Media Mentions

The Post reports: Attorney General William P. Barr said Wednesday he thought “spying” on a political campaign occurred in the course of intelligence agencies’ investigations into Russian interference in the 2016 election — a startling assertion by the nation’s top law enforcement official. ... This is the language of a PR spinner, not the attorney general of the United States. As my colleague Aaron Blakepoints out, “spying” is a loaded phrase and a political accusation. ... Constitutional lawyer Laurence H. Tribe tells me, “Attorney General Barr is surely among the ‘civil Officers of the United States’ subject to removal pursuant to the impeachment clause, Art. II, §4, and I don’t doubt based on his March 24 letter, his subsequent shifting and shifty pronouncements, and his disgraceful testimony yesterday and today (including his wild and unsubstantiated accusations against the Obama Justice Department) that, whatever highly redacted document he releases as Mueller’s report next week, Barr has been gravely abusing the powers of his office, possibly (although not, in my view, certainly) to the degree of committing ‘high Crimes and Misdemeanors.’”

An op-ed by Cass Sunstein: After winning the presidential election, the White House finds itself under criminal investigation. It cries “witch hunt.” It attacks the Justice Department as “partisan.” It tries to discredit the “lying” press.” It refers to federal prosecutors as “liberal Democrats” and as “biased.” What is the attorney general to do? The question was posed in 1973, when Richard Nixon’s vice president, Spiro T. Agnew, was under federal investigation for corruption. Agnew was alleged to have accepted hundreds of thousands of dollars in kickbacks and bribes when serving as country executive, governor and vice president. Nixon, Agnew and other White House officials tried to terminate the investigation – even more fiercely, to discredit it. Everything depended on the choices of Nixon’s new attorney general, Elliot Richardson.

An op-ed by Noah Feldman: It’s hard to think of a more unlikely human rights hero than Kirstjen Nielsen, the outgoing secretary of homeland security. But if CNN’s reporting is accurate, Nielsen actually did sacrifice her job for the legal rights of asylum seekers when President Donald Trump instructed her to deny entry to immigrants who are protected by international refugee law. Nielsen also reportedly has spent the last several months resisting Trump’s pressure to separate families at the Mexican border, a policy that has been blocked by several courts while litigation against it continues.

Regulations preventing nonlawyers from holding equity in a law firm are just one piece of an outdated culture holding law firms back, and the market won’t wait for them to come around, two law professors warned a conference of legal industry marketers on Tuesday. Nonlawyers—or “allied professionals” in the speakers’ preferred language—within law firms are increasingly vital to the successful operations of the firm, according to Bill Henderson, a professor at Indiana University Maurer School of Law, and Scott Westfahl, professor of practice and faculty director at Harvard Law. ABA Model Rule 5.4, which prohibits non-lawyer ownership in a firm, has held these professionals back from full participation and investment in the organization—often to the firms’ detriment, the professors said. According to Westfahl, there was little basis for the logic behind the regulation — namely, that non-lawyer owners would put the commercial interests of the firm over those of the clients.

President Donald Trump had high praise for the nation’s attorneys general when he invited them to the State Dining room in March. “You are very special people and doing a very special and important job,” Trump told the gathering. Increasingly, however, their job is suing Trump. ... But it’s the partisan lawsuits against presidential administrations that are the biggest departure from the past. One reason, says former Maine Attorney General James Tierney, stems from a 2007 Supreme Court decision siding with Massachusetts and 11 other states against the EPA. The states successfully argued that the EPA is required to regulate greenhouse gases as pollutants.

Two law professors and a former law school dean have offered their public support to an Emory law professor suspended over the use of a racial slur. Affidavits from Harvard University’s Randall Kennedy, Princeton’s Keith Whittington, and Talbot “Sandy” D’Alemberte, the former president of Florida State University where he also served as the law school’s dean, were included in formal complaints calling for Emory’s censure. ... Kennedy—a former law clerk for U.S. Supreme Court Justice Thurgood Marshall and the author of a book on the use of the slur as a “linguistic weapon”—said Zwier’s use of the word “was neither careless nor malicious.”

Legal and political battles have put the fate of the Affordable Care Act, and health care for millions of Americans, back into the spotlight and ensure that that it will play a pivotal role in the 2020 elections. ... Robert Greenwald, JD, faculty director of the Center for Health Law and Policy Innovation at Harvard Law School, concurred with Goodwin on the consequences of the ACA repeal. “If the lower court’s decision is affirmed, it would topple the entire ACA, including provisions entirely unrelated to the individual mandate such as the expansion of the Medicaid program. This would do untold damage to our health care system. It would leave over 20 million additional people uninsured,” he said in an interview.

On Aug. 29, 1991, William Barr had a decision to make. Cuban inmates had seized hostages inside an Alabama prison in a bid to avoid deportation, and now they were threatening to kill them. Only 19 days into his job as acting attorney general, Barr ordered the FBI to mount a rescue mission. ... Barr, now 68, is “not afraid to make decisions that fall into his areas of responsibility,” said George Terwilliger, who served as Barr’s deputy during his first stint as attorney general under President George H.W. Bush. ... “It is like fundamentally rigging the game before we know what the actual score is,” said Harvard Law School professor Laurence Tribe, who worked with Barr on a telecommunications case in the 1990s. “His integrity, his history, his reputation is shattered by what he has done. I have no idea what could have motivated him.”

With the Monday Morning Massacre at the Department of Homeland Security, President Trump has created one more “acting” Cabinet secretary, left open a number of high-level posts and created further chaos at the agency charged with securing the border. One would think someone would point out to him how counterproductive is his purge. ... First, as a constitutional matter. Trump is effectively diminishing the role of the Senate in its advice and consent role. Constitutional scholar Larry Tribe says he is worried about “a president who cares more about being able to bully his Cabinet members than about having Cabinet members with the Senate-backed clout to get anything done.” He adds, “It’s a symptom of Trump’s obsession with the appearance of power and his indifference to the policies that power can potentially implement.”

An op-ed by Nancy Gertner: Just when it seemed everyone was open to new ideas about criminal justice, after last year’s reform bill, Thomas Turco, the state secretary of public safety and security, rehashed old tropes, and worse, old politics in blasting Suffolk District Attorney Rachael Rollins’s prosecution plans. Turco’s broadside was released to the press without notice to the new DA; Rollins’s reply was swift, attacking Governor Charlie Baker for authorizing it. The reported rapprochement between the two officials, while admirable, shouldn’t obscure some of the larger issues the dust-up reveals. Turco criticized Rollins’s “decline to prosecute” list, ignoring crucial details in her 65-page plan. A Suffolk prosecutor was obliged to decline or divert certain offenses unless he or she got permission from a more experienced supervisor. (Turco ignored the “unless” clause.) The list consists of nonviolent crimes involving drugs, property, and offenses like driving with a suspended license, and it makes sense.

An op-ed by Laurence Tribe and Philip Allen Lacovara: The uncertain prospect that the House Judiciary Committee will receive the raw, unredacted report generated by special counsel Robert S. Mueller III got even less certain Friday. A decision by the federal court of appeals in Washington now confronts the House leadership and Attorney General William P. Barr with some difficult political choices. In a 2-to-1 decision in McKeever v. Barr, the court reaffirmed the principle of grand jury secrecy and concluded that a court has no “inherent power” to release grand jury information. This decision will give Barr a plausible basis to resist the Judiciary Committee’s subpoena of the entire Mueller report, even if the committee goes to court to enforce it. But both the House and the attorney general have ways to cope with this obstacle, if they have the political will and the professional judgment to do so.

Lyft shareholders could come to regret giving up substantial power to CEO Logan Green and President Josh Zimmer, the company's cofounders. Lyft shares closed at $74.55 on Friday, nearly $4 below its first trade when the company went public on March 29. While the stock has seen a slight recovery from its all-time-low of $66 in its first week of trading, Wall Street isn't quite certain on how to treat the stock in the long-term. In a post published Wednesday, Harvard Law School's Lucian Bebchuk and Kobi Kastiel argue that Lyft's corporate governance structure "can be expected" to decrease Lyft's per-share value in the future, and increase the discount at which Lyft's low-voting shares trade. "Each of these effects would operate over time to reduce the market price at which the low-voting shares of public investors would trade," wrote Bebchuk and Kastiel. "These effects should thus be taken into account by any public investors that consider holding Lyft shares."

The Education Department failed to approve a single application for federal student loan relief in the second half of last year, according to new department data that signals that students who claim they were cheated by their colleges cannot count on help from Washington anytime soon. ... Eileen Connor, the director of litigation at Harvard Law School’s Project on Predatory Student Lending, said that she had borrowers who had claims pending from as far back as four years. The project, which represents thousands of students from ITT Tech and Corinthian, said that it had over 14,000 applications from ITT Tech pending at the department. Only 33 have been approved, and those were by the Obama administration. Zero have been approved under Ms. DeVos. Debt on the loans has continued to grow, Ms. Connor said. In lawsuits, the group has described how borrowers have experienced anxiety, fear and psychological and financial distress caused by delays.

The internet is an ethereal concept. The language we use to describe it contributes to that etherealness: we speak of servers being in "the cloud," as though they were weightless in heaven, and most if not all of our internet access happens wirelessly. ... Susan Crawford, the author of “Fiber: The Coming Tech Revolution—And Why America Might Miss It,” has spent years studying the business of these underground fiber optic cables that make fast internet possible. As it turns out, the internet infrastructure situation in the United States is almost hopelessly compromised by the oligopolistic telecom industry, which, due to lack of competition and deregulation, is hesitant to invest in their aging infrastructure. “That would never happen," Crawford told me. "We saw that with electricity. We’ve seen it with internet access in America already.” This is going to pose a huge problem for the future, Crawford warns, noting that politicians as well as the telecom industry are largely inept when it comes to prepping us for a well-connected future. I spoke with Crawford via phone about her new book and the myriad problems with internet infrastructure in the US. This interview has been edited for clarity.

In medical school, we learned about the ghastly effects of severe protein-calorie malnutrition. But we thought that conditions such as kwashiorkor and marasmus were mainly of historical significance, the scourges of long-ago wars and prison camps. We did not expect to witness them in our lifetimes. Yet today, severe malnutrition is engulfing Venezuela, with catastrophic consequences for the country’s people and its future generations. ...Second, an investigation by the ICC, which 122 countries have joined, would send a clear message about the enforceability of norms through international law. Although public-health claims have not yet been used as a basis for international criminal charges, some experts believe that they could be. According to Alex Whiting, a Harvard Law School professor and former Prosecutions Coordinator at the ICC, “when certain regimes adopt extreme policies that strangle their own populations, we have to consider (and investigate) whether it meets the threshold of international criminality.”

By signing an executive order, Gov. Gavin Newsom of California recently ended the threat of execution as long as he is in office for the 737 inmates on the state’s death row, the largest in the Western Hemisphere. ... One study has shown that capital punishment has cost California $5 billion since the 1970s. Another study, by Ernest Goss, an economics professor at Creighton University, found that each death penalty prosecution in Nebraska cost $1.5 million more than when prosecutors sought life without parole. Those more complex realities do not negate the potential for contentious politics in 2020. “I think the Democratic primaries may be the first one in which candidates outflank one another on the left on criminal justice issues,” said Carol S. Steiker, an expert on the death penalty at Harvard Law School.

The Education Department failed to approve a single application for federal student loan relief in the second half of last year, according to new department data signaling that students cheated by their colleges cannot count on help from Washington anytime soon. ... Eileen Connor, the director of litigation at Harvard Law School’s Project on Predatory Student Lending, said that she has borrowers who have claims pending from as far back as four years. The Project, which represents thousands of students from ITT Tech and Corinthian, said that it has more than 14,000 applications from ITT Tech pending at the department. Only 33 have been approved, and those were by the Obama administration. Zero have been approved under DeVos. Debt on the loans has continued to grow, Connor said. In lawsuits, the group has described how borrowers have experienced anxiety, fear and psychological and financial distress caused by delays. The project has won several lawsuits against DeVos. But it said that the department continued to ignore crucial court rulings, including one that found the department could not take tax refunds of former Corinthian College students to pay their student loans while they have borrower defense applications pending. “The department’s delay is not neutral,” Connor said. “It’s harming students.”

Americans have the longest, most expensive and arguably most complex system of electing a head of state in the world. After all the debates, caucuses, primaries and conventions, the person who gets the most votes can still lose -- as happened most recently in 2016, when Republican Donald Trump won the White House. It’s a system that baffles non-Americans and some Americans as well, and it’s again spurring talk of change. Several Democratic presidential contenders including Senator Elizabeth Warren have called for letting voters pick their leader directly. ...Warren is among several Democratic senators who have proposed amending the Constitution to do away with the Electoral College. A nonprofit group founded by Harvard Law School Professor Lawrence Lessig has filed lawsuits in several states seeking to divide electoral votes according the share of the popular vote, instead of as winner-take-all.

An op-ed by Randall Kennedy: News reports suggest that an effort by the Cambridge School Committee to display racial enlightenment has turned into a racially discriminatory act of political repression. In January, a teacher at the Cambridge Rindge and Latin High School, Kevin Dua, sponsored a research project titled “RECLAIMING: Nigger v. Cracker: Educating Racial Context In/for Cambridge.” The project sought to explore the history and effects of racial slurs. Dua invited members of the committee to attend a discussion of the project in part because he wanted them to address an issue that surfaced when the students pursued their research: School computers blocked access to websites containing the n-word and other racial and ethnic slurs. One member of the committee who attended, Emily Dexter, listened to the presentation, participated, and volunteered to assist the students in negotiating the problem of the computer filters. So far so good. The situation presented a positive instance of public high school education: an exercise aimed at sparking curiosity about an important, albeit controversial, subject in the context of an academic setting in which students, instructors, and others could engage, hopefully, in a memorable, fascinating, edifying exchange of information and views. But then things went awry.

In a recent Q&A, Professor of Practice Samantha Power, former U.S. ambassador to the United Nations and author of the Pulitzer-prize winning 'A Problem from Hell: America and the Age of Genocide,' reflects on the tragedy in Rwanda and the lessons learned—and not learned—since.

This small town in Denmark is getting a skyscraper, and it's not the only rural town with a tower. Maybe it's not such a good idea to get rid of transit drivers after all. Street grids are great, but sometimes you need an architechtural escape....This week on the podcast, Harvard Law Professor Susan Crawford talks about her new book Fiber about fiberoptic cables.