Media Mentions

The grisly news that the North Korean leader Kim Jong Un allegedly executed his envoy for nuclear talks with the United States didn’t come as a total surprise. Rumors have swirled for weeks that Kim purged his negotiating team over the collapse of his second summit with President Donald Trump in February...Here was the ruthless totalitarian whom the American president has professed to admire and trust (“We fell in love”) and whose latest missile tests Trump has doggedly downplayed, despite the concerns of his allies in Asia and his own advisers (Kim “knows that I am with him & does not want to break his promise to me. Deal will happen!”). Just last week, Trump gleefully applauded Kim for calling former U.S. Vice President Joe Biden “a low IQ individual.”...When I asked William Ury, a co-author of the business-negotiation bible Getting to Yes, about Trump’s perplexing praise for Kim, he told me that he saw a clear method to the president’s seeming madness—one that he felt was deliberate because Trump has exhibited a pattern of behavior, even amid overwhelming criticism.Trump appears to be operating with the philosophy “The cheapest concession you can make in a negotiation is to give the other fellow a little respect,” which buys you a counterpart willing to hear you out and maybe even work with you, said Ury, who is also a co-founder of Harvard Law School’s Program on Negotiation. “I’ve found that to be true over 40 years of being in this field, whether you’re talking family, business, or high-stakes nuclear showdowns.”

Imagine you need a divorce, but you've heard it costs a fortune to hire an attorney. Money's already tight as it is, now that you've separated from your partner, so you decide to represent yourself in court. There's no kids and not much property after a short marriage that both of you want to end.  How much of a difference would a lawyer make anyway? The answer is "too much," according to a November 2018 study by Harvard Law School's Access to Justice Lab. Titled "Trapped in Marriage," the three-year study found that when a legal aid group directed low income divorce-seekers in Philadelphia County to use self-help materials, just 5% managed to end their marriages, unless they ended up with legal counsel or their spouse initiated the suit. Those offered volunteer pro bono lawyers were five times more likely to get divorced in the same time frame. Jim Greiner, a Harvard Law professor and co-author of "Trapped in Marriage," said the vast disparity can't be explained by those who claim divorces that may seem simple are actually complex due to child custody, support and alimony issues. "This was basically a bunch of very severely poor people who didn't have much in the way of property or assets to fight about," he said.

A book review by Samuel Moyn: Whenever I need to drive somewhere, I use Waze. The app saves me a lot of trouble, because it aggregates information to which I have no access and even plans how to distribute the traffic rationally to avoid clogging the roads. It has a lot of pop-up ads, but I try to ignore them because they seem a minor annoyance...But whatever its drawbacks, Waze marks a triumph for “navigability,” the ungainly term that Cass Sunstein uses in his new book, On Freedom, to describe how easy or difficult it is to get from here to there and, in the metaphorical sense, to achieve a goal once you’ve set one for yourself. For Sunstein, government ought to be more like Waze, helping people fulfill their desires and dreams, especially when they themselves are blocking that fulfillment. But any inquiry into navigability is inseparable from a much bigger theory of where our desires come from and how society fits them together not just with others’ but also into a common scheme of life. For too long, liberals have abstained from inquiring into what people want and have ignored how most obstructions come from neither the state nor the self but from a deregulated market and an unreformed society in which oppression is the rule.

The 21 children and young adults suing the federal government over climate change argue that they and their generation are already suffering the consequences of climate change, from worsening allergies and asthma to the health risks and stress that come with hurricanes, wildfires and sea level rise threatening their homes. As their case heads back to court this week, some of the heaviest hitters in the public health arena—including 15 major health organization and two former U.S. surgeons general—are publicly backing them up..."There's a really robust body of scientific literature that supports each of these different kinds of health impacts that are already being observed and are projected to get worse and worse," said Shaun Goho, deputy director of the Emmett Environmental Law & Policy Clinic at Harvard Law School and one of the attorneys who filed the amicus brief."The Juliana generation is going to feel and suffer from those impacts in a way that's really different and more extreme than what any previous generation has felt," Goho said.

Criminal prosecution exacts punishment; impeachment upholds the Constitution and prevents further assaults on it. Many Americans, but far from a majority, think President Trump has committed impeachable acts but are wary of impeaching without hope of removal. However, if there is an indication that severe damage to the Constitution will occur unless Trump is removed, the House must act, and then engage public opinion to pressure the Senate. ... Constitutional scholar Laurence Tribe tells me, “Even if the district court’s order to release the Flynn-Kislyak transcripts goes further than justified by the sentencing matter before the court, I would’ve thought that, in a government of laws, the only way to avoid compliance is to take an appeal to a higher court.” The government made its arguments to the court, did not obtain a stay to our knowledge and did not seek an emergency appeal. From all appearances, the Trump administration has deliberately and willfully defied a court order.

An oped by Noah Feldman: When the government takes your property, the Constitution entitles you to “just compensation.” But should the value of your property be computed based on market value, which would normally incorporate predictions about future government action? Or should the value of your property be determined without any reference to what the government might do — including take your property?

The Jewish festival of Purim was in full swing: Music was blasting, family and friends were bouncing to the beat, and 6-foot-3 Cory Booker was laughing and dancing while carrying a 5-foot-6 Orthodox rabbi in a clown suit on his back. ... “Within about five minutes of meeting Cory, I went over to someone and said, ‘Let me introduce you to the guy who is going to be the first black president of the United States,’ ” said Noah Feldman, now a Harvard Law School professor.

BlackRock Inc. (BLK), Vanguard, and State Street Global Advisors, a division of State Street Corporation (STT), were the subject of a May 2019 treatise from Harvard’s John M. Olin Center for Law, Economics, and Business. The report, entitled “The Specter of the Giant Three,” asserts that corporate voting will be dominated by the “the big three,” given that index funds are expected to continue to grow at a rapid pace. Report writers Lucian A. Bebchuk and Scott Hirst “document that the Big Three have almost quadrupled their collective ownership stake in S&P 500 companies over the past two decades.” More importantly, “they have captured the overwhelming majority of the inflows into the asset management industry over the past decade.”

An op-ed by Cass Sunstein: Parody and satire are a legitimate part of public debate. Doctored videos are all over the place. Some are funny. Some are meant to make a point. Arguments of this kind are being made to support Facebook’s decision not to take down the doctored video of House Speaker Nancy Pelosi, in which she was made to appear drunk or otherwise impaired. One version, posted on the Facebook page Politics WatchDog, was seen over two million times in just a few days. There is no question that many viewers thought that the video was real. Acknowledging that it was fake, Facebook said, “We don’t have a policy that stipulates that the information you post on Facebook must be true.”

An op-ed by Noah Feldman: The sphinx finally spoke: But much like his ancient predecessor, special counsel Robert Mueller didn’t resolve any mysteries. At his surprise news conference Wednesday to announce his retirement, Mueller essentially repeated what he had written in his report. He didn’t take questions. He said he didn’t plan to say anything more in public. And he warned Congress that if called to testify, he wouldn’t say anything beyond what was in the report — which he called “my testimony.”

Attorney General William P. Barr and the Trump White House banked on precisely the sloth we saw after release of the report from special counsel Robert S. Mueller III. They correctly anticipated that the public wouldn’t read it, that cable-news coverage would be superficial at best (and at worst misleading), and that President Trump’s cult would take on faith whatever he said either was or wasn’t in the report. The headlines and screen crawlers announcing “Mueller couldn’t indict!” and “Mueller says it’s up to Congress!” — who knew!? — suggest they were right. ... In an email, constitutional scholar Laurence H. Tribe told me, “Expressed in plain English, Mueller said: ‘READ MY REPORT. It says I COULDN’T indict a sitting president. If my office could’ve concluded he was innocent of criminal conduct, we would’ve said so. We couldn’t so we didn’t. Only Congress can hold this sitting president accountable. The ball is in Congress’s court now.’”

If a Supreme Court vacancy opens up during next year’s election cycle, Senate Majority Leader Mitch McConnell (R-Ky.) said he would take a markedly different approach than he did in 2016. “Oh, we’d fill it,” McConnell said on Tuesday at a lunch talk in Paducah, Kentucky, that was streamed online by WPSD. CNN first called attention to the remarks. In 2016, within hours of Justice Antonin Scalia’s death, McConnell issued a statement saying that “this vacancy should not be filled until we have a new president.” McConnell went on to successfully block President Barack Obama’s Supreme Court nominee Merrick Garland from receiving a hearing. ... “The stakes are enormous because if you replace Scalia with an Obama appointee, then you probably have five justices on the court that are going to move the court in a much more progressive direction,” Jack Goldsmith, U.S. assistant attorney general during the George W. Bush administration, told FRONTLINE.

Artificial intelligence coupled with satellite imagery could soon deliver plaintiffs in climate litigation real-time data on carbon dioxide emissions from power plants around the world. It potentially opens a new front in holding the energy industry accountable for the impacts of those emissions on the climate. ... Shaun Goho, deputy director of the Emmett Environmental Law and Policy Clinic at Harvard Law School said the technology could make it easier for plaintiffs to establish that power plants are violating their permit limits. It would depend on whether judges accept its results as reliable, he said. “I am sure that defendants would contest it at first, but if courts start to accept the data from this technology, then it could lighten the information-gathering burden on plaintiffs,” Goho said.

This year's Harvard Law School Class Day had many firsts: Roberta “Robbie” Kaplan ’88 was the first openly gay person to speak at the occasion, addressing the school’s first majority-woman graduating class, whose members had performed a record-breaking 390,095 hours of pro bono work. ... Former president Bill Clinton has called Kaplan a “true American hero” for her role in the case, and Loeb University Professor Laurence Tribe, a leading constitutional-law scholar, has said that he cannot “think of any Supreme Court decision in history that has ever created so rapid and broad a lower-court groundswell in a single direction as Windsor.”Windsor in turn laid the groundwork for the 2015 case Obergefell v. Hodges, which established marriage equality nationwide.

An op-ed by Noah Feldman:  Abortion rights aren’t appreciably more in danger after Tuesday’s U.S. Supreme Court ruling on two Indiana laws than they were before. But it’s clear that the drums are beating — and judicial war over abortion is coming, like it or not. The court upheld an Indiana law that says fetal remains can’t be “incinerated” with other medical waste but may be simultaneously “cremated.” Seven of the nine justices agreed with this judgment, signaling that the court’s liberals (except Justice Ruth Bader Ginsburg) didn’t want a fight over the law. Avoidance was made easier by the fact that abortion-rights activists did not claim the law unduly burdened a woman’s right to choose. At the same time, the Supreme Court refused to reconsider a court of appeals decision that struck down Indiana’s law banning abortion providers from knowingly aborting a fetus for reasons of its race, sex or disability. That means the law will never take effect, and selective abortions will remain legal in Indiana.  

A book review by Noah Feldman; This year is a propitious time for Stephen Budiansky’s new biography of Justice Oliver Wendell Holmes Jr. Exactly a century ago, dissenting in the case of Abrams v. United States, Holmes invented the metaphor of the marketplace of ideas, single-handedly laying the groundwork for the modern constitutional protection of freedom of speech. A year later, writing for the Supreme Court’s majority in Missouri v. Holland, Holmes inaugurated the metaphor of the living Constitution. Such a constitution should properly be interpreted “in the light of our whole experience, and not merely in that of what was said a hundred years ago.” Not bad for a man who was already 78 years old in 1919 — and who had been three times wounded in the Civil War, escaping an early death by just inches. When Holmes wrote in the Missouri case that it had cost the framers’ successors “much sweat and blood to prove that they created a nation,” it was his own blood and that of his closest friends that he had in mind.

Kenya’s High Court on Friday upheld laws that criminalize gay sex, declining to join the handful of nations that have recently abolished a prohibition imposed by Britain during the colonial era. ...“A sad day for the rule of law and human rights,” said [HLS S.J.D. candidate] Eric Gitari, a co-founder of the National Gay and Lesbian Human Rights Commission, a Kenyan civil rights group, who was one of the petitioners in the case. He said he and others would appeal the ruling.

Kenya's High Court has chosen to uphold colonial-era laws that criminalize gay sex, dashing the hopes of activists who believed the judges would overturn sections of the penal code as unconstitutional and inspire a sea change across the continent. ... The case stems from to a petition filed in 2016 by activist Eric Gitari [HLS S.J.D. candidate], with the support of organizations serving LGBTQ Kenyans. They argued that two sections of Kenya's penal code violated people's rights: Article 162 penalizes "carnal knowledge ... against the order of nature" with up to 14 years in prison, and Article 165 castigates "indecent practices between males" with the possibility of five years' imprisonment. The judge in that case concluded Gitari's concerns were "weighty and require debate," sending it to a bench of judges.

An op-ed co-written by David J. Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, and Monica Cannon-Grant, founder and director of Violence in Boston: Boston Mayor Marty Walsh recently submitted his proposed fiscal 2020 operating and capital budget to the Boston City Council. From April 22 to May 21, the City Council held hearing after hearing on specific line items and proposed capital improvements. In all of this deliberation, there was one glaring omission: no hearing, and not a single line-item, on violence prevention. As temperatures rise and city officials hold forth about plans to combat an anticipated increase in violence, the city lacks any comprehensive plan for violence prevention.

The United States' largest interstate electricity market will soon hold a multibillion-dollar auction to determine which power plants will supply it in the years to come. But more than six months after FERC tossed out the rules PJM had planned for the capacity market over the fairness of nuclear subsidies, federal regulators have yet to approve a rewrite — leaving some power players on edge ... Others are less concerned FERC will alter the results of the auction even if it proceeds under the invalidated rules. Ari Peskoe, director of the Harvard Electricity Law Initiative, said the commission typically avoids issuing refunds in wholesale power markets and is unlikely to order the auction be re-run. The most probable conclusion, he said, is that PJM runs its auction under invalidated rules this year, and then FERC approves new rules PJM proposed last year ahead of next year's auction.

An op-ed by Cass Sunstein: Andrew Wheeler, administrator of the Environmental Protection Agency, recently released an important memorandum that makes terrific sense. In principle, it should improve the EPA’s performance -- and receive bipartisan applause. In practice? Well, that might be another story. The background is provided by two Supreme Court decisions. In 2009, the court ruled that whenever a congressional enactment is ambiguous, the EPA has the authority to consider the costs of its regulations and to weigh them against the benefits.