Media Mentions

On the second day of 2019, Interior Secretary Ryan Zinke tweeted out his resignation letter to President Donald Trump. After less than two years in office, he claimed to have “restored public lands ‘for the benefit & enjoyment of the people,’ improved public access & shall never be held hostage again for our energy needs.” ...The legal actions of the Trump administration’s Interior Department are also vulnerable in federal courts. “We see a pattern of attempts to suspend compliance with agency rules,” that doesn’t adhere to the Administrative Procedures Act, said Hana Vizcarra, the staff attorney for Harvard Law’s Environmental and Energy Law Program.

A proposal from Senate Republicans to end the partial government shutdown includes not only the $5.7 billion President Donald Trump seeks for a border barrier with Mexico, but also landmark changes to the U.S. asylum system. It’s uncertain if the proposal — in its current form — would pass the Senate or get approval from the U.S. House of Representatives. Democratic leaders in Congress have already come out against the proposal. ... International law says that a signatory to the United Nations Refugee Convention/Protocol (Article 33) cannot return a refugee to a country where he or she faces persecution on account of race, religion, nationality, membership in a particular social group or political opinion, said Deborah Anker, a clinical professor of law, founder and director of the Harvard Immigration and Refugee Clinical Program at Harvard Law School. "If the United States turns away people at the border, or from within the United States, it is violating the Convention/Protocol," Anker said.

Harvard Law Professor Laurence Tribe openly questioned why more attention hasn’t been given to what he’s described as “witness tampering” on the part of President Donald Trump toward his former “fixer” lawyer Michael Cohen. Referring to a BuzzFeed News article that suggested Trump had told Cohen to lie in front of Congress during testimony he had given, Tribe pondered over why Trump’s latest attacks against his former legal counsel didn’t garner more outrage or concern. “Why did Buzzfeed story about Trump’s subornation of perjury cause a Tsunami while his witness tampering in plain view causes only a ripple?” Tribe asked in a tweet he authored on Thursday morning.

The death last week of the founder of Vanguard, Mr John Bogle, offers a timely reminder of the upheaval in the asset management industry brought about by the advent of index investing around four decades ago. Index investing had its antecedents in the development of modern portfolio theory. ...In a similar tradition to Berle and Means, Professor Lucian Bebchuk, Alma Cohen and Scott Hirst from Harvard University suggests that the institutionalisation of stock markets exacerbates the conflict of interest (The agency problems of institutional investors, Journal of Economic Perspectives 2017). In a world of diffuse and dispersed share ownership, institutional investors are reluctant to engage in monitoring in the knowledge that their competitors also benefit from their own time consuming and expensive monitoring activities. Index funds in particular, face weak incentives to engage in stewardship activities that improve governance and value because they bear the full cost of such activities but not the full benefits.

As prominent members of the U.S. Senate, Mitch McConnell and Rand Paul each has a well-stocked political action committee, but Kentucky’s two Republican senators could hardly be more different in how they raise and spend their PAC money. Paul spent much more on travel, food and drink combined last year than he did on the original purpose for such politician PACs – to use this separate political stash to make contributions to other like-minded candidates. ... Lawrence Lessig, a campaign finance expert who is the Roy L. Furman professor of law and leadership at Harvard Law School, said for many the leadership PAC has become a device for modestly paid members of Congress to live like those in Washington’s elite professional class of lawyers, lobbyists and executives. “As long as what you’re doing can be tied to the business of building political support for your movement, you get to expense that to your leadership PAC,” Lessig said.  “So you go to dinner at one of the fancy restaurants in Washington and you roll up a $600 bill for the three or four of you. As long as you spend some part of that dinner talking about how you’re going to get your party in power, or what strategy should be adopted to rally more support for your party, that becomes expense-able.”

The Supreme Court is not likely to review during its current term the program that shields young undocumented immigrants brought to the United States as children, leaving in place the Obama-era initiative that the Trump administration has tried to end. The justices on Tuesday took no action on the administration’s request that it review the Deferred Action for Childhood Arrivals program, which has protected nearly 700,000 people brought to this country as children, commonly known as “dreamers.” ...Constitutional scholar Laurence Tribe tells me, “The absence of a circuit split would not have prevented the Court from agreeing to hear a case of this enormous national significance at the earliest possible opportunity unless it was reluctant to wade into so political a thicket at a time when doing so would clearly change the president’s bargaining leverage on the shutdown.”

California Sen. Kamala Harris had barely become a candidate for the Democratic presidential nomination before birther accusations started on Twitter. Harris announced her candidacy on Jan. 21. The following morning, Jacob Wohl -- a self-described Trump supporter who has been described by media outlets as a "far-right conspiracy theorist" -- questioned whether Harris was eligible to run. ..."If you are born in the U.S, you are automatically a natural-born U.S. citizen under the constitution," said Harvard Law Professor Einer Elhauge.

“The talk of impeachment, all-but-taboo in Big Media’s coverage of Trump, [has] moved from the margins into the mainstream — across the journalism spectrum,” wrote Margaret Sullivan, The Washington Post’s media critic, in her latest column. The topic was even part of this week’s episode of “Fox News Sunday,” as Sullivan pointed out. ... Laurence Tribe, a Harvard law professor, and Joshua Matz also make this argument in a forthcoming epilogue to the paperback edition of “To End a Presidency,” their book about impeachment: “The president wins — and everyone else loses — when the main framework for evaluating his conduct is whether it will trigger impeachment. By battling on that terrain, [Trump] preemptively sets aside most standards by which a democracy should judge its leader. He also invigorates his base by turning every dispute into a referendum on his continued tenure in office.”

An op-ed by Noah Feldman: In two separate but similar cases today, the Supreme Court has handed President Donald Trump a setback on immigration and a victory on transgender troops. In particular, the court’s actions show that its newest member, Justice Brett Kavanaugh, may not be prepared to give the president what he wants. Before reading the tea leaves, however, it’s important to understand what the court actually did. It chose to leave the Deferred Action for Childhood Arrivals program in place for now, meaning that it won’t hear a case about it before October 2019, and probably a good deal later. This decision — or really non-decision — is a setback for Trump, who tried to rescind DACA, which protects hundreds of thousands of undocumented immigrants from being deported. His plan was blocked by a federal district court. Meanwhile, the court ruled 5-4 that his ban on transgender people serving in the military can go into effect while the issue is being litigated.

Twenty-eight years. That’s how much time, in total, Aaron Isby-Israel has served in solitary confinement within the Indiana Department of Correction since his 1989 incarceration. Some of that time has been broken up by stints in general population, but Isby has consistently served his time in administrative segregation at the Wabash Valley and Westville correctional facilities since October 2006. ...As a lawyer who has followed and assisted in Isby’s litigation, David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said he viewed Isby’s time in isolation as a “second sentence.” There have been times when Isby’s physical health deteriorated because of his isolation, Harris said, though he praised the inmate for staying focused on his legal fight. It’s unusual for inmates in solitary confinement to maintain the mental strength Harris said is present in Isby. Indeed, Daniel Greenfield, a solitary confinement appellate litigation fellow with the MacArthur Justice Center at Northwestern University Pritzker School of Law, said research shows the opposite is usually true: that is, prolonged isolation causes or exacerbates mental illnesses.

Three Democratic presidential electors from Washington state who joined a longshot effort to deny Donald Trump the presidency in 2016 are challenging the $1,000 fines they received for breaking their pledge to support their party’s nominee. The three agreed to support Hillary Clinton in the Electoral College after Clinton won the popular vote in Washington. ...The trio’s lawyer, Harvard Law professor Lawrence Lessig, told the Washington Supreme Court on Tuesday the fines violated their First Amendment rights. An attorney for the state said the fines fell within its authority.

To gain insight into President Trump – and the government shutdown – read Chapter 2 of “The Art of the Deal.” Many of the steps businessman Trump and his coauthor lay out in their 1987 bestseller reflect the president’s aggressive approach to negotiation today: Think big. Use your leverage. Get the word out. Fight back. “My style of deal-making is quite simple and straightforward,” the chapter begins. “I aim very high, and then I just keep pushing and pushing and pushing to get what I’m after.” ...If the current standoff represents a classic case of “positional bargaining” – one side wins, the other side loses – experts say there’s an alternative approach, called interest-based negotiation. “The basic idea here is, let’s not focus on positions, or what each side says they want: ‘I want a wall;’ ‘Well, we’re not going to give it to you,’ ” says Daniel Shapiro, director of the Harvard International Negotiation Program. In this negotiation technique, the starting point is to look at the underlying interests.

Global regulators are starting to home in on an academic theory on the drawbacks of overlapping corporate ownership by investors, a trend that could pose a threat to the $80tn asset management industry. The theory is known as “common ownership”, which refers to shareholders, or owners, holding shares in competing companies within the same sector. According to the argument, managers of companies have fewer incentives to invest in new products or services, or to try to lure customers from rivals, if they know that big owners of their shares also have big stakes in their rivals. In other words, common ownership hurts competition. ... Under current US antitrust laws, common ownership would need proven anti-competitive effects in order for it to be considered illegal. Professor Einer Elhauge of Harvard Law School argues in a recent paper that the anti-competitive effects of horizontal shareholding, as he calls it, have been empirically confirmed, and that it is in fact illegal under US and EU antitrust laws.

The 2020 presidential contest has already begun, with several Democratic candidates declaring their intention to challenge Donald Trump for the Oval Office and more on the way. Unlike in 2016, we now know what kinds of chaos America’s adversaries are capable of sowing, especially during campaign season. That means it’s time to contend with the threat of foreign intervention in our elections and in our democracy more broadly—before it’s too late. ...Let’s begin by acknowledging the voices of skepticism—those who question whether Russia’s behavior of today is really all that out of step with historical norms of great power behavior. Scott Shane raised these doubts last year in the New York Times, contrasting what he portrayed as most Americans’ shock at “what they view as an unprecedented attack on our political system” with the characterizations by a CIA veteran and two intelligence scholars of Moscow’s current campaign as “simply the cyber-age version of standard United States practice for decades, whenever American officials were worried about a foreign vote.” Next came Harvard Law Professor Jack Goldsmith, who, writing for Lawfare, provocatively asked, “Is there a principled basis on which the United States can object to the Russian interference?” Goldsmith continued, “U.S. interferences abroad raise the question: What is the U.S. objection in principle if others do to us as we do to them?”

Americans are obsessed with protein. It’s touted as the cornerstone of any healthy diet, since it helps people feel full and builds muscle. But most Americans eat too much protein every day, according to federal estimates—and they’re going especially overboard with animal proteins, namely red meat. ...Switching to beans means big gains for health, since they’re rich in fiber, iron, potassium and amino acids, as well as protein. They’re great for the planet too: a 2017 paper published in the journal Climactic Change predicted that the U.S. could achieve up to 74% of its greenhouse-gas-reduction goals by 2020 if Americans would just start eating beans instead of beef. “Beans really fit that profile of being the best available replacement for beef, at least in terms of minimum environmental impact and maximum health impact,” says [HLS Animal Law & Policy Program Fellow] Helen Harwatt, an environmental social scientist at Harvard and co-author of the paper. Livestock farming accounts for about 15% of all greenhouse-gas emissions, but beans take far less energy to produce and harvest—and they’re much less expensive than meat and most meat substitutes.

Why are more immigrants trying to avoid deportation by taking sanctuary in Philly than any other major city in the U.S.? Reporters Laura Benshoff and Jeff Gammage answer that question in a two-part series on WHYY’s The Why, in partnership with The Philadelphia Inquirer. ...Asylum initially grew out of the Holocaust and the Cold War, the first underscoring the need for international human-rights protections, the second revealing a useful foreign-policy tool. Accepting the fleeing citizens of its enemies served humanitarian ends and gave America legitimate reason to gloat on the world stage. On the other hand, people running from governments friendly to the U.S. had a difficult time getting asylum, according to Deborah Anker, a law professor at the Harvard Law School Immigration and Refugee Clinical Program.

During the last presidential election, four of Washington's Democratic Electors broke their pledges to represent the state's popular vote and, instead, cast their electoral votes for candidates other than Hillary Clinton.  Three electors voted for former Secretary of State Colin Powell, as a Republican compromise candidate, as part of a national effort urging Republican electors nationwide to do the same. A fourth elector voted for Faith Spotted Eagle, an elder in the Yankton Dakota tribe. ...KUOW spoke too the trio's attorney, Harvard professor Lawrence Lessig, who is asking the court to overturn their fines.  "We think it's pretty clear, under the Constitution, that Washington's not allowed to do that because these electors, though selected/appointed by Washington, are actually acting to perform a federal function and can't be controlled by a state," Lessig said. Lessig told KUOW he hopes the issue is settled ahead of the 2020 presidential election to prevent further confusion.

An op-ed by Cass Sunstein: By all accounts, William Barr, President Donald Trump’s nominee for the position of attorney general, is a lawyer of integrity, decency and competence. For that reason, his memorandum of June 8, 2018, raising serious constitutional doubts about Robert Mueller’s investigation, is baffling -- a genuine head-scratcher. It is important to understand exactly why. Barr has legitimate concerns. The legal definition of “obstruction of justice” is far from clear. Under federal law, a person is guilty of obstruction if he corruptly: (1) “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding,” or (2) “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Barr is deeply worried about the meaning of (2).

An op-ed by Noah Feldman:  Since President Donald Trump took the oath of office two years ago, a big question has been whether the 230-year-old Constitution is capable of meeting today’s challenges. Judging by his willingness to flout it — for example by threatening to declare an emergency and spend money without Congress’s approval — Trump’s answer seems to be no. Meanwhile, a corresponding skepticism of the Constitution’s vitality may be emerging among Democrats, fueled by factors such as Trump’s assertiveness, an acknowledgment of the Framers’ racism and a sense of stagnated progress. Take a look at a recent Washington Post interview with Beto O’Rourke, the former Texas congressman, in which he posed “the question of the moment” and asked non-rhetorically: Does this still work? Can an empire like ours with military presence in over 170 countries around the globe, with trading relationships … and security arrangements in every continent, can it still be managed by the same principles that were set down 230-plus years ago?

Dear President Xi Jinping, We, the undersigned scholars, former diplomats and others with an interest in understanding China and building bridges, are deeply concerned about the recent detentions of Canadian citizens Michael Kovrig and Michael Spavor. We request that you immediately release Mr. Kovrig and Mr. Spavor so that they may be reunited with their families. Many of us know Michael Kovrig through his work as a diplomat in Beijing and as the senior expert for Northeast Asia at the International Crisis Group, an organization whose mission is to “build a more peaceful world.” In both roles, Mr. Kovrig regularly and openly met with Chinese officials, researchers and scholars to better understand China’s positions on a range of important international issues. Michael Spavor has devoted his time to the task of building relationships between North Korea and China, Canada, the United States and elsewhere. ... ACADEMIC COMMUNITY Ako, Tomoko. Associate Professor, Graduate School of Arts and Sciences, The University of Tokyo; Alford, William P. Vice Dean, Graduate Program and International Legal Studies, and Director, East Asian Legal Studies Program, Harvard Law School; Almén, Oscar. Research Fellow, Department of Government, Uppsala University ...

Disinformation and propaganda spread by media have long been a staple of politics. But the 2016 elections raised new questions about the role of new media. What role did the interplay of new and old media play in getting authoritarian demagogues elected? How do new media platforms supercharge the spread of conspiracy theories and false ideas? Is there something different about the way Facebook and Twitter spread hate and lies? How can we stop them from doing so? Yochai Benkler and his co-authors Robert Faris and Hal Roberts have amassed reams of data tracing how extreme propaganda and disinformation seeped from the edges to the center of U.S. discourse in 2016. Much of this was done via social media platforms, of course, but the authors of Network Propaganda explain how Breitbart and Fox News also played a pivotal role in disseminating extreme ideas to a broad swath of the U.S. population.