Media Mentions

An op-ed by Cass Sunstein: This is the first in a series of opinion pieces on how to fix democracy.  Democracies Depend for their stability on four things. First, well-functioning institutions. Second, the delivery of good or at least decent outcomes for most citizens. Third, norms of reciprocity and forbearance. And fourth, certain character traits among both officials and citizens. While the four are closely connected, the last is the most fundamental.  In particular, democracies require high levels of personal grace. They are gravely endangered by its opposite, which is savagery. James Madison, the principal thinker behind the American Constitution, focused mostly on institutional design. But in the Virginia Ratifying Constitution, he went in a different direction, and offered a kind of cri de coeur: “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure.”

Paul Manafort, President Trump’s former campaign chief, was sentenced to a mere 47 months for eight white-collar crime convictions. In handing down his sentence, Judge T.S. Ellis added insult to injury by stating Manafort had lived a “blameless” life before getting caught committing a host of crimes. Ellis seems to have been unaware that for a good deal of his adult life, Manafort made money — blood money, his own daughter called it — representing a rouges’ gallery of butchers. Newsweek recounted his non-Russian clientele. ... Constitutional scholar Laurence Tribe tweeted, “Judge Ellis’s assessment that Manafort led an ‘otherwise blameless life’ was proof that he’s unfit to serve on the federal bench. I’ve rarely been more disgusted by a judge’s transparently preferential treatment to a rich white guy who betrayed the law and the nation.”

A Letter to the Editor: We the 52 undersigned members of the Harvard Law School faculty support our colleague Ronald S. Sullivan Jr.’s dedication to the professional tradition of providing representation to people accused of crimes and other misconduct, including to those who are reviled. For the past 10 years while serving as faculty dean of Winthrop House, professor Sullivan has represented alleged victims of sexual assault as well as people accused of sexual assault, murder, and terrorism. [Editor’s note: Sullivan is representing Harvey Weinstein in his current criminal case, which has generated protests at Harvard.] We call upon our university’s administration to recognize that such legal advocacy in service of constitutional principles is not only fully consistent with Sullivan’s roles of law professor and dean of an undergraduate house, but also one of the many possible models that resident deans can provide in teaching, mentoring, and advising students. The university owes a robust response to allegations of sexual harassment and other sexual misconduct. We respect students’ right to protest professor Sullivan’s choice of clients. But we view any pressure by Harvard’s administration for him to resign as faculty dean of Winthrop, because of his representation or speaking on behalf of clients, as inconsistent with the university’s commitment to the freedom to defend ideas, however unpopular.

A Q&A with Ronald Sullivan: Ronald S. Sullivan, Jr., a clinical professor at Harvard Law School, is among the most high-profile criminal-defense lawyers in the country. Sullivan represented Aaron Hernandez in his acquittal for a double homicide and helped the family of Michael Brown reach a $1.5-million-wrongful-death settlement with the city of Ferguson, Missouri. Sullivan has also devoted much of his career to representing less-privileged defendants: he is the director of the Criminal Justice Institute at Harvard Law School and previously served as the director of the Washington, D.C., Public Defender Service. In the wake of Hurricane Katrina, he helped free thousands of Louisianans who had been incarcerated without due process. ...I recently spoke twice by phone with Sullivan to discuss his career and his decision to represent Weinstein. During our conversations, which have been edited for length and clarity, we also discussed the state of campus debate and his belief that racism contributed to Harvard’s decision to conduct the climate survey.

Lawyers in love shouldn’t behave like lawyers, according to advice from one of six married couples from Harvard Law School’s class of 1979. All six couples met while first-year students in Harvard’s Section 3, which is similar to a homeroom period, the New York Times reports. ...The article prompted Harvard Law professor Richard Lazarus to alert the Times to a bigger romantic feat: Six couples from Section 3 of the Class of 1979 had not only married; they remain married to this day. He dubs the section the “love section.”

The World Bank can be sued when its overseas investments go awry. And so can some other international organizations. That is the clear message from the U.S. Supreme Court, which last week issued a 7-1 decision in Jam v. International Finance Corporation, ruling for the first time that international financial institutions, including various branches of the bank and other U.S.-based organizations like the Inter-American Development Bank, can be subject to lawsuits in cases where their investments in foreign development projects are alleged to have caused harm to local communities. ..."This decision certainly opens the door for more lawsuits," says Mark Wu, an international trade law scholar at Harvard Law School, who was not involved in the suit. "It may cause [international financial institutions] to be more cautious in the operations of the projects themselves." Wu added that the new legal liability might make the World Bank think twice about whether to fund projects that could come with high environmental or social risks.

There are times in life that you know something when you see it. In competitive sports, a very talented player usually stands out above the others. I can identify within seconds whether I will dislike the food at a restaurant based on the smell. Social media has become a significant part of the daily landscape of society. There is interaction, information-sharing, debate, discussion, vitriol, harassment, and a lot of people exhibiting the Dunning-Kruger Effect.  ...The Berkman Klein Center for Internet & Society at Harvard University published a collection of essays entitled Perspectives on Harmful Speech Online. In the essay "The Multiple Harms of Sea Lions," Amy Johnson writes: Rhetorically, sealioning fuses persistent questioning—often about basic information, information on easily found elsewhere, or unrelated or tangential points—with a loudly-insisted-upon commitment to reasonable debate. It disguises itself as a sincere attempt to learn and communicate. Sealioning thus works both to exhaust a target’s patience, attention, and communicative effort, and to portray the target as unreasonable. While the questions of the “sea lion” may seem innocent, they’re intended maliciously and have harmful consequences.

When Rep. Alexandria Ocasio-Cortez, D-N.Y., questioned former lawyer Michael Cohen about his knowledge of President Donald Trump's financial history, she may have laid the groundwork for future prosecution of the president. ...According to Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, "it appears that Donald Trump made a practice of wildly exaggerating his wealth and the supposed business acumen that enabled him to amass it." Tribe told Salon, "Although there are no legal and especially criminal consequences to that kind of exaggeration on reality television or in talking to journalists at places like Forbes in order to cheat one’s way onto various lists of the wealthiest people around, there are very serious criminal consequences indeed when such lies, in the form of fraudulent financial statements, are used either to extract loans from banks or to obtain insurance on favorable terms from various insurance companies."

An op-ed by Noah Feldman: President Donald Trump has indicated that he may not want to comply with a series of 81 requests sent by the House Judiciary Committee as part of a strategy of full-on investigation of the president and his associates. His reaction is understandable, but his ability to resist is much more limited than he seems to think. If the House committee issues subpoenas, as opposed to simple requests, the addressees will have a duty to comply unless the information falls within the zone of a legally recognized privilege. And the relevant possibilities, executive privilege and attorney-client privilege, don’t apply widely.

Cyberbullying is a very real problem, with thousands of British children suffering at the hands of online bullies every year, according to Ofcom statistics. In fact, a 2017 Ofcom report revealed that around one in eight young people have been bullied on social media. And among teenagers, that figure might be even higher, with McAfee research suggesting that almost half (47 per cent) of 14-18 year olds have been bullied online. ... Facebook has also worked on resources for teachers – the Digital Literacy Library – which was recently rolled out in the UK. The lessons, designed by experts at the Berkman Klein Center for Internet & Society at Harvard University, are built for children aged 11 to 18 years old.

Corinthian Colleges was a higher-education scam that defrauded tens of thousands of low-income students out of as much as $100 million in federally backed loans. Many are still struggling with the consequences because the Trump administration is refusing to grant them full relief from their student debt. The Securities and Exchange Commission just settled its case against Jack D. Massimino and Robert C. Owen, the leading perpetrators of this deception, for a pittance. ...“Just comparing the slap on the wrist that the executives have gotten from the SEC to the plight of the students is pretty outrageous, both in absolute and relative terms,” says Eileen Connor of the Project on Predatory Student Lending at Harvard Law School, which has been representing many of the students in court.

Employees who obtained a favorable settlement of their Wage Act claim were considered “prevailing parties” entitled to attorneys’ fees under the statute’s fee-shifting provisions, the Supreme Judicial Court has determined. ... Harvard Law School student Elizabeth Soltan, who argued on the plaintiffs’ behalf, said she hopes the decision enables more attorneys to take on Wage Act cases. ... HLAB clinical instructor Patricio S. Rossi, plaintiffs’ counsel of record, noted that it is difficult for low-wage workers to get representation for Wage Act claims because such cases typically do not involve enough money to be worthwhile for lawyers to take on contingency.

The United States responded weakly after Russian cyber operations disrupted the 2016 presidential election. US President Barack Obama had warned his Russian counterpart, Vladimir Putin, of repercussions, but an effective reply became entangled in the domestic politics of Donald Trump’s election. That could be about to change. ... Jack Goldsmith of Harvard Law School has argued that the US needs to draw a principled line and defend it. That defense would acknowledge that the US has itself interfered in elections, renounce such behavior, and pledge not to engage in it again. The US should also acknowledge that it continues to engage in forms of computer network exploitation for purposes it deems legitimate. And officials should “state precisely the norm that the United States pledges to stand by and that the Russians have violated.”

In the 1980s, China was beginning a long economic boom that would transform the global trading system, and Michael Korchmar decided to go there to launch a joint venture. He quickly soured on the country. ...Consider this: China has more companies in the Fortune 500 than any country except the United States. More than half of those firms are controlled by a single government agency, the state-owned Assets Supervision and Administration Commission, wrote Harvard law professor Mark Wu, in a 2016 article, "The 'China, Inc.' Challenge To Global trade Governance." ... "The closest analogue would be if, in the aftermath of the 2008 financial crisis, the U.S. Treasury Department set up a single government entity to act as the controlling shareholder of JPMorgan Chase, Bank of America, Citibank and Wells Fargo," Wu wrote. Even when a company has no explicit ties to the government or the party, executives must work hard to stay in Beijing's good graces, if they want their companies to have access to the best contracts, Wu says. "People understand what the objectives are and they'll operate within those confines," he says.

An op-ed by Noah Feldman: Impeachment investigation without actual impeachment: That’s the strategy House Democrats have unveiled for taking on Donald Trump for the 20 months until the 2020 presidential elections. The Michael Cohen hearings last week were, apparently, just the first salvo. On Monday, the House Judiciary Committee requested documents from 81 agencies, organizations and individuals connected to the president. The committee under Chairman Jerrold Nadler is preparing to leave no stone in Trump’s life unturned. This investigative barrage solves a political problem for the Democrats, namely the danger that impeaching Trump would not lead to his being removed by the Senate and might instead help him win re-election, by energizing his supporters.

The difficulty of covering the Trump administration is that the scandals are so numerous and frequent that it is nearly impossible to focus on one before being overtaken by another. ... Perhaps the Justice Department and the Federal Communications Commission were deciding these cases on the merits. But T-Mobile executives seem to have gotten the message that they can influence antitrust proceedings by currying favor with the president: They dramatically increased their patronage at the Trump hotel in Washington as soon as they announced a merger with Sprint. If Trump misused his authority to reward his friends in the media and punish his enemies, Harvard law professor Cass Sunstein argues, that would be an impeachable offense.

We’re joined by Harvard law professor and former presidential candidate Lawrence Lessig for a conversation about the power of money in politics, specifically, the money primary. He’ll be in Rochester as a guest of SUNY Geneseo, but first, he’s our guest on Connections.

After our article on Jan. 19 about three marriages from a Harvard Law School section, Richard J. Lazarus wrote The Times. Professor Lazarus, who also teaches first-year law students at Harvard, applauded the newlyweds and his friend and colleague Jon Hanson, the head of that featured section (1L, Section 6).  But as a member of the Class of 1979 and as someone familiar with all things Harvard Law, Professor Lazarus also wanted to alert us to an even higher romantic bar set by 1L, Section 3: Six couples not only married from that section, but — drum roll please — they are all still married. “I am happy to report that, 40 years later, all six couples are still intact,” said Professor Lazarus, who refers to that section as “the love section.” (Professor Lazarus was a student in Section 4 that year.)

Before the vote, Maryland Del. Charles E. Sydnor III had planned to rise to explain why he would cast a ballot to censure his colleague, a fellow Democrat who began her state legislative career with him five years ago. ... Sydnor was one of 137 members of the House of Delegates who, on the final day of Black History Month, took the rare action of censuring Del. Mary Ann Lisanti (Harford) for conduct that “brought dishonor to the entire General Assembly of Maryland.” The revelation Monday that Lisanti, a white lawmaker, had described an area of Prince George’s County as a “n----- district,” sent feelings of hurt, shock, anger and disgust through the State House, across Maryland and into Prince George’s, a community long hailed as a mecca of the black middle class. ... “It is the most notorious racial-ethnic-group slur in the American language, and that is saying something because the American language is filled with slurs,” said Harvard Law professor Randall L. Kennedy.

The graffiti showed up on the door of a Harvard University building last week: “Our rage is self-defense,” and “Whose side are you on?” The unexpected target was Ronald S. Sullivan Jr., who is an accomplished lawyer, the director of Harvard’s criminal-law clinic and the first African-American to be appointed as a faculty dean. Earlier this year, Mr. Sullivan joined a team of lawyers representing the Hollywood producer Harvey Weinstein, who heads to trial in June in Manhattan on rape and related charges. ... In his first public remarks, Mr. Sullivan said in a phone interview on Monday that he did not anticipate the level of backlash he has received. He has a long history of taking on high-profile and, at times, controversial clients, as well as representing students who have been victims of sexual assault, he said. “Lawyers are not an extension of their clients,” Mr. Sullivan said. “Lawyers do law work, not the work of ideology. When I’m in my lawyer capacity, representing a client, even one publicly vilified, it doesn’t mean I’m supporting anything the client may have done.” ... But many of Mr. Sullivan’s colleagues have come to his defense. Dozens of law professors from the university on Feb. 14 sent a letter to the college in support of Mr. Sullivan. On Feb. 28, The Chronicle of Higher Education published an article by Randall Kennedy, a Harvard law professor, who wrote: “Those calling for Sullivan’s resignation or dismissal as a faculty dean solely because he is serving as Harvey Weinstein’s lawyer in a rape prosecution are displaying an array of disturbingly widespread tendencies.

The legal battle over who’s at fault for the opioid crisis, which involves more than 1,600 lawsuits in federal and state courts, could get even more complicated soon, with OxyContin manufacturer Purdue Pharma reportedly considering filing for bankruptcy. ...The idea is to produce a resolution in a faster, more focused manner than would be the case in civil court. And even if plaintiffs only receive a fraction of what they are owed, the aim is to get everyone a piece of the pie. Otherwise, different plaintiffs might try to accelerate their own efforts so they can take the full amount owed to them, leaving little for other plaintiffs. “If [a company] has to pay cases as they were finalized, the plaintiff that had reached a resolution in its case earlier might get paid in full, but there would be nothing left for anyone else,” said Jesse Fried, a professor at Harvard Law School.