Media Mentions

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.

“Drain the swamp!” was one of those memorable Donald Trump campaign promises that remains unfulfilled, much like “Mexico will pay for the wall!” and “Repeal and replace Obamacare!” with “something terrific!” Unlike the latter two promises, there’s little debate about the need to establish strong ethical standards for government. That makes President Trump’s failure to keep his swamp-draining pledge — highlighted by the Senate confirmation hearing Wednesday for a former coal industry lobbyist nominated to run the Environmental Protection Agency — all the more disturbing. ... After more than a decade working for the Senate’s premier denier of human-caused climate change, James Inhofe of Oklahoma, Wheeler joined a consulting firm working against environmental restrictions on behalf of his top client, coal magnate Robert Murray. “He’s spent his career carrying out someone else’s agenda,” Joseph Goffman, executive director of Harvard Law School’s environmental law program, says of Wheeler.

Two couples in the wedding announcements, Hannah Diamond and Sam Feldman, and Lindsay Church and Andrew Ellis, who were all in the same Harvard Law School section, were married this weekend. Two other classmates, Habin Chung and Mark Jia, were also married (in 2017) after connecting in the class. The couples were in the same first-year section (similar to a homeroom period) called 1L, Section 6. Jon D. Hanson, their torts professor, who is also responsible for supervising and orchestrating intellectual and social activities, leads the section. Professor Hanson, who has taught at the university for 26 years, weighed in on the romances with three theories. “One, there is nothing to see here,” he said, explaining that 560 students in 1L are divided into sections of 80 students each. “It’s just probability. They are arriving at a certain stage of their life. They are thinking of long-term plans and are young enough not to be committed. Love connections emerge from interaction. It happens to everyone in every section.”

It’s not just the collusion. It’s the conspiracy. Thursday evening, BuzzFeed News dropped a bombshell, reporting that President Donald Trump told Michael Cohen, his former personal attorney, to lie to Congress about the Trump Organization’s pursuit of a real-estate project in Moscow during the 2016 election, during a period in which the Russian government was seeking to aid Trump’s presidential campaign. ... “If it is true, and can be proven, that Trump directed Cohen to lie to Congress, then he has no wiggle room,” said Alex Whiting, a law professor at Harvard and a former federal prosecutor. “There has been some debate about whether acts by the president to curtail a criminal investigation can be obstruction, since he is the head of the executive [branch] … but instructing or encouraging another person to lie under oath to Congress falls outside of that debate. There is no question that it was a crime for Cohen to lie to Congress, and Trump’s role in soliciting or directing that lie makes him criminally liable as well.”

The practical realities of building new physical barriers along the US-Mexico border are bringing two cherished conservative principles into conflict — loyalty to Donald Trump and the sanctity of private property. ... Laurence Tribe, a professor of constitutional law at Harvard Law School, told me that when a private landowner is approached by a government agency that wants their land, that agency“typically gives them a deadline by which they must either sell the designated parcel of land to the federal government at the price offered by the government, or have it involuntarily taken by eminent domain at fair market value.”

An op-ed by Megan Liu '19: Comedian Hasan Minhaj dedicated the premiere episode of his Netflix show “Patriot Act” to villainizing the Asian American plaintiffs in the Harvard anti-Asian bias lawsuit. He closes out the episode by calling them “the worst kind” of American for potentially jeopardizing affirmative action. I was alarmed and dismayed at this hostile critique from one of the few politically outspoken Asian Americans in Hollywood. Minhaj’s depiction of the plaintiffs perfectly highlights how Asian Americans still struggle to find a collective voice in America’s black-and-white racial discourse.

An op-ed by Ari Peskoe, Director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program: Last week, power generation companies asked the Supreme Court to review a pair of lower court decisions upholding states' Zero Emission Credit (ZEC) programs. Nearly identical ZEC programs enacted by New York and Illinois require utilities to compensate certain nuclear plants for their emission-free power by purchasing credits that represent the environmental benefits of zero-emission energy.

From tax return processors to food inspectors, the Trump administration this week ordered tens of thousands of federal employees back to work – many without pay – at agencies involved with the most politically sensitive of issues. More than 40,000 IRS employees were told to report for work after criticisms that tax returns would not be processed in time – a development that assuredly would have sparked outrage among taxpayers. ... "There's nothing in the statute that I'm aware of, or any regulations that have interpreted the terms of the emergency exception, to include a 'Really Important Things That We Think the Government Should be Doing and Would be Really Unpopular if They Don't Do Them' exception," says Richard Lazarus, law professor at Harvard University. "I don't know how that possibly fits – but they know there will be hell to pay if people don't get their tax refunds."

An op-ed by Noah Feldman: There’s no such thing as a perfectly bulletproof judicial opinion. But the 277-page decision blocking the Trump administration from asking about citizenship on the 2020 census comes close. The opinion, issued Tuesday by Judge Jesse Furman of the U.S. District Court for the Southern District of New York, is a masterpiece of factual and legal analysis, both detailed and duplicative, that is designed to withstand an expedited appeal to the U.S. Court of Appeals for the 2nd Circuit and potential blocking or review by the Supreme Court. Its bottom line is clear: Secretary of Commerce Wilbur Ross broke the legal rules when he ordered the citizenship question to be added to the census. Whatever his real motive was, it wasn’t to find out how many noncitizens live in the U.S.