Media Mentions

An op-ed by Lawrence Lessig:  The New Hampshire Legislature, now controlled by the Democratic Party, had an extraordinary opportunity to allow voters in New Hampshire to speak more clearly in the upcoming 2020 presidential primary. Last week, the House Election Law Committee decided to keep the voters quiet. The issue is how voters will be allowed to express their preferences through their primary vote. The tradition is that voters vote for one candidate and one candidate only. The candidate who wins the most votes is then declared the winner. But obviously, in a field of a dozen candidates, “the winner” is an ambiguous idea. If one candidate gets 22 percent of the vote, and the rest get less, in what meaningful sense does that candidate represent the will of New Hampshire voters? More importantly, given the gaggle of candidates we know will run, how do voters decide whom to support? Does a vote for one candidate not likely to win waste that vote? Should the voter pick the less compelling candidate, because she believes others are likely to pick that candidate, too? This conundrum is what the system called “ranked choice voting” is intended to solve.

President Trump has a peculiar view of government in general, and of the Justice Department, specifically. He views himself as having unlimited authority over the executive branch — without regard to either constitutional or statutory obligations. It’s the “unitary executive” on steroids. Combine this with his mob-based worldview, in which he imagines that his wiseguys (e.g., Roger Stone, Michael Cohen) “fix” things just like others did for other presidents. Trump demands to know, “Where is my Roy Cohn?” The result is a reflexive, constant demand from Trump to make his troubles go away — not by cooperating, but by eliminating the key person atop the investigation. ... “As part of Trump’s ongoing corrupt pattern of efforts to deflect the federal investigation from his own criminal conduct in winning the presidency, his attempt to put a conflicted and thus legally ineligible person in charge of the [Southern District of New York-Cohen] prosecution solely to protect himself could well constitute the crime of obstruction under 18 U.S.C. Section 1505,” says constitutional scholar Laurence H. Tribe.

An op-ed by Jesse M. Fried and Charles C.Y. Wang: Senators Chuck Schumer of New York and Bernie Sanders of Vermont recently announced they would introduce legislation to prohibit a public firm from repurchasing its own stock, unless the firm first invests in employees and communities, including paying workers at least $15 per hour and offering “decent” pension and health benefits. Welcome to the newest form of virtue-signaling on Capitol Hill, in which Democratic senators demonstrate their concern for employees by proposing bills that severely restrict — or even outlaw — buybacks. The proposals are based on misleading measures of corporate capital flows, as well as on a profound misunderstanding of how the US economy works. If enacted, such bills could threaten not only the capital markets but also the workers and communities the senators claim to care about.

It’s now being widely reported that special counsel Robert S. Mueller III is set to wrap up his investigation and deliver a report to Attorney General William Barr as soon as next week. Which has raised a big question: How much will Barr disclose about Mueller’s findings to Congress? ...  “The special counsel regulations in no way restrict the fullest possible public disclosure by the attorney general of Mueller’s findings and the evidence backing them up,” Harvard Law professor Laurence Tribe told me. Tribe also noted that if Mueller has chosen not to indict Trump because of Justice Department policy protecting a sitting president, that would argue in favor of transmitting as much information as possible to Congress “for consideration in the context of possible impeachment.”

Many legal analysts who watched Donald Trump declare a national emergency over immigration on Friday thought the president had weak legal grounds for doing so. In particular, many thought Trump hurt his own case by admitting, right there in the White House Rose Garden: “I didn’t need to do this, but I’d rather do it much faster.” ... “The legality of Trump’s decision will probably turn on highly technical provisions involving the use of funds for military construction projects,” wrote Harvard law professor Cass Sunstein, a former White House official under Barack Obama. ... Jack Goldsmith, Sunstein’s colleague at Harvard and a veteran of the justice department under George W Bush, said presidents have broad leeway in declaring emergencies. “‘Emergency’ isn’t typically defined in relevant law, presidents have always had discretion to decide if there’s an emergency, and they’ve often declared emergencies under circumstances short of necessity, to address a real problem but not an emergency as understood in common parlance,” Goldsmith tweeted.

An employee suing an employer for unpaid wages can recover attorneys' fees when winning a "favorable settlement," even when a court does not sign off on the deal, according to a Massachusetts Supreme Judicial Court ruling Tuesday with potentially wide-ranging implications. ...The employees’ case was presented to the high court by Liz Soltan, a Harvard Law School student arguing as a student practitioner with the Harvard Legal Aid Bureau. She told Law360 Tuesday the court's decision might help combat wage theft, which studies have suggested may be problem costing workers in the Commonwealth $700 million annually.  “Wage theft is such an epidemic in Massachusetts, especially among low income and immigrant workers, this is the kind of ruling we needed for access to justice,” Soltan said. “I am hoping it'll mean more lawyers are going to feel secure in taking these cases.”

An op-ed by Ryan Manucha ’19: Many are familiar with the issue of impartiality in the context of international-investment arbitral panels. Less talked about, however, is how these same concerns bear on arbitrators in disputes under the Canadian Free Trade Agreement. Canada’s provinces and territories are all party to the little-known Canadian Free Trade Agreement. It is the successor to the Agreement on Internal Trade of 1994. The CFTA is a hybrid between an internal free trade agreement and a domestic multi-lateral investment treat, and it includes a dispute-resolution mechanism akin to that which can be found in most international trade and investment arrangements.

An op-ed by Noah Feldman: Justice Clarence Thomas wants to get medieval with the First Amendment. In a fascinating and bizarre opinion issued Tuesday, Thomas invoked the original meaning of the Constitution and the 18th-century common law of libel to assault a landmark freedom-of-the-press decision, New York Times v. Sullivan. Thomas’s foray won’t become the law in the immediate future. He wrote the solo opinion as the U.S. Supreme Court declined to review the case of one of Bill Cosby’s accusers, who sought to bring a defamation claim against the comedian and convicted sex offender. But it’s important as a sign of the times because it reflects distrust of the news media.  

... Eviction initiations in Massachusetts spiked in 2008, following the Great Recession. Each year since then, landlords have sued about 40,000 heads of household across the state seeking to evict them, according to data gathered by the New England Center for Investigative Reporting. The state doesn’t track how many of these have resulted in actual evictions, but the Eviction Lab at Princeton University found that in 2016, there were roughly 15,708 forced removals in Massachusetts — an average of nearly 43 a day. ...Juliana Williams, a 68-year-old retired Boston public school teacher, sits on a bench outside of Courtroom 10 one day late last year. As she waits for the judge to call her case, she has plenty of company: yellow-shirted activists from City Life, there to show support. Also there is Nicole Summers, a lawyer who works for the WilmerHale Legal Services Center of Harvard Law School, as well as a law student who is helping with her case.

On Friday, President Donald Trump declared a national emergency in order to secure funding for the border wall. The declaration has been widely criticized as a legally questionable end run around Congress, which refused to fund the border wall in full in the latest shutdown deal that Trump himself signed. Indeed, even prominent Republicans warned the president that the move could set a dangerous precedent. ... Any president who takes climate change seriously should be wary of following in Trump's footsteps and using emergency powers to address global warming, according to Joseph Goffman, the executive director of Harvard Law School's Environmental and Energy Law Program—even if the courts ultimately uphold what Goffman says is a clear abuse of Trump's presidential powers. "First of all there's a possibility that congress will try to amend or change the statute in order to limit the president's power," Goffman says, "and so a deft successor to Trump would probably want to avoid provoking that." Second, he adds, any president who understands the scale of the societal transformations that climate change necessitates, and the broad political and public support that such efforts will require to succeed, would not want to anger an entire political party through unilateral action.

Danielle Teuscher decided to give DNA tests as presents last Christmas to her father, close friends and 5-year-old daughter, joining the growing number of people taking advantage of low-cost, accessible genetic testing. But the 23andMe test produced an unexpected result. Ms. Teuscher, 30, a nanny in Portland, Ore., said she unintentionally discovered the identity of the sperm donor she had used to conceive her young child. ...I. Glenn Cohen, a professor and bioethicist at Harvard Law School, agreed and questioned whether such a contract is “contrary to public policy” and thus unenforceable. The mother of a child conceived with donated sperm might well argue that in trying to determine whether the child has any inherited medical issues, she inadvertently discovered a donor’s identity. A sperm bank likely can’t prevent her from obtaining that medical information, he said.

The recent government shutdown damaged the Internal Revenue Service, an agency already struggling with budget cuts and aging computer systems, according to the IRS’s in-house watchdog. IRS employees are working through more than five million pieces of correspondence and tens of thousands of backlogged audit responses and amended returns, according to an annual report released Tuesday. ...Also, experts expect average refunds are likely to be larger this year, but fewer people are likely to get them, which presents its own challenge for the IRS. Keith Fogg, a clinical professor of law at Harvard Law School, said Tuesday that if 1% or 2% of taxpayers shift to owing money at filing time, that can create lots of extra work for the IRS as employees negotiate installment plans and respond to collections notices.“Even people who owe only a small amount of money, if they don’t have that small amount of money, [they] are going to put a big burden on the system,” he said.  

Sixteen states on Monday filed a federal lawsuit challenging President Trump’s national-emergency declaration to pay for a wall along the U.S.-Mexico border, setting up a showdown with the administration that could go to the Supreme Court and last through the 2020 election. ...The states’ best chance could be to argue that the border wall doesn’t meet the statutory definition of a military construction project, as the president asserts, Harvard law professor Mark Tushnet said.“It’s not a slam dunk for them,” he said, “But there’s a decent chance they will ultimately prevail.”

The human body generates antibodies when it senses invasion from a harmful source. So, too, in our body politic, when a malign force such as an authoritarian executive attacks the foundation of a democracy, a healthy democracy will respond. That process of fighting a dangerous executive — President Trump — began on Friday when he declared an national emergency to justify spending that Congress had declined to authorize (a funding bill the president had signed, by the way). ...Many of these suits, as well as any brought by landowners whose property is taken to build the wall, are likely to make it past the first skirmishes on “standing.” Constitutional scholar Laurence Tribe tells me, “The House has standing to challenge the circumvention of its appropriations power under the district court’s holding in House v. Burwell [challenging Obamacare].” He adds, “Others with standing are those concretely injured by either the impending withdrawal of funds (as with states like California), the threatened uses of eminent domain (as with ranchers on the border) or the defamatory lies about their safety as communities (as with El Paso).”

An op-ed by Cass Sunstein: A full evaluation of the legality of President Donald Trump’s decision to declare a national emergency, and to order the building of a wall between the U.S. and Mexico, is best deferred until the appearance of a supporting memorandum from the Justice Department. But even now, four points are clear – and they are at risk of getting lost in the national discussion. 1. It is wrong to say that if Trump can declare a national emergency, he can necessarily order the Defense secretary to build a wall.

Many critics claim that anti-trust enforcement has dangerously weakened since the 1980s, often citing the dominance of the tech giants as evidence of this. They argue that any benefit gained from Google’s free services or Amazon’s low prices is outweighed by their chokehold on suppliers, their possession of mountains of personal data, and more. Others have noted rising concentration outside of tech: two-thirds of U.S. industries became more concentrated between 1997 and 2012. ...Horizontal shareholding therefore hurts competition because, as Einer Elhauge of Harvard Law School has argued, it reduces “each individual firm’s incentives to cut prices or expand output by increasing the costs [to shareholders, and thus managers] of taking away sales from rivals.” These issues are easy to imagine with direct investors (such as activist hedge funds) who typically have more concentrated holdings and thus greater ability to influence practices within a company or industry.

A CNN legal analyst rebuked President Donald Trump's response to recent remarks from Deputy FBI Director Andrew McCabe, calling prominent public officials critiqued by Trump "patriotic." ... Other legal scholars criticized Trump's tweets. Laurence Tribe, a professor at Harvard Law School, also called McCabe a patriot. "By Donald Trump’s ignorant and constitutionally illiterate definition of 'treason,' it’s he and not Rosenstein or McCabe who’s committing it almost daily. They are patriots. He’s the one betraying our country," Tribe tweeted.

Long controversial, the practice by which public corporations use spare cash to buy back their own stock has turned into a policy flash point for both Democrats and Republicans. The basic allegation is that profits devoted to stock buybacks — $583 billion by S&P 500 companies during the first three quarters of 2018 — are profits not plowed back into new plants, equipment or higher wages. This is especially galling now, the critics argue, given that last year U.S. corporations got a huge tax cut, whose Republican authors advertised it as a boon to productivity and investment. ... Undoubtedly, stock buybacks favor corporate executives lucky enough to cash out, but to the extent this increases inequality, it mainly favors the very rich (CEOs) over the somewhat rich (shareholders). Opponents of buybacks commonly cite figures showing that they swallowed up 96 percent of S&P 500 profits between 2007 and 2016; research by Harvard professors Jesse M. Fried and Charles C.Y. Wang, however, suggests that the actual figure is more like 41.5 percent after accounting for new stock issuance and expenses for research and development. Contrary to the concerns about diverting investment funds, U.S. nonresidential investment and job creation have been rising for most of the past decade. When shareholders get cash for their stocks, the money doesn’t disappear; it flows through the economy, often as productive investment elsewhere.

After weeks of sparring with Congress, President Donald Trump invoked a national emergency Friday in an attempt to secure money for a barrier along the United States’ border with Mexico. The declaration came a day after the passage of a bipartisan spending bill that caps funding for the wall, a key Trump campaign promise, at just under $1.4 billion.... But declarations like Obama’s have not been wielded as a means to skirt Congress over funding disputes. “This is an unusual situation … because here a president asked for something and Congress said no, essentially, and now he’s going to declare an emergency to do what he couldn’t get Congress to do,” said Harvard Law professor Mark Tushnet. “That is new.”

A farming conference will address the implications of the rise in plant-based food for the environment, land use and Britain's farmers. The Grow Green conference, held at the British Library in London on 11 April, will explore how a plant-strong future can help meet climate change targets and what policies might support a transition towards it. It will see the launch of research findings from the Animal Law & Policy Program at Harvard Law School, modelling alternative agriculture production in the UK. The research will show the impact of a shift to plant-strong farming on national food sovereignty, protected forest and heathland areas, and carbon sequestration.

Democratic lawmakers, states and others mulling legal challenges to President Donald Trump’s national emergency declaration to obtain funds to build a U.S.-Mexico border wall face an uphill and probably losing battle in a showdown likely to be decided by the conservative-majority Supreme Court, legal experts said. ...Trump is running for re-election next year and a loss would mean his presidency ends in January 2021. It is possible the legal fight over the emergency declaration might not be resolved by then. “My guess is the money, the significant amount of money, won’t flow before the 2020 election,” Harvard Law School professor Mark Tushnet said.