Media Mentions

An op-ed by Noah Feldman: President Donald Trump in a meeting with congressional Democrats on Friday said he was prepared for the partial government shutdown to continue for months — or even years — if he doesn’t get the money he wants for a wall along the Mexican border. It’s not hard to see how that prediction comes true. Both sides have framed the issue such that a victory for one side on funding a border wall entails defeat for the other. Neither side has much incentive to compromise. Suppose Trump is right. The longest shutdown on record is 21 days, from late December 1995 to early January 1996. (This is the 21st in the modern era.) What would a much longer shutdown mean for U.S. political life?

Two weeks into a partial government shutdown triggered by an impasse over the money President Donald Trump demanded for his promised border wall, Trump said he could declare a state of emergency and build his wall without congressional approval. ... "The Department of Defense has funds in its account that are not specifically designated for anything. Congress gives them money and says we don't know what’s going to happen over the next year — here’s 100 billion," Harvard Law School Professor Mark Tushnet told NBC News, guessing at an approximate funding amount. “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground,” he added.

EPA's polarizing new plan to scrap the legal underpinnings for Obama-era mercury standards traces a piece of its history to Brett Kavanaugh. ... Legal experts say Kavanaugh's 2014 dissent while on the U.S. Court of Appeals for the District of Columbia Circuit features prominently in the Supreme Court's final decision and may have persuaded the justices to take up the dispute in the first place. "Judge Kavanaugh's dissent ... struck me and many others as resembling a petition to the Supreme Court for certiorari," said Joe Goffman, executive director of the Harvard Environmental Law Program and a former Obama EPA official. "If anything, then, his dissent may have had an impact in the Court's decision to take up the question in the first place."

When you see publishers and authors chatting chummily at book parties, you’re likely to think that they’re on the same side — the side of great literature and the free flow of ideas. In reality, their interests are at odds. ... Jeannie Suk Gersen, a Harvard Law School professor who writes regularly for The New Yorker, a Condé Nast magazine, read the small print, too, and thought: “No way. I’m not signing that.” Ms. Gersen, an expert in the laws regulating sexuality, often takes stands that may offend the magazine’s liberal readers, as when she defended Education Secretary Betsy DeVos’s rollback of Obama-era rules on campus sexual-assault accusations. When I called Ms. Gersen in November, she said, “No person who is engaged in creative expressive activity should be signing one of these.”

An op-ed by Lawrence Lessig: It feels quaint–maybe a bit absurd–to remark the fact that Donald Trump has no constitutionally moral justification for his demand that Congress fund the building of a wall on the Mexican border. Such an argument feels absurd when made against this president. Yet it should not be insignificant to Congress.

An op-ed by Jack Goldsmith: Daniel Hemel and Eric Posner have harshly criticized William Barr’s memo on Special Counsel Robert Mueller’s obstruction of justice theory. They say (in the New York Times) that the memo “seriously damages [Barr’s] credibility and raises questions about his fitness for the Justice Department’s top position” and (later, on Lawfare) that the memo is “poorly reasoned.”

The day before Alexandria Ocasio-Cortez, 29, officially took office in Washington as the youngest woman ever elected to the House of Representatives, video footage from her college days suddenly appeared on the internet. If the video showing her dancing and twirling barefoot on a rooftop was meant to be an embarrassing leak, it backfired badly. ... And Lawrence Lessig, a professor of law at Harvard Law School, had been using Ms. Ocasio-Cortez’s video among other “Lisztomania” and “Breakfast Club” mash-ups to illustrate the concept of fair use in his lectures, he said in an email on Friday.

An op-ed by Noah Feldman: We go through life thinking the First Amendment is followed in the U.S. In practice, that isn’t always true. A case in point is that of Gunther Glaub, who is about to go to prison for a quirky protest in which he sent the bill for his new Chevrolet Camaro to the U.S. Department of Agriculture — and scribbled on it, “Thank you for paying this debt.” Astonishingly, prosecutors went after Glaub on the theory that sending the government this invoice and a few other bills, including one for his wife’s student loan and another from his credit union, violated the federal law against submitting false claims to the government.

Two Harvard efforts are helping craft policy before the shift gains speed. ... There is broad understanding that many pivotal issues facing the world—such as climate change, immigration, and labor shortages—are intertwined, and changes in one can affect another. The shifts don’t develop in isolation. Harvard Law School Professor Susan Crawford understands that the rise of autonomous vehicles will be no different. To properly prepare the students who will not only have to adapt to these technologies but someday help shape them, their education cannot happen in isolation either. So when Crawford, the John A. Reilly Clinical Professor of Law, designed her class “Autonomous Vehicles and Local Government Lab,” she made sure that its 80 students would be exposed to an interdisciplinary effort from a range of Schools, ensuring students would learn from each other.

In a major win for labor advocates, a federal court issued a long-awaited ruling last week finding that corporations could be held responsible for issues like wage discrimination or illegal job termination, even if the employees were subcontractors or working at a franchised company. ... The appellate court decision could have implications for the new rule as well. “I think it’s really hard to see how the board goes forward with its proposed rule now,” said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School.

Hours before the 116th Congress began, Rep. Nancy Pelosi (D-Calif.) made clear she’s prepared to respect, even defend, the rule of law. In an interview broadcast Thursday morning on the “Today” show, Pelosi was asked whether she believed special counsel Robert S. Mueller III should honor decades-old Justice Department guidance, which suggests a president should not be indicted while in office. “I think that that is an open discussion in terms of the law,” said Pelosi, who became House speaker later in the day. She is now the highest-ranking government official to openly state what many experts have discussed for months. ... "There are some experts who continue to believe the Constitution might at least require postponing any criminal trial until the president is out of office,” Harvard Law professor Laurence H. Tribe told The Washington Post. So some have suggested alternatives. Tribe, for instance, said that if indicted, a president’s criminal trial could be postponed until the end of his term.

An op-ed by Ryan Manucha '19: Let Canadians remember 2018 as the year that Gérard Comeau delivered to his fellow citizens a true gift: consumer freedom. When the Supreme Court of Canada ruled against the resident of Tracadie, N.B., in his bid to fight the fines he incurred for bringing alcohol across the border from Quebec, he may have lost the battle. But he would go on to win the war – not just for himself, but for all beer-loving Canadians.

An op-ed by Cass Sunstein: The Oscars were first presented in 1929. The Behavioral Economics Oscars, known throughout Hollywood as the Becons, did not appear until 2012. But as the iPhone is to the rotary phone, and as Lady Gaga is to Dean Martin, so are the Becons to the Oscars. After months of careful deliberation, the top-secret committee has finalized its choices. Here are the Becons for 2018.

An op-ed by Simon Hedlin '19: Over the holidays, President Donald J. Trump has taken to Twitter to respond to Defense Secretary James N. Mattis’s resignation letter. The retired general wrote that his “views on treating allies with respect and also being clear-eyed about both malign actors and strategic competitors are strongly held and informed by over four decades of immersion in these issues.” Trump tweeted that he gave Mattis “a second chance” even though “[s]ome thought I shouldn’t.” The president further countered that our allies are not important “when they take advantage of [the] U.S.” He then announced via Twitter that Mattis would leave office two months earlier than originally planned. The following day Trump tweeted that “countries take total advantage of the U.S.” and that “Mattis did not see this as a problem.”

Drugs that can cure hepatitis C revolutionized care for millions of Americans living with the deadly liver infection. The drugs came with a steep price tag—one that prompted state Medicaid programs to initially limit access to the medications to only the sickest patients. That eased, however, in many states as new drugs were introduced and the prices declined. But not in Puerto Rico: Medicaid patients in the American territory get no coverage for these drugs. ... “You know, we do not deny lung cancer treatment for a person who smokes or diabetes treatment to a person that doesn't eat well,” says Robert Greenwald, a professor at Harvard Law School and faculty director of the Center for Health Law and Policy Innovation.

A New York Times analysis, based on research from Harvard Law School, Columbia Law School and other sources, counts nearly 80 environmental rules on the way out under Mr. Trump. Our list represents two types of policy changes: rules that were officially reversed and rollbacks still in progress.

... This week, the drama intensified, when the Supreme Court signaled an interest in the case. In a court order issued Sunday, Chief Justice John Roberts granted a stay to the contempt finding, and requested briefings on the case by December 31. Before the Supremes had a chance to weigh in, we had asked our panelists: What’s going on in the mysterious case? And what does it tell us about the direction of the Mueller probe? ... Alex Whiting, professor at Harvard Law School, and former federal prosecutor with the Criminal Section of the Civil Rights Division and the US Attorney’s Office in Boston: From the few clues that we have, it seems likely that the subpoena at issue pertains to the Mueller investigation, but it is difficult to know what corporation or company it involves. And that is perhaps what is most striking about this episode: it underscores the broad reach and scope of the Mueller investigation.

The U.S. Supreme Court doesn’t return to the bench for arguments until Jan. 7, but that doesn’t mean work stops. ‘Tis the season for applications, and specifically, Trump applications. Applications? At certain times of the year, the high court seems to be a magnet for highly charged emergency requests. ... Nearly 60 years ago, Justice William Brennan Jr. took the unusual step of hearing oral arguments in his chambers at the court on a school district’s application for a stay of a desegregation order. Brennan, according to his former clerk Frank Michelman of Harvard Law School, welcomed the lawyers into his chambers, listened to the arguments and then “effortlessly” wrote an order denying the stay request.

... Until now, the publishing house that still bears Knopf’s name has held the North American copyright on the title. But that will change on Jan. 1, when “The Prophet” enters the public domain, along with works by thousands of other artists and writers, including Marcel Proust, Willa Cather, D. H. Lawrence, Agatha Christie, Joseph Conrad, Edith Wharton, P. G. Wodehouse, Rudyard Kipling, Katherine Mansfield, Robert Frost and Wallace Stevens. ... When the first Copyright Act was passed in the United States in 1790, the maximum term was 28 years. Over the decades, lawmakers repeatedly prolonged the terms, which now stretch to over a century for many works. “It’s worse than the tax code,” said Rebecca Tushnet, an intellectual property expert at Harvard Law School. “The copyright term is way too long now.”

After two years of the Donald Trump presidency, the national stores of civic goodwill are depleted. That could make for a testy 2019, because it appears that the country’s defining political tensions are about to break into open clashes. ... “I think the biggest question is, is he going to present evidence that Trump committed crimes?” said Alex Whiting, a Harvard law professor and former prosecutor on the international criminal court. “Either obstruction of justice or collusion. He wouldn’t bring an indictment because justice department policy won’t permit it. But whatever evidence would be handed off, I think, to the Congress, and it will have to be considered. That’s as big as it gets. I think that’s really – that’s the ultimate question.”

The use of AI applications in this domain is so widespread that it is now possible to produce solutions for almost all professional groups. Medicine, education, automotive, defense, agriculture, automation, energy, natural sciences, finance, art, and law! ... The most important part of the success of these studies is that the data is regularly found in digital media. Harvard Law School recently shared the 360-year-old case law of the United States of America according to each of the states with AI developers on the online platform. This is an important resource for speeding up the work. But the biggest obstacles for natural language processing are language-specific rules and the need for such resources in all languages. The developments in English are quite bright because most of the data is regularly available in this language.