Media Mentions

President Trump has remade what it means to be presidential, with his typo-filled tweets and angry rants. He’s molded the Republican Party in his form, pulling it close to the white men who’ve felt their cultural dominance erode. Now he’s turning to the Supreme Court, where he hopes to seat a justice with a long Republican resume — a nominee who, in an emotional bid to save his nomination, last week displayed the very same combative, grievance-fueled thinking of which Trump is so fond...“A lot of us who were not used to seeing that kind of thing from a judicial nominee were very jolted by it,” Jeannie Suk Gersen, a professor at Harvard Law School, said of Kavanaugh’s fierce denial of the accusations. “It’s just like President Trump broke the mold in what it means to have a presidential persona,” Gersen added. “It is possible that Judge Kavanaugh’s performance is going to break the mold — it did break the mold — for future judicial nominees and the realm of acceptable nominees has just changed.”...“People say that everything that Trump touches dies, and we can only hope that the independence of the judiciary can withstand the onslaught of what Kavanaugh would represent,” said Laurence Tribe, a Harvard law professor who, while a well-known liberal, said he kept an open mind to the Kavanaugh appointment initially out of respect for a colleague. Kavanaugh is a law lecturer at Harvard’s law school. “The display we saw during [Thursday’s hearing] convinced me that the court will really be in trouble if he’s confirmed,” Tribe said.

An op-ed by Nancy Gertner. I was in a taxi enroute to the O’Hare Airport in Chicago Thursday afternoon. I had watched Christine Blasey Ford testimony in the morning. I was extraordinarily moved; I believed her, plain and simple. I thought that at the very least, there would be no rush to judgment on the part of the Senate — no confirmation vote until all of the circumstances of her accusation and others had been investigated. I asked the driver to turn to a station broadcasting the confirmation hearings so that I could hear Judge Brett Kavanaugh’s response. At first, I thought that the driver had turned to the wrong station. The man speaking sounded like a talk radio host, angry, spewing heated rhetoric about the Democrats, even the Clintons, referring to bizarre left wing conspiracy theories. I then realized that this was not a shock jock; this was Judge Kavanaugh. Kavanaugh’s performance at that hearing alone should be disqualifying.

While Republicans work furiously to salvage Judge Brett M. Kavanaugh’s nomination to the Supreme Court, there’s another position he may be struggling to hold on to: lecturer at Harvard Law School...“The Supreme Court confirmation fight has brought into sharp focus questions about sexual assault, fair process, fitness and character for high office, the integrity of the political process, and more,” [John] Manning wrote. “I appreciate the many students who have spoken out and expressed views on these critical issues.”...“This personnel matter is very personal to us,” said Sejal Singh, a second-year student at Harvard Law. “...“Certainly, someone who is not fit to serve on the US Supreme Court is not fit to teach at Harvard Law School,” said Alyx Darensbourg, a second-year student from Bakersfield, Calif.

As the showdown over Supreme Court nominee Brett M. Kavanaugh’s confirmation continues to grip the country, Harvard Law School students are not letting up in their efforts to prevent Kavanaugh — who teaches at the school — from reaching the nation’s highest court. The Pipeline Parity Project — a Law School student advocacy group — and the Law School Democrats have organized phone banks in concert with Planned Parenthood this week to rally voters in key states to call their senators and tell them to vote no on Kavanaugh’s confirmation...Second-year Law student Emma R. Janger, a member of the Pipeline Parity Project and one of the organizers of the phone banks, said the phone banks offers students a way to translate their frustration into action. “People are really, really energized and they really want to push their senators on this and that’s been just honestly, really energizing to hear,” Janger said. “I think sometimes this has kind of felt like a pretty hopeless week but talking to people who are in a position to really affect their senators’ votes and hearing how energized they are is giving me personally a lot of hope.”

...Within the legal profession, [David] Boies was already a legendary figure. But Bush v. Gore gave him a taste of national celebrity. ...“I’m disappointed by how far he seems to have moved toward the dark side,” says Laurence Tribe, the liberal Harvard Law professor who was Boies’s co-counsel on Bush v. Gore. Then again, maybe the great David Boies was comfortable on the dark side all along.

An op-ed by Diane Rosenfeld. Does the law hear women? This week's dramatic -- and traumatic -- Senate hearing on Judge Brett Kavanaugh's nomination to the Supreme Court demonstrated that society and its leaders silence women, either with a hand over their mouth or by simply not listening to them. The details of the hearing illustrate how badly broken the system is in addressing sexual assault claims.

...“As a Supreme Court justice, Kavanaugh would not be bound by the rules applicable to judges on the U.S. Court of Appeals with respect to recusal,” says Harvard law professor Laurence H. Tribe. For lower-court judges operating under those guidelines, Tribe argues “there is a very strong argument that Kavanaugh’s intemperate screed attacking liberal groups and spinning conspiracy theories when he testified on Thursday afternoon now requires him to recuse in any case where such groups appear before the Court of Appeals on which he sits.” Tribe continues, “For him to remain on a three-judge panel that sits in judgment on any legal claim affecting such a group would obviously create at least the appearance of a conflict of interest and probably an actual conflict.”

Harvard Law School’s Cyberlaw Clinic has urged the Ninth Circuit not to touch a lower court decision ending a corporate landlord's lawsuit accusing Airbnb of helping tenants break building rules and host rowdy guests, saying that a revival of the suit could undermine Communications Decency Act protections of internet startups. The law clinic’s friend of the court brief, filed Thursday and written on behalf of nonprofit technology policy group Engine Advocacy and Santa Clara University School of Law professor Eric Goldman, opposes a bid by Apartment Investment and Management Co. to revive the suit based on Aimco’s argument that the Central District of California was wrong to conclude that Airbnb Inc.’s home-sharing website was immune from the suit under Section 230 of the Communications Decency Act of 1996.

An op-ed by Cass Sunstein. These are not the best of times for the U.S. Supreme Court. But whether or not Judge Brett Kavanaugh is ultimately confirmed, and despite the intense heat of the moment, the court’s fundamental legitimacy need not be, and should not be, put in question. For well over two hundred years, the Supreme Court has helped commit the nation to the supremacy of law. That commitment is a precious achievement. It safeguards liberty, and it holds off authoritarianism.

Frontline: Trump’s Showdown (Tuesday, PBS, 10 p.m.) is your life jacket. A two-hour special report, it brings coherence to an incoherent narrative. It steps away from the panels of pundits on CNN or Fox News who simply want to pummel other opinions. It does, mind you, have some familiar faces from those panels. But, it being PBS, this is a lengthy commercial-free analysis. Its agenda is to straighten out the tangled tale and prep viewers for what will probably happen next. That is, the showdown...While few talk openly about a looming constitutional crisis, that idea is advanced. "One thing we know about this president, he doesn’t care about collateral damage. And he doesn’t care about collateral damage on associates. And he doesn’t care about collateral damage on American institutions. And so the stakes could not be higher,” says Jack Goldsmith, assistant attorney-general during the George W. Bush administration.

However, there are many factors that influence how successful makers are at moving through that timeline, and a new report from Harvard Law School’s Food Law and Policy Clinic digs into one that doesn’t get a lot of attention: state laws that regulate the sale of small-batch foods made outside commercial kitchens. “Cottage Food Laws in the United States” provides a comprehensive overview of how states create legislation and regulations related to cottage foods, common elements from state to state (like which foods are allowed and sales limits) and recommendations to strengthen laws...Emily Broad Leib, director of the Food Law and Policy Clinic and one of the authors of the report, said that New York’s law is generally supportive of cottage food producers and has eliminated most big barriers. “For example, New York is one of only a dozen states that allows for some wholesale sales of cottage food products, and one of 17 states that explicitly allow for online sales, which 13 states explicitly prohibit. It is also more permissive than many states by not setting an annual gross sales limit,” she said.

In 2007, a year before Cass Sunstein published Nudge with Richard Thaler, two law professors from Vanderbilt coined a term meant to bring attention to Sunstein’s astonishingly prolific nature: the Sunstein number. Modeled after the Erdos number, which gave anyone who collaborated directly with the famously productive mathematician Paul Erdos an Erdos number of 1 and anyone who wrote with one of his co-authors a number of 2, the Vanderbilt authors found 57 scholars with a Sunstein number of 1, and 768 with a 2. Though we at the Behavioral Scientist haven’t counted again ourselves, we bet those numbers have since skyrocketed—especially since Sunstein has written 22 (!) books since Nudge. Sunstein is a potent blend of scholar and scientist—an intellectual who is perpetually testing and sharpening his own theories through the collaborative process. And that includes his theories around nudging and behavioral science in policy. This fact made him the ideal person to talk to about nudging then, now, and in the future. Plus, he just wrote another book, called The Cost-Benefit Revolution. Below is our edited email exchange.

An op-ed by Noah Feldman. As of the lunch break in Thursday’s Senate hearing on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, it seems as though Republicans’ worst fears are being realized: Christine Blasey Ford is highly credible in describing her alleged sexual assault by the teenage Kavanaugh. Nothing in the ineffectual questioning by sex crimes prosecutor Rachel Mitchell did anything to shake her story...you might think it’s obvious that President Donald Trump should withdraw Kavanaugh’s nomination and substitute another nominee, such as Judge Amy Coney Barrett, who was on his short list. But because this is Trump, the usual political rules don’t apply.

Donning pink pins and hoisting handmade signs, Harvard students huddled at viewing parties across the University Thursday to watch an extraordinary Senate hearing which saw Supreme Court nominee Brett M. Kavanaugh and Christine Blasey Ford, the Palo Alto psychology professor who has accused him of sexual assault, offer dueling — and compelling — versions of the truth...The day of the hearing, the Harvard Law Student Alliance for Reproductive Justice held a screening in a classroom closed to the press. Haley R. Adams, a second-year Law School student who attended the screening, said in an interview during a break in the proceedings that she sympathizes with Ford. “I don’t want to speak for all women but I think that most of us can probably see ourselves in that experience,” Adams said. “Maybe not in quite as formal as a setting, but in a situation in which we are trying our best to convey an experience and being doubted and questioned, and it’s really horrifying to watch and it’s exhausting.”...Second-year Law student Sejal Singh — one of the four authors of a Harvard Law Record article that called on the University to ban Kavanaugh from teaching — said she was disappointed that Harvard professors have not sent a similar letter to the Senate.

An essay by Jeannie Suk Gersen. Christine Blasey Ford has credibly testified that Brett Kavanaugh attempted to rape her in high school. But many who believe that she is telling the truth are still wondering whether senators should decide how to vote on Kavanaugh’s Supreme Court nomination based on her testimony, in the absence of any “corroborating evidence.” Let’s put aside for a moment the possibility that additional evidence could emerge that supports or undermines Ford’s testimony. In a court of law, a judge or jury who believes that a witness is telling the truth can convict someone of a crime even without corroborating evidence. This happens all the time.

An essay by Jeannie Suk Gersen. A Senate confirmation hearing for a Supreme Court nominee is a political affair, not a court proceeding. But when the topic is alleged criminal wrongdoing by the nominee, the distinction can start to blur. We, the public, may feel more like a jury considering evidence than a boss considering an applicant for an important job. Thursday’s hearing, with testimony by Brett Kavanaugh and Christine Blasey Ford, was supposedly intended to reveal whether there was truth to Ford’s allegation that Kavanaugh attempted to rape her, by providing testimony from each of them under oath. But the Senate Judiciary Committee’s focus on whether Kavanaugh did what he was accused of gave way to partisan recriminations about whether the process for considering that question was fair. The damage to the legitimacy of the Supreme Court and the Senate confirmation process is incalculable, whether or not Kavanaugh is confirmed.

An op-ed by Noah Feldman. The Senate Judiciary Committee hearing Thursday, when Supreme Court nominee Brett Kavanaugh and his accuser Christine Blasey Ford will both face questions about her accusations of assault, is going to be hard to watch for different reasons for different people. The cognitive dissonance stems from the fact that the hearing is functioning on two levels that coexist uncomfortably. On one level, the hearing will be a televised capsule of the #MeToo moment, considering allegations of sexual assault against a significant public figure. On another level, the hearing will be pure political theater, one act of many in these hyperpartisan times.

...Mark Wu, a Harvard Law School professor and former US trade official, said that despite previous US administrations’ complaints, some member countries have been “perfectly happy to let the rules stay as they have been, to the disadvantage or dismay of the US”. “Obviously this administration is taking a very different tack” to previous administrations, said Wu, who was the USTR director for intellectual property from 2003-04. He currently sits on the advisory board of a WTO programme that promotes the understanding of trade among academics and policymakers in developing countries.

In the middle of his lengthy news conference Wednesday at the United Nations General Assembly, President Trump made a somewhat new concession about his conduct vis-a-vis the Russia investigation. “There was no collusion, there was no obstruction,” he said. “I mean, unless you call ‘obstruction’ the fact that I fight back. I do fight back. I really fight back. I mean, if you call that obstruction, that’s fine. But there’s no obstruction, there’s no collusion.”...“I think it would be a real stretch for anyone to include this as evidence of ‘corrupt intent’ or anything like that,” said Harvard Law School professor Mark Tushnet. “On its face, it’s a statement that he is developing a vigorous defense against what he regards as unjustified allegation, and any potential defendant has the right to mount a vigorous defense, and then to tell people that’s what he’s doing.”

As of this moment, it is unclear if Deputy Attorney General Rod J. Rosenstein is going to remain in office until the midterms, resign or be fired. If Republicans don’t retain the Senate, there is no telling who would replace him after that. The terms of his departure matter quite a lot. An impressive cross-section of lawyers, ex-governors, Republican loyalists and scholars wrote to Rosenstein this week, essentially pleading with him to stay to continue oversight of the investigation by special counsel Robert S. Mueller III...Another signatory, Laurence Tribe, tells me that how Rosenstein leaves is important, too. “Rod Rosenstein has been a vital defender of our constitutional republic. He is likely to face enormous pressure to cut and run,” he says. “But the man whose dedication to law I have long admired is better than that. If he is to be displaced by a partisan hack, he must make clear that it’s the president who is shoving him aside.”

According to Professor Michael Klarman “it is important to tell the story of the Constitution’s origins in a way that demystifies it. Impressive as they were, the men who wrote the Constitution were not demigods; they had interests, prejudices, and moral blind spots.” Invocations of divine inspiration for the Constitution by supporters of ratification were, at least in part, a conscious political strategy to maximize the chances of ratifying it.