Media Mentions

An op-ed by Laurence Tribe. Only President Trump seems not to have noticed — or at least refuses to acknowledge — that the US Attorney for the Southern District of New York, in his Dec. 7 memo regarding Michael Cohen’s sentencing, has laid the predicate for indicting the president for feloniously “directing” a scheme to defraud the public into voting for him under false pretenses. Trump’s lawyers may well have advised him not to worry about that minor matter because the Justice Department policy of not indicting a sitting president will presumably be followed by all Justice Department prosecutors, including both special counsel Robert Mueller and the prosecutors of the Southern District. But what nobody seems to have noticed is that the policy in question is probably unconstitutional.

Global law firms are turning the tables on the Big Four accounting firms’ incursions into the legal industry by setting up consultancies that assist clients with non-legal matters...“Every managing partner I know of is trying to figure out how they’re going to compete with the Big Four,” David Wilkins of Harvard Law School told Bloomberg Law. “They know they’re coming.”

...Randall Kennedy: The most memorable book of the year for me was one I have read and reread at least annually over the past few years: Lee Baer’s “The Imp of the Mind: Exploring the Silent Epidemic of Obsessive Bad Thoughts.”...Adrian Vermeule: I’m somewhat at a loss, because I rarely read new books, on principle. Most are bad. Time, that piercing reviewer of books, relegates so many to obscurity; and time’s judgments often take decades to ripen. Two old books I’ve read in the past year have deepened my understanding of sovereignty—the concept from high political and constitutional theory that is much in the news and that underlies issues of elections, populism, borders and European Union membership.

Among President Trump’s major accomplishments is the booming industry in books about him, his administration, the state of democracy in America, the rise of autocracy in America and abroad, the reasons for his rise, the bases of his support, the state of the Republican Party, the state of his mental health or lack thereof, the chaos in his White House and so on. Not all are strictly about Trump — the fact is the conditions and dynamics that brought us Trump long preceded him, and the changes in the fabric of our Republic are paralleled by changes in other longstanding democracies around the globe. Two of the nation’s top public intellectuals are adding to this expansive genre with short books designed for broad audiences. Neither is fundamentally about Trump; indeed, one barely mentions the president. But both are about the America that Trump’s ascent now typifies...“America, Compromised” is by Lawrence Lessig, a Harvard law professor, the former head of the Edmond J. Safra Center for Ethics and an activist on campaign finance.

A Harvard University lecturer tentatively set the Guinness World Record on Saturday for the most amount of pull-ups in one minute. Again. Adam Sandel, 32, who lectures on Social Studies and is also pursuing a law degree at Harvard, set the record -- which he had set before -- at a fitness competition in Orlando, Fla.

Northeastern Minnesota Chief Public Defender Dan Lew sees common threads in the pretrial incarceration population at the St. Louis County Jail."The poor stay in jail, leaving aside public safety," he said. "Poverty and a bail system that doesn't consider ability to pay is the main contributor." As many jurisdictions nationwide begin to re-examine bail practices and, in some cases, implement sweeping reforms, Lew is keeping a close eye on trends and advocating for action locally...Colin Doyle, an attorney at Harvard Law School's Criminal Justice Policy Program, said it is unconstitutional to detain a pretrial defendant simply because they cannot afford to post bond. Yet he said the country has a "staggering pretrial incarceration rate" largely attributable to bail practices, many of which are built on long-standing norms that aren't codified into law. "(Reform) isn't a radical idea," Doyle said. "What the U.S. is already doing is radical. The U.S. is an outlier."

An op-ed by Max M. Schanzenbach and Robert H. Sitkoff. Trustees of pensions, university endowments and trust funds are facing renewed pressure to do social good while investing other people’s money. It isn’t only student activists but the United Nations and even BlackRock CEO Larry Fink who argue that environmental, social and governance investing, or ESG, will do good for the world while improving returns for beneficiaries. Thousands of investment managers have pledged to abide by a U.N.-sponsored statement of ESG principles. Yet the zealous push for fiduciaries to embrace ESG faces barriers under longstanding American law—with good reason. In general, the law says little about what people may do with their own money. But it has much to say about what trustees and other investment fiduciaries do with their beneficiaries’ money.

The Pipeline Parity Project — a Harvard Law School student group that has pushed law firms to remove controversial arbitration policies — celebrated again Friday after the firm Kirkland & Ellis announced it was removing the mandatory agreements for all of its employees...In an interview last week, Pipeline Parity Project Member and second-year Law student Alexandra “Vail” Kohnert-Yount said that though the firm had dropped its mandatory agreements for associates, the group continued its efforts to convince Kirkland & Ellis to drop the agreements for all employees...“We’re glad that firms like Kirkland & Ellis and Sidley Austin are doing the right thing by dropping forced arbitration for all of their employees, not just the ones with law degrees,” Vail Kohnert-Yount said, referencing another firm that also changed their policy recently.

An op-ed by Susan Crawford. When you make a phone call, I'm willing to bet you don't think of the phone line as having free speech rights of its own. That phone line has one job: getting the sound of your voice to the place you want it to go. It isn't planning to deliver a speech or getting ready to go on Broadway. Although life may be boring for the phone line as a result, it is actually getting a great deal: The phone line can't get blamed for whatever lousy thing you say during your call. But if the cable industry gets its way, internet access—today's basic utility—will be treated just like the press for First Amendment purposes, giving it a free pass in perpetuity from any governmental oversight.

Earth Day is usually an occasion for politicians to extol natural wonders and our efforts to preserve them. For Bernard L. McNamee, who today became one of the nation’s top energy regulators, it was an opportunity to praise oil and coal...Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, told Yahoo News that McNamee should be “disqualified” from handling matters related to this past work with the Department of Energy. McNamee has made no indication that he would make such a recusal.

This is the tip of a very large iceberg -- the international Trump Organization with hotels, properties and licensing deals around the globe. How many other foreign countries engaged in similar conduct that would line the president’s pockets, or granted him things of value in their country...“The three emoluments clause lawsuits hit Trump where it hurts the most: in his insatiable greed,” constitutional scholar Laurence Tribe says. He predicts, “The evidence they produce will cement the case that Donald Trump, in violation of his Oath, has been abusing his office in ways calculated to corruptly compromise his decisions about Saudi Arabia, Turkey, China, and, of course, Russia and thereby giving ruthless foreign powers hidden leverage over him as president — something our Constitution was designed to prevent.”

An op-ed by Noah Feldman. Repatriating looted art has become an everyday reality. In the last few months alone, U.S. museums returned two statues stolen from India, and Thailand made an official request for the return of 23 works in American collections. Although reasonable people can disagree about the right home for artifacts like the Elgin marbles, which Greece wants back from the British Museum, or the Koh-i-noor diamond, which India believes should be returned from the collection of crown jewels kept in the Tower of London, it’s safe to say that there is often a credible ethical claim to be made in favor of returning works to the nations from which they were once taken.

...“I think there will be a report at the end, because I think there’s a whole lot more that needs to be laid out and put together, and the whole picture presented,” said Alex Whiting, a Harvard law professor and former prosecutor on the international criminal court. “People have talked about he’s trying to get the story out through these speaking indictments and speaking informations. I don’t think that – my guess is that Mueller is just sort of doing his job and and doesn’t have some sort of grand strategy that way.”

One of the nation's largest for-profit college chains announced Wednesday that it was abruptly closing in dozens of locations nationwide, after its accrediting agency suspended approval. Birmingham, Alabama-based Education Corp. of America said it was closing schools operating as Virginia College, Brightwood College, Brightwood Career Institute, Ecotech Institute and Golf Academy of America in more than 70 locations in 21 states. The company said in October that it had more than 20,000 students, although more recent documents indicate the number may be closer to 15,000...Toby Merrill, who directs the Project on Predatory Student Lending at Harvard Law School, said students can ask the U.S. Department of Education to cancel loans if a school closes. However, that opportunity doesn't apply if a student transfers credits or if a school hires a successor to offer students classes to complete their programs.

At a time when social media affects everything from our private lives to our public discourse, the rules governing online behavior are increasingly under scrutiny. At Facebook, the process behind those rules — how they are determined, and how they continue to change — is the province of Monika Bickert, the head of global policy management. On Monday, Bickert, who holds a J.D. from Harvard Law School, joined Jonathan Zittrain, the George Bemis Professor of International Law, for a wide-ranging conversation about the social media giant’s policies and its evolution. The event, which included tough questions from audience members on the company’s recent headline-making controversies, was hosted by the Berkman Klein Center for Internet & Society.

A letter by Simon Hedlin `19. I appreciate the administration’s commitment to combating human trafficking, which Ivanka Trump discussed in her Nov. 30 column. But Ms. Trump did not properly address the most important factor causing modern slavery, which is the demand side of the equation. With respect to sex trafficking, the high demand for paid sex has made this exploitation of people’s most fundamental rights an incredibly profitable enterprise in the United States. One report found that pimps in Atlanta make as much as $32,000 per week. Law enforcement agencies should obviously continue to punish traffickers, but they are not going to be successful unless we also reduce people’s willingness to pay for sex. My own research as a public-policy researcher suggests that countries that target the demand for paid sex experience lower levels of trafficking. One successful method for reducing demand is to not arrest prostituted people and trafficking victims but instead exclusively arrest traffickers and sex buyers.

An essay by Robert Mnookin. This month poses a “December dilemma” for many American Jews, especially those in interfaith relationships. Should you celebrate Chanukah? Christmas? Or both? Many intermarried American Jews with children celebrate Chanukah, now the most popular Jewish holiday. The December dilemma focuses on whether you may also have a sparkling tree in your living room and condone additional gifts on the 25th. Today about a third of self-identified Jews report having a Christmas tree at home, according to a 2013 Pew survey.

Last Wednesday, three swastikas were found spray-painted outside the office of a Jewish psychology professor at Columbia’s Teachers College in New York City. In an interview with the Washington Post, the professor remarked that she may have been the target of anti-Semitic vandalism because “I’m a Jew at this college — one of the only ones who acts like a Jew.” Non-Jews may be confused by the meaning of the professor’s response, but Jews will know she is referring to what Robert H. Mnookin calls “The Jewish American Paradox” in his new book of that title.

If his Twitter activity is any indication, President Donald Trump is getting nervous about what's coming next out of the Mueller investigation — especially as it relates to the testimony of his former fixer, Michael Cohen, who's been cooperating with the special counsel. Legal observers have pointed to his disparaging tweet towards Cohen as potential evidence of obstruction of justice. Meanwhile, three sentencing memos are due from Mueller this week: for Cohen, former security advisor Michael Flynn, and ex-campaign chairman Paul Manafort. To discuss the latest in the Russia probe, Jim Braude was joined by...Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School.

The pair of lawsuits challenging Harvard’s sanctions rely on unusual and in some cases far-fetched legal arguments — but it is too early to know whether the complaints will be successful, experts say...Harvard Law School professor Noah R. Feldman ’92 said lawyers will have to get “creative” going forward if they hope to argue Massachusetts state law protects students’ right to join social groups. The attorneys are specifically alleging the penalties violate undergraduates’ freedom of association as guaranteed under the Massachusetts Civil Rights Act. Feldman said the freedom of association argument may prove viable. But he also noted Harvard may have its own claim to freedom of association under Massachusetts law: the University could argue that it has the freedom to associate — and not associate — with whomever it chooses, he said. Under this interpretation of the law, Harvard would have broad discretion to sanction social groups.

Education Secretary Betsy DeVos’s proposed regulations overhauling how colleges handle sexual assault, which may become law in January, are far from perfect. But there is a big reason to support them: I’m a feminist and a Democrat, and as a lawyer I have seen the troubling racial dynamics at play under the current Title IX system and the lack of due process for the accused...We see what the Harvard Law School professor Janet Halley described in a 2015 law review article: “The general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.”...“I’ve assisted multiple men of color, a Dreamer, a homeless man and two trans students,” Professor Halley told me. “How can the left care about these people when the frame is mass incarceration, immigration or trans-positivity and actively reject fairness protections for them under Title IX?”