Media Mentions

A hearing in the Fourth Circuit on appeal of a lower court ruling allowing the District of Columbia and Maryland to sue President Trump under the Constitution’s emoluments clause went, to put it mildly, poorly. All three judges are GOP appointees, one by Trump himself.  ... Constitutional scholar Larry Tribe conceded, “It’s always treacherous to read too much into the questions counsel are asked by appellate judges, but the questions the Fourth Circuit panel asked ... voicing skepticism — unwarranted, in my view — about harm to the State of Maryland and to DC suggest to me that these judges, unlike District Court Judge [Peter J.] Messitte, might have been readier to support standing for the competing hotels and restaurant workers like those who joined the CREW lawsuit that’s currently on review in the Second Circuit, where the district court failed to grant standing.” Tribe is co-counsel in the Second Circuit suit.

An op-ed by Dustin Lewis: What are some of the chief concerns in contemporary debates around legal reviews of weapons, means or methods of warfare involving techniques or tools related to artificial intelligence (AI)? One session of the December 2018 workshop on AI at the frontiers of international law concerning armed conflict focused on this topic. In this post, I outline a few key threshold considerations and briefly enumerate 16 elements that States might consider as part of their legal reviews involving AI-related techniques or tools.It is imperative, in general, for States to adopt robust verification, testing and monitoring regimes as part of the process to determine and impose limitations and—as warranted—prohibitions in respect of an employment of weapons, means or methods of warfare. Where AI-related techniques or tools are—or might be—involved, the design and implementation of legal review regimes might pose particular kinds and degrees of challenges as well as opportunities.

Recent advances in artificial intelligence have the potential to affect many aspects of our lives in significant and widespread ways. Certain types of machine learning systems—the major focus of recent AI developments—are already pervasive, for example in weather predictions, social media services and search engine results, online recommendation systems. Machine learning is also being applied to complex applications that include predictive policing in law enforcement and ‘advice’ for judges when sentencing in criminal justice. Meanwhile, growing resources are being allocated to developing other AI applications. ...We asked some of the experts to distill—in under 300 words—some of the key issues and concerns that they believe we aren’t thinking enough about now when it comes to the future on AI and armed conflict. ...Naz K. Modirzadeh, Founding Director & Dustin A. Lewis, Senior Researcher, Harvard Law School Program on International Law and Armed Conflict. "Looking to the future of artificial intelligence and armed conflict, those of us concerned about international law should prioritize (among other things) deeply cultivating our own knowledge of the rapidly changing technologies. And we should make that an ongoing commitment. There is a perennial question about subject-matter expertise and the law of armed conflict; consider cyber operations, weaponeering and nuclear technology. When it comes to the increasingly impactful and diverse suite of techniques and technologies labeled ‘AI’, the concern takes on a different magnitude and urgency. That’s in no small part because commentators have assessed that AI has the potential to transform armed conflict—and not just the conduct of hostilities.

An op-ed by Noah Feldman; European regulators are cracking down on the big technology companies — witness the 1.49 billion euro ($1.7 billion) fine against Google on Wednesday. At the same time, however, the U.S. Supreme Court is cautiously entering the business of protecting them. In a decision that on the surface looks minor, but is actually an important signal, the court on Wednesday sent a class-action suit against Google back to the lower courts to determine whether any of the plaintiffs actually had standing to sue.  The justices’ action strongly hinted that a majority thinks the suit should never have been allowed to go forward in the first place. If that’s right, it’s an affirmation of the court’s new constitutional idea that it isn’t enough for Congress to create new legal rights that can be used against tech companies. There must be what the court calls “concrete” harm to users. That determination, crucially, rests with the Supreme Court, not with Congress.

President Donald Trump continued his attacks on the late Arizona senator John McCain (R) today — this time complaining that he “didn’t get a thank you” for approving his state funeral. During an official White House event at an Ohio tank factory on Wednesday afternoon, Trump spent several minutes criticizing McCain, who passed away last August from brain cancer. The president’s comments marked the fourth time in less than a week that he’s lashed out at the former Republican senator. ...“Trump now claims credit for the McCain funeral! He says 'as president' he had to 'approve' it,” Harvard Law School professor Laurence H. Tribe tweeted. “BS! Lying in state at the Capitol was up to Congress, not POTUS. This despot has the gall to say a hero’s burial is within his control. What a putz.”

The U.S. Supreme Court on Wednesday stopped short of prohibiting a form of class action settlements in which funds awarded go to unrelated third parties and lawyers but not to the parties making claims. The justices in Frank v. Gaos, which involved an $8.5 million internet privacy settlement with Google, did not address the legality of class settlements featuring only “cy pres” funds going to third-party groups and organizations and not to plaintiffs. ...Cy pres critics claim it has become a common litigation tactic, but an amicus brief by Harvard Law’s William Rubenstein said only 18 cy pres-only settlements have been approved by federal courts in the last 20 years.

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.