plan carbon rule...Joe Goffman, who served as the air office's top lawyer under Obama and is now at Harvard Law School, said the ACE rule's preamble "read like a brief on behalf of the proposition that the Clean Air Act ... gives EPA next to no authority to do anything." He attributed it to Wehrum. Goffman and others said the air office and its chief, in their zeal to limit what a future administration might do, might have made their own rule more vulnerable.

An op-ed by Gina McCarthy, Janet McCabe and Joseph Goffman:  We were part of the senior team at the Environmental Protection Agency (EPA) during the Obama administration, when the agency's mission truly was to protect the health of American families from dangerous pollution and act on perhaps the greatest challenge of our time: climate change...Had the CPP gone into effect, the EPA's 2015 analysis showed that by 2030 power plant CO2 emissions would have fallen by 32 percent below 2005 levels and the pollutants that cause life-threatening smog and soot would have been reduced significantly. The CPP pollution cuts would have saved thousands of lives and prevented tens of thousands of pollution-related illnesses...In sharp contrast, the Trump administration's ACE will achieve virtually no reductions in CO2 emissions and next to no cuts in soot and smog pollution. It will prevent next to none of the premature deaths, cardiac problems, lung damage or asthma attacks suffered by the most vulnerable among us—our kids, seniors and poor families—that the CPP would have prevented.

The mastermind behind the Trump administration’s pro-coal alternative to Obama’s Clean Power Plan is out, reportedly another victim of an ethics scandal. The Environmental Protection Agency announced Wednesday that William Wehrum, the mercury-loving weirdo who ran the agency’s Office of Air and Radiation, is stepping down by the end of this month. Honestly, good riddance...“Wehrum was an enthusiastic executioner of the Trump EPA’s anti-public health anti-environmental agenda,” said Joe Goffman, who worked on the Clean Power Plan when he worked at the EPA, in a statement emailed to Earther. “To the great harm of the public and the environment, that agenda will roll on regardless of who replaces him.”

An article by Noah Feldman: The U.S. Supreme Court issued an important decision Wednesday narrowly declining to overrule an important doctrine of administrative law, with Chief Justice John Roberts joining the liberal justices solely on the basis of stare decisis — the principle that precedent should be respected, even if you don’t agree with it. For those who care deeply about the future of the administrative state, the first half of that sentence is the interesting one. The court is now fully engaged in an epic battle over whether to dismantle administrative law as we know it. That battle pits the insurgent, activist Justice Neil Gorsuch against the court’s liberals, who are very much on the defensive. In the case decided Wednesday, Kisor v. Wilkie, Justice Elena Kagan managed to pull off a successful piece of counterinsurgent strategy, persuading Roberts not to go over to the rebel side.