Media Mentions

Huawei’s lawsuit against the United States government could end up lifting the air of “mystery” surrounding the Chinese telecommunications equipment manufacturer should details of its ownership structure and relationship with the Chinese government be revealed, according to a leading Chinese law professor. The US Congress has banned federal agencies from using Huawei equipment due to national security concerns, but the Shenzhen-based firm argues the ban is unconstitutional as it singles out a person or a group for punishment without trial. ...“Huawei’s case will turn on whether the court thinks the NDAA is a punishment or a prophylactic qualification,” said Nikolas Bowie, an assistant professor at Harvard Law School. “On one hand, this is a classic example of punishment. Members of Congress said they were giving Huawei the corporate death penalty because of fears of what Huawei has done in the past and might do in the future. “On the other hand, the NDAA can be interpreted as a prophylactic qualification – a regulation – rather than a punishment. Congress certainly has the power to decide that certain types of business are so dangerous to national security that they’re prohibited from working with the government.”

An op-ed by Alex Whiting, Ryan Goodman and Nancy Gertner: In public remarks last month, Deputy Attorney General Rod J. Rosenstein hinted about the fate of special counsel Robert S. Mueller III’s report on the results of the investigation into Russian interference in the 2016 presidential campaign. While not speaking about any particular case, Rosenstein reiterated the department’s policy of not publicly commenting on the evidence in cases where charges are not brought. This might affect the report’s release, as Mueller is expected to abide by the Justice Department’s policy that a sitting president cannot be indicted. Rosenstein described his message he has given to prosecutors and agents during his tenure: “If we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.” Attorney General William P. Barr’s message at his confirmation hearing in January was much the same: “If you’re not going to indict someone, you don’t stand up there and unload negative information about the person.” The policy reflects a basic norm within the Justice Department. Then-FBI director James B. Comey was widely condemned, including by the department’s inspector general, for violating it during the 2016 presidential campaign when he publicly criticized Hillary Clinton’s conduct regarding the use of a private email server while secretary of state, even as Comey announced that the FBI had not found sufficient evidence to recommend criminal charges. Yet a closer look at the department’s policy suggests that Rosenstein’s approach might not apply to the Mueller report.

An op-ed by Cass Sunstein: Many advocates of a Green New Deal insist that air pollution and racial justice are related and must be addressed simultaneously. In 2018, they point out, researchers from the Environmental Protection Agency concluded that black Americans suffer disproportionately from exposure to emissions.  More recent research does not merely provide fresh details about the relationship between environmental degradation and racial justice. It adds disturbing new findings about apparent inequities across racial lines. In brief: African-Americans and Hispanics are subject to far more air pollution than they cause by their consumption choices. By contrast, white people are subject to far less air pollution than they cause by their consumption choices.

An op-ed by Noah Feldman: With elections looming, Israel is locked in a constitutional struggle for its democratic soul. The latest development: Israel’s high court, in a decision reversing the nation’s elections commission, has banned the leader of a Jewish-supremacist far-right party for running for Knesset while allowing a left-wing Arab party that calls for Palestinian equality and challenges the Jewish nature of the state. The decision matters because of a change to Israel’s unwritten constitution. In 2018, the Knesset enacted a controversial new “basic law” — the closest thing to a constitutional amendment the country has — on the topic of Israel as a nation-state. The basic law declared self-determination to be the right of Israel’s Jews, but not of other Israelis.

Rep. Devin Nunes (R-CA) is suing Twitter. More specifically, Nunes is suing Twitter, a Republican strategist, and two parody Twitter accounts, one purporting to be Nunes’s mother, the other purporting to be Nunes’s cow. (The account is @Devincow). First reported by Fox News, the complaint seems to be part of a plan almost destined to backfire spectacularly in the public eye: one of the more combative and well-known figures in Congress (particularly for his defenses of President Donald Trump) deciding to sue a notoriously free-wheeling social media platform, two parody Twitter accounts, and a Republican operative who uses it frequently for $250 million over tweets like these. ... But the question isn’t necessarily “Is Nunes’s lawsuit shambolic,” but “What does Nunes hope to achieve with his shambolic lawsuit?” So I spoke with Mark Tushnet, a First Amendment professor at Harvard Law School. After going through the complaint, Tushnet said that Nunes’s only real legal claim against Mair is for libel — a written statement that is harmful to someone else’s reputation. And because Nunes is a public figure, the standard for libel is higher. As Tushnet said, “[Nunes] has to show that the defendants made false statements of fact either knowing that they were false or with reckless disregard of their truth or falsity.”

Democratic presidential candidates are beginning to coalesce around the idea of court-packing, that is, expanding the Supreme Court to “make up” for President Trump’s appointed judges. The theory goes that the seat now held by Justice Neil M. Gorsuch should have been filled by President Barack Obama’s pick, Merrick Garland, whom Senate Majority Leader Mitch McConnell (R-Ky.) unfairly denied a vote. ... Larry Tribe likewise argues against court-packing. “I’m not in favor of trying what FDR sought to do — and was rebuffed by the Democratic Senate for attempting," he tells me. "Obviously partisan Court-expansion to negate the votes of justices whose views a party detests and whose legitimacy the party doubts could trigger a tit-for-tat spiral that would endanger the Supreme Court’s vital role in stabilizing the national political and legal system.” He adds, “Besides, proponents of partisan Court-packing haven’t proposed a realistic way of handling the transition to a 15-Justice Court.”

An op-ed by Laurence Tribe and Joshua A. Geltzer: Constitutional democracies are under attack across the globe. As the tide of autocracy rises, not even our American republic is safe. Among the most alarming signals is President Donald Trump’s assault on truth and attack on dissent. He asserts, without a shred of evidence, that his 2016 opponent’s nearly 3 million popular vote margin had to reflect voter fraud. He dismisses as a hoax the mounting evidence that it was he who actually defrauded the American people by directing payments of hush money and deceiving voters about his continued pursuit of business interests in Russia. Our legal system provides no timely relief from such alarming mendacity even as it erodes the foundations of our republic. But when the president shores up this deception by silencing disagreement and dissent, he finally crosses a legal line that the courts thankfully can police. A landmark legal battle that will unfold later this month in federal court in New York represents a welcome chance for freedom of expression to triumph over falsehood. The two of us, together with other First Amendment experts, have filed a friend-of-the-court brief supporting those who sued Trump for blocking their free expression. That brief urges the court to seize this vital opportunity to vindicate our Constitution’s promise that freedom of speech will pave the path to a society built on truth, not lies.

Is sperm basic property?  What happens when frozen sperm is contested?  Can children born after the death of the father inherit from the father's estate? Glenn Cohen is a professor of law at Harvard Law School. He is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law.

Since entering the White House, President Donald Trump has rolled back a number of environmental regulations put in place by his predecessors that could make drinking water less safe for people across the US. ...The Trump administration in October 2018 scrapped a regulation proposed by the Obama administration in its final days to strengthen protections for groundwater near uranium mines. The primary method for uranium extraction, known as in-situ recovery, "can contaminate groundwater if water containing uranium extraction byproducts flows into nearby aquifers," according to Harvard Law School's Environmental & Energy Law Program.

International criminal justice has hit a rough patch. The work of the International Criminal Court (ICC) is under regular attack from the Trump administration, which opposes the Court’s intention to open an investigation into alleged war crimes in Afghanistan. Just last week, Secretary of State Mike Pompeo announced the United States would restrict visas for ICC officials involved in any such investigation, stating “The ICC is attacking America’s rule of law.” ... “You need these kinds of films every once in a while to remember why the project is worth fighting for,” Just Security’s Alex Whiting told me. Whiting previously worked as a senior trial attorney with the ICTY, where he was lead counsel in several war crimes and crimes against humanity prosecutions, and he wrote about the Mladić verdict when it was announced in 2017. “The Ratko Mladić trial shows why accountability for international crimes is so important,” Whiting said. “Mladić claimed to have an alibi for the massacre of some 8,000 Bosnian Muslim men and boys at Srebrenica and blamed rogue elements. He claimed that Serb forces were not responsible for the campaign of terror on Sarajevo, and that there was no ethnic cleansing of Bosnia in 1992. The Trial Chamber rejected all of these false defenses and found that Mladić and other Bosnian Serb leaders, including Radovan Karadžić, orchestrated the crimes for their own nationalist ends. Exposing how war crimes, crimes against humanity, and genocide are perpetrated by design and for a purpose is an essential step to preventing them in the future.”

The Business Roundtable, the top lobbying organization for industry in Washington, is often characterized as a nonpartisan or bipartisan organization. It represents more than 200 large companies — from oil giants to tech sweethearts — with more than $7 trillion of revenue and more than 15 million workers of all political stripes. ...  Rather than look at party affiliation or public statements, the researchers — Alma Cohen, Moshe Hazan, Roberto Tallarita and David Weiss — looked at the truest measure of political leanings: They followed the money. For the study, to be released Tuesday, they tracked personal political contributions for more than 3,500 chief executives that occupied the corner office anytime from 2000 to 2017. The period covers a two-term Republican presidency, a two-term Democratic presidency and the start of President Trump’s time in office — after he lost the popular vote but won the Electoral College. In other words, on the whole, voters have been pretty evenly divided between the parties in that time.

As scrutiny over unfair Chinese business practices intensifies amid drawn out U.S.-China trade discussions, investors are debating another contentious issue: minority American shareholders “squeezed out” by U.S. listed Chinese companies. ... Further complicating the issue is the controlling share structure of the companies, which allows founders to retain voting control. Minority investors, who own less than a 50% stake in the company, have little say in the direction of the company and are left powerless to contest a low-ball buyout offer. While that itself is not unique to Chinese firms, they have largely escaped shareholder repercussions because they are domiciled in the Cayman Islands, where minority investors have less protection than in Delaware, where most U.S. companies are registered, according to Harvard Law Professor Jesse Fried. “The problem from the perspective of minority shareholders is the fact that all the defendants, the assets, the records, are all in the People’s Republic of China, which makes them unavailable,” Fried says. “It also drives up the cost of litigation.”

Rep. Steve King has civil war on his mind. The Iowa Republican broached the subject in a Saturday evening Facebook post - a bizarre meme of two fighting figures, one red and one blue, each an amalgamation of states based on their political leanings. "Folks keep talking about another civil war," the meme read. "One side has about 8 trillion bullets, while the other side doesn't know which bathroom to use." ... "This is treason," said Richard Painter, the Bush administration ethics chief, on Twitter. "Steve King should be expelled from the House immediately." Responding to Painter, Harvard Law professor Laurence Tribe modified his criticism: King "isn't actually COMMITTING treason, but he is fomenting and inciting it. Ample reason to expel him."

An op-ed by Noah Feldman: President Donald Trump apparently caught a rerun of “Saturday Night Live” this weekend, and decided to tweet Sunday morning that the NBC program should be investigated by the Federal Communications Commission for parodying him so much. That’s legally absurd. But Trump’s lament reflects the persistent power of the old idea that television networks should be fair to all political sides and give equal time to all candidates for office. It’s worth asking: What’s the current state of the law on broadcaster fairness? And beyond the law, should fairness be an objective of any kind in the era of cable news and social media?

2020 presidential candidate Beto O'Rourke reminds Harvard Law School professor Laurence Tribe of a former student he once took under his wing. As O'Rourke, 46, embarks on his first trip as a candidate, Tribe said the former Texas congressman is showing the fast-paced development he also witnessed in former President Barack Obama. ".@BetoORourke appears to be absorbing information like a sponge on the campaign trail. He hears and processes everything, forgets nothing. Reminds me in that way, even apart from the charisma, of my brilliant former student, someone you may have heard of: President @BarackObama," he tweeted.

President Trump's deregulatory boss is now seated on one of the most powerful courts in the nation, where she'll have lifetime tenure to influence environmental policy and other issues. Neomi Rao will be sworn in this afternoon to the U.S. Court of Appeals for the District of Columbia Circuit, a forum with broad authority to review regulations and federal agency decisions, among other things. ...  Joseph Goffman, an Obama-era EPA official and executive director of Harvard Law School's Environment and Energy Law Program, pointed out that like her predecessor, Rao built her career among "extremely conservative members of the legal community centered around the Federalist Society." Another Kavanaugh-style judge on the powerful court is not good news for environmental litigants, Driscoll said. "In terms of political ideology, she's right there with him," he said. "I don't think we'll expect any better outcomes with her on the bench."

Time is running out for Michael Cohen, who has less than two months until he reports to prison. ...Cohen’s credibility is under siege after he admitted that he lied to lawmakers. Prosecutors have already pored through Cohen’s seized electronics and documents for evidence. If Cohen does have a magic bullet, it would have to be unique information providing prosecutors an investigative road map against Trump, said former federal judge Nancy Gertner. “If he testified about information on the inner workings of the Trump business that they wouldn’t otherwise have, that would be very helpful to investigators” and Cohen, said Gertner, who teaches at Harvard Law School.

Harvard law professor Laurence Tribe has raised concerns that President Donald Trump could go to extreme lengths to hold onto power after 2020. Tribe, a constitutional law scholar at Harvard Law School, appeared on MSNBC’s AM Joy with host Joy Reid on Sunday. During the interview, the legal expert warned that Trump, in his opinion, presents unique threats to the country and democracy. “Elections happen every four years,” Tribe explained. “And sometimes some leaders are much too dangerous to leave in power — and this may be such a case. The fact is by 2020, the amount of damage that will have been done to our rule of law, to constitutional norms will be very great and we can’t count on him [Trump] being out of office in 2020.”

House Speaker Nancy Pelosi says that while Donald Trump is not fit to serve, impeachment would divide the country. Joy Reid and Harvard professor of constitutional law Laurence Tribe discuss if and when impeachment could serve America.

YouTube has tried to keep violent and hateful videos off its service for years. The Google unit hired thousands of human moderators and put some of the best minds in artificial intelligence on the problem. ... He posted a manifesto filled with references to internet and alt-right culture, most likely designed to give journalists more material to work with and therefore spread his notoriety further, said Jonas Kaiser, a researcher affiliated with Harvard’s Berkman Klein Center for Internet and Society. “The patterns seem to be very similar to prior events,” Kaiser said.

.... While teaching, I saw repeatedly the extent to which my students’ ethics — or ethical lapses — were shaped by their helicopter parents. Now, I’d love to be the one to put a learning on those adults. ...“The Tyranny of the Meritocracy: Democratizing Higher Education,” by Lani Guinier. Harvard law professor Guinier delivers an uplifting vision for higher education. She demands we abandon America’s “Testocracy,” which obsesses over standardized test scores that measure little more than access to privilege, in favor of a truly collaborative approach to admissions and education that emphasizes people’s holistic competence. This wake-up call asks America to shatter its current higher education paradigm, because it is neither equitable nor effective.