Media Mentions

The Justice Department brief filed on May 1 amounts to the Trump administration picking and choosing what parts of the Affordable Care Act should stay in place and also suggests it does not understand the law, experts told Healio Primary Care Today. ... “This latest brief is tortured legal reasoning,” Phil Waters, JD, clinical fellow at the Center for Health Law and Policy Innovation at Harvard Law School added.

Can a famed law professor serve on the defense team of the nation's highest profile #MeToo case — and also adequately serve the needs of university students under his care? That is one of the questions at the center of a controversy that's erupted at Harvard University. It involves law professor Ronald Sullivan. He's done some of the nation's most important criminal justice work on behalf of the wrongly incarcerated, and until recently he was also on Harvey Weinstein's defense team. Sullivan was also the faculty head of a Harvard dorm. ... "There is no inconsistency between being a faculty dean of a house at Harvard University and, at the same time, being a criminal defense attorney for Harvey Weinstein," Randall Kennedy, professor at Harvard Law School, told On Point's Meghna Chakrabarti.

Subpoenas are flying. Lawsuits are multiplying. Democratic leaders claim the country is in the grip of a “constitutional crisis.” And President Trump is crying foul. While it may sound like just the latest twist on Washington’s workaday partisan warfare, numerous legal experts and other scholars say the escalating conflict between House Democrats investigating the president and a defiant White House is entering uncharted territory. ... Laurence Tribe, a Harvard constitutional law professor and a political liberal, called Trump’s blanket refusals to comply with numerous subpoenas and other requests “completely unprecedented in the history of the United States.” ... “We’re at the beginning of a very lengthy and rather complicated and various process,” given the numerous prongs of the broader standoff, and the complexities embedded in each case, said Harvard law professor Charles Fried, who was solicitor general under President Ronald Reagan. The slowness of the legal process will likely work to Trump’s political favor, he said.

One year after the Supreme Court dealt government employee unions a severe financial blow, the country’s biggest public employee unions remain surprisingly flush. In its June 2018 ruling in Janus v. American Federation of State, County and Municipal Employees, the high court shut off a crucial source of revenue for unions that represent government workers: mandatory fees collected from union nonmembers to cover their share of collective bargaining costs. ... “In talking to folks, my perception is that there has been good news, that membership has not been falling off dramatically,” said Sharon Block, a former Obama Labor Department official who now runs the Labor and Worklife Program at Harvard Law School.

The Post reports: A federal judge on Thursday ordered that prosecutors make public a transcript of a phone call that former national security adviser Michael Flynn tried hard to hide with a lie: his conversation with a Russian ambassador in late 2016. ...How big a deal is this? “It appears to support the mounting evidence uncovered by Mueller that Trump’s lawyers, and presumably Trump himself (unless his lawyers were on an unauthorized mission of their own, which seems most unlikely), were committing the felony of witness tampering,” constitutional lawyer Laurence H. Tribe tells me. “And the subject matter — what we were conceding to our Russian adversaries — went to the core of our national security. So it seems like a very big deal indeed.”

An op-ed by Cass Sunstein: It’s increasingly clear that Roe v. Wade, the U.S. Supreme Court decision protecting a woman’s right to choose abortion, is in jeopardy. But what is Roe all about? Privacy? Liberty? Women’s equality? Its survival may depend partly on the answer, so let’s go back to first principles. The Roe opinion, written by Justice Harry Blackmun in 1973, was entirely about privacy. As Blackmun put it, the right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” For two reasons, that’s awkward. First, the U.S. Constitution does not protect a general right of privacy at all. Second, any right of privacy, if it does exist, would not seem to encompass the right to choose abortion. Privacy usually refers to the right to control access to personal information.1 What does abortion have to do with that?

Here’s a quick thought experiment: What if the FDA operated more like the CIA That’s not a suggestion that the agency engage in eater surveillance or conduct covert drug-testing operations. Rather, it’s a question about the state of the agency’s political independence and how it can be protected in the face of partisan pressure. ...So why not make FDA an independent agency? Earlier this year, seven of America’s most recent FDA commissioners co-wrote a piece of commentary urging such a change in Health Affairs journal. Today, in a new article for Science magazine, a team of researchers considers the ways that doing so would benefit the FDA’s mission and protect consumers. ... “FDA regulates a huge percentage of our economy and makes a huge difference to people’s lives,” says I. Glenn Cohen, professor at Harvard Law School and co-author of the paper. In addition, ongoing changes to FDA leadership make the current moment an apt time to consider the agency’s independence. In March, FDA commissioner Scott Gottlieb resigned from his role, after a brief tenure where he advanced a surprising number of Obama-era food policies. Currently, the agency is overseen by acting commissioner Ned Sharpless.

This past week, Senator Kamala Harris and Joseph R. Biden Jr., two of the Democrats running for president, said it should be considered, joining another, Senator Elizabeth Warren, who has called for wider Big Tech breakups. And don’t forget that Chris Hughes, a Facebook co-founder, wrote this month that he wanted its split up, too. We could argue (at length) about the validity of the idea. But how plausible is it? The weapon of choice behind most of these calls is antitrust law. Fine. There’s plenty of potentially anticompetitive behavior to go after. But in terms of end results, a breakup is possible, but by no means certain, from such legal action, according to antitrust experts I spoke with. Einer Elhauge, a Harvard law professor who was chairman of the antitrust advisory committee to the Obama campaign in 2008, told me that splitting WhatsApp and Instagram from Facebook — the most popular proposal — was plausible but might depend on how deeply integrated they had become. “It’s hard to unscramble eggs,” he said. And Facebook’s push to intertwine the platforms more closely may make such unscrambling only harder.

An article by I. Glenn Cohen, Eli Y. Adashi and Rohit S. Rajan: For the better part of a century, the U.S. Food and Drug Administration (FDA) preserved public health by rigorously applying the scientific method. The central tenet of the Food, Drug, and Cosmetic Act of 1938 which created the FDA calls for “experts qualified by scientific training and experience to investigate the safety of drugs.” In recent times, however, partisan political interposition has grown increasingly worrisome. As the sole arbiter standing between a new drug application and a potential public health calamity, the FDA can hardly afford to be buffeted by undue political interference. In a recent salvo in this decades-long tug-of-war over politics and independence, seven former FDA commissioners, hailing from both sides of the political aisle and spanning many administrations, recently recommended that the “FDA should be an independent federal agency reporting to the President” (1, 2). It is against this backdrop that we explore the utility, desirability, and feasibility of restructuring the FDA charter with political insulation and administrative streamlining in mind. Amid uncertainty over leadership and direction at the FDA since the commissioner stepped down in April, it is a particularly critical time to reflect on how to enhance the independence of the FDA in keeping with its enabling statute.

An op-ed by Alex Whiting: The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has released for comment a draft of her Strategic Plan for the final years of her mandate, 2019-2021. Overall, the plan shows that the Office of the Prosecutor (OTP) is frankly seeking to confront and meet the many challenges that the Court has encountered over the last few years. The most significant change in policy is with respect to the types of cases the OTP will consider bringing. Without abandoning the goal of charging the highest-level perpetrators in a situation, the new draft policy fully embraces an approach of bringing cases that are more modest – either narrower in scope or against lower-level accused, namely mid-level commanders or notorious perpetrators – when it can. While this change may be controversial, it is the best path forward to strengthening the work of the Court.

In early April, the European Commission published guidelines intended to keep any artificial intelligence technology used on the EU’s 500 million citizens trustworthy. The bloc’s commissioner for digital economy and society, Bulgaria’s Mariya Gabriel, called them “a solid foundation based on EU values.” ...Harvard law professor Yochai Benkler warned in the journalNature this month that “industry has mobilized to shape the science, morality and laws of artificial intelligence.” Benkler cited Metzinger’s experience in that op-ed. He also joined other academics in criticizing a National Science Foundation program for research into “Fairness in Artificial Intelligence” that is co-funded by Amazon. The company will not participate in the peer review process that allocates the grants. But NSF documents say it can ask recipients to share updates on their work, and will retain a right to royalty-free license to any intellectual property developed.

The authors of Alabama's new law criminalizing abortion have left no doubt that they passed it to provoke the U.S. Supreme Court into overturning Roe v. Wade's protection of a woman's right to choose. But there's no guarantee that will happen.... Harvard Law School professor Laurence Tribe, one of the nation's leading constitutional experts, says overruling Roe and the follow-on case upholding it, Planned Parenthood v. Casey, "would upset much deeper and broader societal reliance interests" than those at issue in this week's case about suing the states. "So there is cause for concern," Tribe says, "but not panic."

Alabama Gov. Kay Ivey (R) approved a near-total abortion ban on Wednesday aimed at the United States Supreme Court and designed to overturn Roe v. Wade, the landmark 1973 decision establishing a woman’s right to an abortion under the U.S. Constitution. Roe v. Wade makes it clear that women have a right to abortion guaranteed by the 14th Amendment, but the Alabama measure almost universally prohibits abortions. Doctors who perform an abortion are to be subject to at least 10 and as many as 99 years in prison. The only exception in the legislation is if a pregnancy puts a woman’s life at risk. ...But Laurence Tribe, a law professor at Harvard, doubts the Supreme Court will even take the case if the 11th Circuit upholds a ruling from the district court blocking the law.  “This clumsy gambit will be a total flop,” he wrote in an email.

An op-ed by Cass Sunstein; Human beings really don’t like to be guinea pigs. Many people are inclined to rebel if they learn that they are in some kind of experiment. For private companies and for governments, that’s a big problem. Randomized experiments, often known as “A/B tests,” are the best way for private companies and public officials to learn what they should be doing if they want to save money and even lives.

The U.S.-China trade blowup was a long time coming. And it won't be easily resolved, not even if U.S. and Chinese negotiators reach a truce in the next few weeks that reassures jittery financial markets. Tensions between the world's two biggest economies intensified over the last week. The Trump administration more than doubled tariffs on $200 billion in Chinese imports and spelled out plans to target the $300 billion worth that aren't already facing 25% taxes. The escalation covers everything from sneakers to toasters to billiard balls. ...Critics now say the Geneva-based WTO, which sets trade rules and mediates disputes, was ill-equipped to handle China's unorthodox blend of capitalism and state control. In the Chinese system, it is tough to tell whether a company is seeking profits in the conventional way or is acting with the support and on behalf of the government to achieve China's strategic goals. The U.S., for example, says that the telecommunications equipment supplied by China's Huawei can be used to spy on foreign countries. "China's economy is fundamentally different— even unique," Mark Wu of Harvard Law School wrote in an influential 2016 paper. "The WTO rules, as written, are not fully equipped to handle the range of economic problems associated with China's rise."

Current and former attorneys general from both major parties and several states are imploring Iowa's Republican governor to veto a measure meant to prevent the state's attorney general, currently a Democrat, from being able to file or join lawsuits challenging Trump administration policies. Iowa would be the only state with such limits on the power of an independently elected attorney general if Gov. Kim Reynolds signs off on the bill, which would require the attorney general to get the permission of the governor, Legislature or state executive council, which includes the governor and other statewide elected officials, to file any out-of-state court action. "There is no question that Iowa would be the only state that has done this to itself, and that the only losers are the people of Iowa," said Jim Tierney, a Harvard Law School lecturer who served as Maine attorney general from 1980 to 1990.

An op-ed by Michael Banerjee: On March 25, Wende Kerl, a white police officer, shot and killed Danquirs Franklin, a black civilian, in the parking lot of a Burger King in west Charlotte.  Kerl ordered Franklin to drop his gun, and killed Franklin when he attempted to do just that, based on body camera footage reluctantly released by the Charlotte-Mecklenburg Police Department. This killing by police—one of hundreds that have taken place across the country in 2019 alone—was wholly avoidable, and is part of a sordid history of police violence against black people in the U.S. Why is it that police officers get to decide who lives and who dies in Charlotte and elsewhere? Why is it legal for police officers to kill just about anyone they choose? To begin to answer these questions, we must travel back in time exactly 30 years, to May 15, 1989, when the U.S. Supreme Court handed down its decision in Graham v. Connor.  However, in order to understand that decision, we must first go back to Nov. 12, 1984 to a house on Mayfair Avenue in Charlotte, not more than a 10-minute drive from the Burger King at which Kerl took Franklin’s life.

President Trump is using the Justice Department in unprecedented, partisan ways and asserting ludicrously aggressive and unprecedented claims of executive power. The question is whether — in some cases, at least — the courts will stop him. ... “Consovoy’s arguments on behalf of Trump, seeking to block private entities from turning over documents and information needed by Congress to perform its Article I functions, are so preposterous that Judge Mehta had no choice but to resist them,” constitutional scholar Laurence Tribe told me. “For the district court to accept those arguments would be astonishing — an unthinkable loss for the separation of powers. For the district court to reject those Trump arguments, as I expect it to do, will be an unsurprising win — a big victory but too predictable to count as a game-changer.” By making an argument that virtually writes Congress out of the equation, Trump’s lawyers may have set him up for a rude awakening on the subject of separation of powers. As Tribe put it, “It’ll be a self-inflicted wound suffered by Team Trump.”

Executives of America’s large public companies have long played a role in public policy by advising leaders of both parties — but those corporate chieftains themselves are far more likely to be Republicans than Democrats, a new study shows. In a working paper released this month by the National Bureau of Economic Research, researchers at Harvard Law School and Tel Aviv University ran the names of all individuals to have run a company listed in the S&P 1500 between 2000 and 2017 through federal campaign finance databases, which include contributions to both congressional and presidential candidates as well as party committees. The result: 18.6% of CEOs consistently donated to Democrats, while 57.7% donated to Republicans, with the rest leaning toward neither party.

An op-ed by Randall Kennedy: I have been a professor at Harvard University for 34 years. In that time, the school has made some mistakes. But it has never so thoroughly embarrassed itself as it did this past weekend. At the center of the controversy is Ronald Sullivan, a law professor who ran afoul of student activists enraged that he was willing to represent Harvey Weinstein. Mr. Sullivan is my friend and colleague. He is the director of the Criminal Justice Institute at Harvard Law School and the architect of a conviction-review program in Brooklyn that has freed a score of improperly convicted individuals. He is also a sought-after lawyer who has represented plaintiffs (including the family of Michael Brown, whose death at the hands of a police officer fueled the Black Lives Matter movement) as well as defendants (including Rose McGowan, the actress who faced drug charges and is, ironically, one of Mr. Weinstein’s accusers).

A key utility industry advocacy group represented by Hunton Andrews Kurth LLP has disbanded in the face of Congressional scrutiny over the identity of its members, and similar groups that rely on anonymity are getting pressure from some courts about whether they have standing to fight energy and environmental regulatory actions. The Utility Air Regulatory Group — which for four decades lobbied and litigated on federal air pollution issues on behalf of utility companies who largely kept their names under wraps — disbanded on Friday. It is one of scores of similar ad hoc groups — with opaque membership rolls unlike traditional trade associations — that have played leading roles in challenging federal energy and environmental rules. ...“Judge Pillard’s apparent invocation of the kind of tougher Article III standards often promoted by business interests to seek to persuade courts to deny environmentalists Article III standing is, to say the least, ironic,” Harvard Law School environmental law professor Richard Lazarus said. “If Judge Pillard’s suggestion at argument ends up having judicial legs, it may well prompt a healthy reform of the practice of organizations like UARG that for too long have declined to reveal their members.”