Media Mentions

Americans have the longest, most expensive and arguably most complex system of electing a head of state in the world. After all the debates, caucuses, primaries and conventions, the person who gets the most votes can still lose -- as happened most recently in 2016, when Republican Donald Trump won the White House. It’s a system that baffles non-Americans and some Americans as well, and it’s again spurring talk of change. Several Democratic presidential contenders including Senator Elizabeth Warren have called for letting voters pick their leader directly. ...Warren is among several Democratic senators who have proposed amending the Constitution to do away with the Electoral College. A nonprofit group founded by Harvard Law School Professor Lawrence Lessig has filed lawsuits in several states seeking to divide electoral votes according the share of the popular vote, instead of as winner-take-all.

An op-ed by Randall Kennedy: News reports suggest that an effort by the Cambridge School Committee to display racial enlightenment has turned into a racially discriminatory act of political repression. In January, a teacher at the Cambridge Rindge and Latin High School, Kevin Dua, sponsored a research project titled “RECLAIMING: Nigger v. Cracker: Educating Racial Context In/for Cambridge.” The project sought to explore the history and effects of racial slurs. Dua invited members of the committee to attend a discussion of the project in part because he wanted them to address an issue that surfaced when the students pursued their research: School computers blocked access to websites containing the n-word and other racial and ethnic slurs. One member of the committee who attended, Emily Dexter, listened to the presentation, participated, and volunteered to assist the students in negotiating the problem of the computer filters. So far so good. The situation presented a positive instance of public high school education: an exercise aimed at sparking curiosity about an important, albeit controversial, subject in the context of an academic setting in which students, instructors, and others could engage, hopefully, in a memorable, fascinating, edifying exchange of information and views. But then things went awry.

In a recent Q&A, Professor of Practice Samantha Power, former U.S. ambassador to the United Nations and author of the Pulitzer-prize winning 'A Problem from Hell: America and the Age of Genocide,' reflects on the tragedy in Rwanda and the lessons learned—and not learned—since.

This small town in Denmark is getting a skyscraper, and it's not the only rural town with a tower. Maybe it's not such a good idea to get rid of transit drivers after all. Street grids are great, but sometimes you need an architechtural escape....This week on the podcast, Harvard Law Professor Susan Crawford talks about her new book Fiber about fiberoptic cables.

The new Broadway play "What The Constitution Means To Me" examines the limits of the nation’s founding document, probing legal history and U.S. Supreme Court rulings to make a sobering case that the Constitution falls short of ensuring comprehensive rights for all Americans.  Playwright and star Heidi Schreck, who has written for TV shows like “Billions” and “Nurse Jackie,” paid her way through college by winning a series of speaking competitions that give the play its title. She recalls in the play that as a teenager, she was passionately committed to the virtues of the Constitution, hailing it in her speeches as a “living, warm-blooded, steaming document.”...The play garnered praise from theater critics and constitutional law scholars during an off-Broadway run last year. Harvard Law School Professor Laurence Tribe told the New Yorker magazine after seeing the earlier incarnation that the show “is something that needs a huge audience” because “what she said is extremely on-target.”  

An op-ed by Joseph Goffman and Hana Veselka Vizcarra:  Kudos to BP America for company chairman and president Susan Dio’s bold call on these pages for the Environmental Protection Agency to regulate methane, a highly potent greenhouse gas, emitted by both new and existing oil and gas operations. Double kudos to BP for walking the talk by setting methane emissions reduction targets and taking active steps to reach them in its own operations. BP’s actions, in fact, deliver a double bonus: they cut methane emissions, and they demonstrate what kinds of pollution-cutting technologies and strategies are effective and affordable. This provides lessons for other companies, and if and when the EPA heeds BP’s call and regulates methane, the agency will look carefully at BP’s experiences and successes in reducing emissions.

Less than a year ago, a Tunisian engineer with the initials K.S. traveled to the coastal town of Monastir for the weekend. While there, he began chatting with someone on Grindr, an online dating and hookup app for gay men. They met later that day at a cafe, where K.S.’s date then suggested they move on to his house. After they arrived, K.S. said, two other men appeared, beat him and sexually assaulted him with a baton while shouting homophobic insults at him. Bleeding and terrified, K.S. went to a local hospital, but was refused medical treatment without a police order. At the police station, officers were more concerned about K.S.’s sexual history than the fact that he had been gang raped. ...Khouili, a Tunisian doctor and researcher, and [Daniel] Levine-Spound, a student at Harvard Law School, delve into the murky origins of the law, which they point out has “no clear analogue within pre-colonial Tunisian law.” “Previous Tunisian penal codes, such as the Qanun Al Jinayat Wal Ahkam Al Urfya issued in 1861 under the Husainid dynasty, include no reference to sodomy or homosexuality whatsoever,” they wrote.  

An op-ed by Susan Crawford: Over the past couple of weeks, I've been reading The Uninhabitable Earth. The author, David Wallace-Wells, had me from his first sentence ("It is worse, much worse, than you think"). Wallace-Wells has done us all the great favor of clearly laying out incontestable evidence for what global warming will mean to the way we live. The book's chapters focus on humanity's ability to work and survive in increasingly hot environments, climate-change-driven effects on agriculture, the striking pace of sea-level rise, increasingly "normal" natural disasters, choking pollution, and much more. It's not an easy read emotionally. But it forces the reader to look squarely in the face of the science. Wallace-Wells points out that even though thousands of scientists, perhaps hundreds of thousands, are daily trying to impress on lay readers the urgency of collective action, the religion (his word) of technology creates a belief that, to the extent there is some distant-and-disputed problem, everything will be mysteriously solved by some combination of machine learning and post-Earth survival. We'll live in spaceships and eat lab-printed meat, and Elon Musk will fix things.I see a parallel in another big news story: the hype and enthusiasm about 5G wireless as the “thing that will make the existing [communications] model obsolete.”

Strikes have been breaking out all over the country. According to the U.S. Bureau of Labor Statistics, some 485,000 workers were involved in strikes in 2018. This was the largest number since 1986. Tens of thousands of K-12 teachers have gone on strike in Republican-dominated states such as West Virginia, Oklahoma, Kentucky, North Carolina and Arizona, but also in California, Colorado and Pennsylvania. The fever spread to hotel workers in several cities, university employees (grad students, regular staff and faculty), Lyft and Uber drivers and tech employees at Google and Amazon. ...The labor movement’s invigorated militancy reflects the spirit of the times, according to Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School. She told veteran labor reporter Steven Greenhouse, “When there’s a lot of collective action happening more generally — the Women’s March, immigration advocates, gun rights — people are thinking more about acting collectively, which is something that people hadn’t been thinking about for a long time in a significant way.”

Australia passed sweeping legislation Thursday that threatens huge fines for social media companies and jail for their executives if they fail to rapidly remove “abhorrent violent material” from their platforms.The law — strongly opposed by the tech industry — puts Australia at the forefront of a global movement to hold companies like Facebook and YouTube accountable for the content they host. ... Susan Benesch, founder of the Dangerous Speech Project at Harvard’s Berkman Klein Center for Internet and Society, said that Australia’s attempt to keep “abhorrent violent material” off the internet could face similar problems, leading to more dramatic responses from the platforms. “It would likely encourage increased censorship and takedowns by companies,” she said. “The platforms would likely move their offices out of countries that pass such laws, to protect them from prosecution.”

Lawrence Tribe, a constitutional law scholar at Harvard University, co-authored an op-ed calling on New York state Tuesday to move forward with a bill that would prevent President Donald Trump from using his pardon power to escape criminal responsibility. It noted that with Special Counsel Robert Mueller’s investigation having reached its conclusion, attention has now turned to the Southern District of New York — which is known to be pursuing cases surrounding Trump’s interests.“[It’s] easy to forget that the president, his company, his adult children and many of his close associates face potential criminal liability for business practices that trace back years,” Tribe wrote in an op-ed in the New York Daily News, co-authored by Ron Fein, the director of Free Speech for the People. “These are unlikely to be crimes of espionage or treason, but rather tax evasion, bank fraud and the like.”  

An op-ed by Cass Sunstein: Mark Zuckerberg, Facebook’s chief executive, recently raised a lot of suspicion when he argued for government regulation of his own company and other social media platforms. Some people have been skeptical of his motives, complaining that he is trying to fend off more aggressive regulation or to squelch competition. But instead of attacking the messenger, we should discuss the message on its merits. Zuckerberg’s argument is an important step in the right direction — one that should produce sustained discussion and eventually legislation. Heads of companies don’t usually contend that the government should be regulating them. But Zuckerberg rightly noted that if we were starting anew, we would not want private companies to decide, entirely on their own, how to answer the fundamental questions that social media providers are now facing. Consider the integrity of elections — a problem made most vivid by Russian interference with the 2016 U.S. presidential election.

An op-ed by Noah Feldman: In a 5-4 decision Monday, the U.S. Supreme Court refused to block the execution of a Missouri man who says the lethal injection may cause him excruciating pain because of a medical condition. The legal commentators have been out in force since, explaining the politics of the justices’ disagreement and the ever-changing technical aspects of death penalty jurisprudence. That analysis is useful, but it’s also beside the point. What’s really at stake is whether and how the Supreme Court should engage with what the late Justice Harry Blackmun memorably called “the machinery of death.” On that question the verdict of history will be clear: All nine justices have gotten it terribly wrong. And so has the Supreme Court itself. The reason is not legal, but moral. It’s morally repugnant for the justices to stage clinical-sounding debates on whether specific methods of execution are constitutional, balancing firing squads against injections, gas chambers and electrocution — all against the historical backdrop of hanging.

The Second Circuit unanimously overturned a U.S. Tax Court decision that had denied a retired Connecticut woman her tax refund, saying Tuesday that the ruling had resulted in differential treatment of taxpayers that Congress had intended to avoid. People who file a tax return before receiving a deficiency notice are usually allowed to go back three years before the notice was mailed to them to seek a refund or credit of overpaid income taxes. Those who do not file a return before receiving a deficiency notice were restricted to a two-year look-back period until 1997, when Congress enacted language permitting a refund or credit if the Internal Revenue Service issues the notice “during the third year after the due date (with extensions) for filing” a tax return. ... The case had attracted the attention of law professors T. Keith Fogg and W. Edward Afield, of Harvard Law School and Georgia State University, respectively, who filed a brief advising the Second Circuit that the “(with extensions)” language should add to the time period for awarding a refund, not lessen it.

Congressional efforts to reauthorize the Higher Education Act could derail Secretary of Education Betsy DeVos' attempts to finalize rules regarding Title IX and campus sexual assault. If Tuesday's Senate hearing is a barometer for how members of Congress might legislate on the issue as part of the larger higher education overhaul, the language is likely to be more measured than DeVos' proposed rules, which largely aim to bolster the rights of those accused. ...Most of the witnesses agreed that requiring a cross examination isn't necessary. "What is required is the opportunity to ask questions and I do not think it's essential to do it in a direct fashion," Jeannie Suk Gersen, professor of law at Harvard Law School, said, regarding due process. "I think that as long as there is an opportunity to put questions to the other side through a neutral party, that's enough."

Campus sexual assault should be addressed in the reauthorization of the Higher Education Act, U.S. senators emphasized during an education-committee hearing on Tuesday. The question is how legislation might complement the Title IX regulations that Betsy DeVos, the secretary of education, has proposed — and, given how controversial the draft rules are, whether lawmakers can agree on what that legislation should look like. ...Jeannie Suk Gersen, a law professor at Harvard University, said the federal government should provide a basic definition of sexual harassment. But she called attention to the difference between "severe and pervasive," which is what the proposed regulations say, and her preferred definition, "severe or pervasive." That's a subtle but significant distinction, she said, that would ensure that colleges are still held responsible for investigating the kinds of sexual misconduct that can derail students' education.

A newly filed lawsuit is challenging a censorship system the government uses to ensure that millions of former military and intelligence officials spill no secrets if they decide to write articles and books after they move on from public service. ... The legality of the censorship system is “unsettled” in part because “the practice of prior restraint by the government has grown enormously” since that case was decided, said Jack Goldsmith, a Harvard Law School professor and former Bush administration Justice Department official who has cowritten several articles critical of the process. At the C.I.A. alone, the agency went from reviewing about 1,000 pages a year in the early 1970s to about 150,000 in 2014, the lawsuit said, citing documents the A.C.L.U. and Knight Institute obtained under the Freedom of Information Act. “This is a huge problem,” Mr. Goldsmith said. “The government’s system of prior restraint is wildly overbroad, undisciplined and subject to inconsistent standards. It results in lots of important information that doesn’t threaten national security not being made public. It chills people from writing things that would help people understand how the government works.”

Attorney General William Barr concluded that President Trump did not obstruct justice due to lack of evidence to prove that he committed an underlying crime. Does one have to commit a crime to obstruct justice and is it possible that a sitting president can be indicted? Here & Now's Jeremy Hobson talks with Bloomberg opinion columnist and Harvard University law professor Noah Feldman.

An op-ed by Laurence Tribeand Ron Fein: New York has a narrow window of time left to preempt potential corrupt pardons from President Trump. The state needs to act quickly — before Trump does. With Special Counsel Robert Mueller’s report finished, and Trump proclaiming that he has been “totally exonerated,” it’s easy to forget that the president, his company, his adult children and many of his close associates face potential criminal liability for business practices that trace back years. These are unlikely to be crimes of espionage or treason, but rather tax evasion, bank fraud and the like. Can Trump pardon his way out of this thicket? When a criminal scheme violates both federal and state law (as white-collar crime often does), the possibility of state prosecution offers an important safeguard to limit the effectiveness of corrupt presidential pardons. At least it’s supposed to. Under longstanding Supreme Court doctrine, state and federal governments are considered “separate sovereigns,” and each sovereign may prosecute separately without running afoul of the Constitution’s double jeopardy clause.

An op-ed by Cass Sunstein: The controversy over the delayed release of Robert Mueller’s report, including the nature and extent of the redactions, raises large questions about government transparency in general. We can make progress in answering these questions by examining an important presidential memorandum, still in effect and binding all executive agencies in the federal government (including the Justice Department, which oversees disclosure practices). The memorandum is nominally about the Freedom of Information Act, but it speaks far more broadly. It begins plainly: “A democracy requires accountability, and accountability requires transparency.” It insists that “in the face of doubt, openness prevails.”

An op-ed by Noah Feldman: The news that President Donald Trump’s administration reversed 25 security-clearance denials, as a whistle-blower has now told the House Oversight and Reform Committee, seems outrageous on its surface. For Trump critics, it’s an example of the reckless abuse of executive power over and against the recommendations of the career civil servants who issue clearances. But those critics should think twice before assuming that the denial of access to the government’s confidential or top secret information is some sort of unassailable judgment that cannot be reversed without bad motives. The clearance process is opaque to the point of being almost undemocratic. Those seeking clearance do not learn the reasoning for the decisions, nor do they have any opportunity to make objections. If you are denied clearance, you never know why — and ordinarily, neither does anyone outside the clearance bubble.