Media Mentions

We look back at the year in law and politics. In law, we look at President Trump's travel ban and family separations at the border before the courts. In local politics, 2018 found Massachusetts at the center of the divide in both parties. We have a Republican Centrist Governor in a GOP with little room for centrists and an all Democratic delegation in Congress poised to take new leadership while also divided over the future of their party. Guests: Nancy Gertner, former Massachusetts federal judge, senior lecturer at Harvard Law School and WBUR legal analyst.

By Annette Gordon-Reed: The documents most closely associated with the creation of the United States—the Declaration of Independence and the Constitution—present a problem with which Americans have been contending from the country’s beginning: how to reconcile the values espoused in those texts with the United States’ original sin of slavery, the flaw that marred the country’s creation, warped its prospects, and eventually plunged it into civil war. The Declaration of Independence had a specific purpose: to cut the ties between the American colonies and Great Britain and establish a new country that would take its place among the nations of the world. But thanks to the vaulting language of its famous preamble, the document instantly came to mean more than that. Its confident statement that “all men are created equal,” with “unalienable Rights” to “Life, Liberty, and the pursuit of Happiness,” put notions of freedom and equality at the heart of the American experiment. Yet it was written by a slave owner, Thomas Jefferson, and released into 13 colonies that all, to one degree or another, allowed slavery.

Three veterans who sued Massachusetts for denying them a Welcome Home bonus should receive the money, a Suffolk Superior Court judge ruled. The ruling could affect an estimated 4,000 veterans who served multiple tours of duty and received an other than honorable discharge from the final one, according to the Veterans Legal Clinic at the Legal Services Center of Harvard Law School, which represented the plaintiffs in the case.

An op-ed by Nancy Gertner and Laurence H. Tribe: Michael Flynn’s sentencing on Tuesday took a turn that no one expected—not the special counsel, not the defense lawyers, not the public. Judge Emmet Sullivan—who was initially appointed as a judge by President Ronald Reagan and promoted by Presidents George H.W. Bush and George W. Bush—announced that he would not give Flynn the sentence the parties agreed upon. Flynn’s cooperation, which special counsel Robert Mueller said deserved probation, would not outweigh the seriousness of his crimes, both charged and uncharged, which the judge believed required prison. The judge even asked whether Flynn’s actions might have amounted to treason, a question many found perplexing. It was a question that could take on a different complexion in light of the redacted material available to the judge but not to the public, given Flynn’s role as Turkey’s secret agent during the Trump transition.

An op-ed by Sanrineh Ardalan, J. Wesley Boyd and Katherine Peeler: Although this December marks the 70th anniversary of the UDHR, we feel compelled to ask whether we have made progress in realizing the principles articulated seven decades ago. Or does it feel like 1948 all over again?

Much has been made of the Justice Department’s standing opinion that a sitting president cannot be indicted while in office. That’s an opinion, not settled law, and one that is the subject of lively debate among legal scholars. ... Likewise, constitutional scholar Laurence H. Tribe posits, “Nothing in the Constitution supports treating amenability to the criminal process as something that kicks in only after a civil officer has been impeached and removed.” He argues, “To treat a sitting president as immune to that process until his presidency ends is to superimpose upon the impeachment framework—a framework designed as the way to remove a president who commits an impeachable offense that might or might not also be a federal crime—something quite extraordinary in a system priding itself on the axiom that no one is above the law.”

Within the world inhabited by President Donald Trump's strongest critics lives an audacious idea—annulment of his presidency. ... Laurence Tribe, a constitutional scholar and the Carl M. Loeb professor at Harvard Law School, noted in his book To End a Presidency: The Power of Impeachment, that although there is no provision for annulment of a presidency, the Constitution “does provide a rough approximation: Stripping the treacherous candidate of his ill-gotten gains."

Ruth Okediji, Smith professor of law, traces her enthusiasm for intellectual-property law to a childhood love of literature and storytelling. When she was seven, her family immigrated to New York City from Nigeria. “I had never heard the word ‘race’ and had never been described as a black person,” she recalls. “I just kept feeling this hostility in the private school that my parents sent me to. When I couldn’t make sense of it, I started going to the New York Public Library. The books raised me.”

Far-reaching discussions about the social impact of AI on the world are taking place among data scientists across the University, as well as in the Ethics and Governance of AI Initiative launched by Harvard Law School’s Berkman Klein Center, together with the MIT Media Lab. This intensifying focus on ethics originated with a longtime member of the computer-science faculty. ... Bemis Professor of International Law and professor of computer science Jonathan Zittrain, who is faculty director of the Berkman Klein Center for Internet and Society, has been grappling with this goal from a proto-legal perspective.

An op-ed by Noah Feldman: A federal appeals court has dismissed all complaints brought against Justice Brett Kavanaugh as a result of his confirmation hearings—because he’s now on the U.S. Supreme Court. Legally, the decision is probably correct. The federal Judicial Conduct Act, passed by Congress, doesn’t apply to the Supreme Court justices. And the Code of Conduct for U.S. Judges, adopted by the federal courts’ policy-making body, doesn’t apply to the justices either.

The United States accused China on Thursday of sustained efforts to steal trade secrets and technologies from at least 12 countries in an enormous hacking campaign – a move that deals a blow to Beijing during negotiations to ease the trade war. ... Mark Wu, a professor at Harvard Law School who studies international trade issues, questioned whether the condemnations would have any effect.

President Donald Trump signed the 2018 farm bill Thursday afternoon, ending months of congressional negotiations over the $867 billion legislation. ... Ultimately, the 2018 bill maintains most programs as they were before, said Erika Dunyak, a clinical fellow at the Harvard Law School Food Law and Policy Clinic.

An op-ed by Cass Sunstein: Most lists of the year’s best books reflect the personal tastes of those who produce them. This list is different. It’s entirely objective. What unites these six books is that nothing is rote or by-the-numbers about them. Each of them crackles with a kind of demonic energy.

An op-ed by Noah Feldman: The decision on Friday by a federal court judge in Texas to block the Affordable Care Act nationwide is a poetically perfect year-end twist in the Obamacare saga. Not since the first New Deal has a generational social change been so mired in judicial interference. Democrats on the streets may think they are pursuing the resistance against President Donald Trump. But the most effective resistance in the U.S. today is judicial resistance — in this case, by a conservative George W. Bush appointee to the signature initiative of Barack Obama’s administration.

Last month, we marked the centennial of the end of the Great War. Last week, we marked the 70th anniversary of the United Nations’ Universal Declaration of Human Rights (UDHR). In the intervening 30 years, between 1918 and 1948, human-rights violations of unimaginable scale took place, with the rise of totalitarianism and the genocidal brutality of the Second World War, in both the Pacific and European theatres, and above all in the Shoah. That the UN could pass the UDHR just a few years after WWII ended is one of the most remarkable achievements of statecraft in history. ... Later in life, I would come to know and work with Mary Ann Glendon, the Harvard Law School professor who literally wrote the book on how the UDHR came to be, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights.

The attorney general for Washington, DC said on Wednesday the US capital city had sued Facebook Inc for allegedly misleading users about how it safeguarded their personal data, in the latest fallout from the Cambridge Analytica scandal. ... State attorneys general from both major US political parties have stepped up their enforcement of privacy laws in recent years, said James Tierney, a lecturer at Harvard Law School and Maine’s former attorney general.

Nancy Gertner discusses the sweeping criminal justice reform bill passed by the U.S. Senate on Tuesday. It's called the First Step Act, and it proposes some significant changes to the federal prison system. In a rare show of bipartisanship, the Senate passed the bill 87-12, with only 12 Republicans voting no.

President Trump has weaponized tariffs to upend the global rules of international trade — but can his policies withstand the peanut butter test? On Wednesday, a three-judge panel, deliberating in a federal courtroom in Lower Manhattan, considered the most far-reaching legal challenge to the president’s aggressive use of national security to justify placing levies on steel and aluminum imports from Europe as well as from Canada, Mexico, China and other nations. ... “There are very few cases, but the precedents all suggest that Congress can delegate this authority to the president, and he has a wide discretion when it comes to issues of national security,” said Mark Wu, a professor at Harvard Law School who studies international trade issues.

... What is clear, however, is that to the extent the president has a safe harbor for prosecution during his time in office, that protection is personal to him. His relatives and his business empire don’t get that benefit. ... “Unless the Office of Special Counsel or the Southern District of New York [prosecution team] intends to indict Trump personally (or has already indicted him under seal), no claim could be made that indicting any of the Trump organizations would somehow be an abusive circumvention of what ought to be an indictment of Mr. Trump as the real party in interest and the real ‘brains,’ if you’ll pardon the expression in this context, behind those entities,” says constitutional scholar Laurence H. Tribe.

An op-ed by Lawrence Lessig: In its first act next January, the new House is scheduled to take up the most important civil rights bill in half a century. The bill signals a profoundly comprehensive understanding of the flaws that have evolved within our democracy. That it is scheduled first screams a recognition that these flaws must be fixed first, if we’re to have a Congress that is free to do the other critically important work that Congress must do. But that the bill is all but invisible to anyone outside the beltway signals the most important gap left in this most important fight to make representative democracy in America possible — if not again, then finally.

As the US Senate has invoked the War Powers Act – a 1973 law by which Congress sought an end to the war in Vietnam – as a way to disengage the US militarily from Yemen, it is relevant in this context to examine whether the executive has stepped into the sphere of the legislature. ... In this context, legal experts such as Jack Goldsmith, a former US assistant attorney general and current professor at Harvard Law School, wrote on the Lawfare blog that planned use of military force in Syria without the authorization of Congress would have set a precedent for presidential unilateralism, in part because “neither US persons nor property are at stake, and no plausible self-defense rationale exists.”