Media Mentions

In honor of Martin Luther King Jr. Day, this episode celebrates King’s life and work, his vision for America, and his fight to pass landmark civil rights laws and realize the promises of the Constitution. Civil rights and constitutional law experts Michael Klarman of Harvard Law and Theodore M. Shaw of UNC Law join host Lana Ulrich to explore King’s constitutional legacy, shed light on the relationship between litigation and activism, and contemplate whether the Civil Rights Movement would have happened without King. PARTICIPANTS: Michael Klarman is the Kirkland & Ellis Professor at Harvard Law School specializing in constitutional law and constitutional history.

Michael Cohen is going to testify before Congress whether he wants to or not. A day after President Trump’s former attorney and “fixer” postponed plans to testify before Congress voluntarily on February 7th, the Senate Intelligence Committee issued a subpoena that will effectively force Cohen to testify next month. ...As Harvard Law professor Laurence Tribe points out on Twitter, it’s hard to argue that Trump’s threats toward Cohen are not in violation of federal law.@tribelaw Trump seems to have violated U.S.C. §1512 (b): “Whoever knowingly uses intimidation . . . with intent to (1) influence, delay, or prevent the testimony of any person in an official proceeding . . . shall be fined under this title or imprisoned not more than 20 years, or both.”

An op-ed by Noah Feldman: The U.S. and about a dozen other countries recognized opposition leader Juan Guaidó as the legitimate president of Venezuela on Wednesday, even as President Nicolás Maduro maintained his grip on the office. But is that even a thing? Under ordinary principles of constitutional and international law, can one country simply declare that someone who manifestly isn’t the president of the country actually is, and act accordingly? Well, no. Not really. Maduro is a terrible president who has not only broken the Venezuelan economy but also repeatedly broken the Venezuelan constitution himself. His re-election in 2018 by a reported 67.8 percent wasn’t free or fair. It’s defensible as a matter of foreign policy for the U.S. to seek his ouster. But the constitutional argument that Maduro isn’t really president is nothing more than a fig leaf for regime change. Even as fig leaves go, it’s particularly wispy and minimal. The U.S. policy is, in practice, to seek regime change in Venezuela. It would be better to say so directly.  

A tiny fraction of Twitter users spread the vast majority of fake news in 2016, with conservatives and older people sharing misinformation more, a new study finds. Scientists examined more than 16,000 U.S. Twitter accounts and found that 16 of them — less than one-tenth of 1 percent — tweeted out nearly 80 percent of the misinformation masquerading as news, according to a study Thursday in the journal Science. ...Their conclusions are similar to a study earlier this month that looked at the spread of false information on Facebook. It also found that few people shared fakery, but those who did were more likely to be over 65 and conservatives. That makes this study more believable because two groups of researchers using different social media platforms, measuring political affiliation differently and with different panels of users came to the same conclusion, said Yochai Benkler, co-director of Harvard Law School's center on the internet and society. He wasn't part of either study but praised them, saying they should reduce misguided postelection panic about how "out-of-control technological processes had rendered us as a society incapable of telling truth from fiction."

Civil penalties for polluters under the Trump administration plummeted during the past fiscal year to the lowest average level since 1994, according to a new analysis of Environmental Protection Agency data....Cynthia Giles, who headed EPA’s enforcement office in the Obama administration and conducted the analysis, said the inflation-adjusted figures represent the lowest since the agency’s Office of Enforcement and Compliance Assurance was established. The decline in civil penalties could undermine EPA’s ability to deter wrongdoing, some former agency officials said, because they help ensure it is more expensive to violate the law than to comply with it. But Trump administration officials have said they are focusing much of their effort on working with companies ahead of time so they don’t run afoul of the law, rather than punishing them after the fact. That approach, they say, will ensure business operations can thrive without harming the environment. Giles, now a guest fellow at the Harvard Environmental and Energy Law Program, questioned whether the new approach can achieve what administration officials promise.

Although more than a dozen Democrats may be running for president in 2020 — including its governor — Washington still has some unfinished legal business from the 2016 election, which the state Supreme Court tackled Tuesday. Three members of the Washington Electoral College in that last election asked the court to void the $1,000 fine the state charged them for breaking their pledge and voting for someone other than Democratic nominee Hillary Clinton, who won the most votes in the state. ..."The question was not whether they were right (to switch). The question is whether they had the right," attorney Lawrence Lessig argued in the hearing. "An elector is a chooser," he said, not a mere robot or clerk.

So far, there are two known grand juries, one in DC and one in Virginia, tasked with hearing testimony and reviewing evidence into Mueller probe into Russian interference in the 2016 election and whether the Trump campaign collaborated with Moscow. Dozens of anonymous jurors have been behind all 22 indictmentsMueller's team has handed down — and will be central to the investigation's work moving forward. ... Former federal prosecutor and Harvard law professor Alex Whiting told the Washington Post that witnesses not having a defense attorney as a buffer decreases the likelihood of them lying to the jury, but also makes it easier for them to be indicted. "It's very hard to lie when you don't know anything about what the prosecutor knows or what the charges are," he said.

On the second day of 2019, Interior Secretary Ryan Zinke tweeted out his resignation letter to President Donald Trump. After less than two years in office, he claimed to have “restored public lands ‘for the benefit & enjoyment of the people,’ improved public access & shall never be held hostage again for our energy needs.” ...The legal actions of the Trump administration’s Interior Department are also vulnerable in federal courts. “We see a pattern of attempts to suspend compliance with agency rules,” that doesn’t adhere to the Administrative Procedures Act, said Hana Vizcarra, the staff attorney for Harvard Law’s Environmental and Energy Law Program.

A proposal from Senate Republicans to end the partial government shutdown includes not only the $5.7 billion President Donald Trump seeks for a border barrier with Mexico, but also landmark changes to the U.S. asylum system. It’s uncertain if the proposal — in its current form — would pass the Senate or get approval from the U.S. House of Representatives. Democratic leaders in Congress have already come out against the proposal. ... International law says that a signatory to the United Nations Refugee Convention/Protocol (Article 33) cannot return a refugee to a country where he or she faces persecution on account of race, religion, nationality, membership in a particular social group or political opinion, said Deborah Anker, a clinical professor of law, founder and director of the Harvard Immigration and Refugee Clinical Program at Harvard Law School. "If the United States turns away people at the border, or from within the United States, it is violating the Convention/Protocol," Anker said.

Harvard Law Professor Laurence Tribe openly questioned why more attention hasn’t been given to what he’s described as “witness tampering” on the part of President Donald Trump toward his former “fixer” lawyer Michael Cohen. Referring to a BuzzFeed News article that suggested Trump had told Cohen to lie in front of Congress during testimony he had given, Tribe pondered over why Trump’s latest attacks against his former legal counsel didn’t garner more outrage or concern. “Why did Buzzfeed story about Trump’s subornation of perjury cause a Tsunami while his witness tampering in plain view causes only a ripple?” Tribe asked in a tweet he authored on Thursday morning.

The death last week of the founder of Vanguard, Mr John Bogle, offers a timely reminder of the upheaval in the asset management industry brought about by the advent of index investing around four decades ago. Index investing had its antecedents in the development of modern portfolio theory. ...In a similar tradition to Berle and Means, Professor Lucian Bebchuk, Alma Cohen and Scott Hirst from Harvard University suggests that the institutionalisation of stock markets exacerbates the conflict of interest (The agency problems of institutional investors, Journal of Economic Perspectives 2017). In a world of diffuse and dispersed share ownership, institutional investors are reluctant to engage in monitoring in the knowledge that their competitors also benefit from their own time consuming and expensive monitoring activities. Index funds in particular, face weak incentives to engage in stewardship activities that improve governance and value because they bear the full cost of such activities but not the full benefits.

As prominent members of the U.S. Senate, Mitch McConnell and Rand Paul each has a well-stocked political action committee, but Kentucky’s two Republican senators could hardly be more different in how they raise and spend their PAC money. Paul spent much more on travel, food and drink combined last year than he did on the original purpose for such politician PACs – to use this separate political stash to make contributions to other like-minded candidates. ... Lawrence Lessig, a campaign finance expert who is the Roy L. Furman professor of law and leadership at Harvard Law School, said for many the leadership PAC has become a device for modestly paid members of Congress to live like those in Washington’s elite professional class of lawyers, lobbyists and executives. “As long as what you’re doing can be tied to the business of building political support for your movement, you get to expense that to your leadership PAC,” Lessig said.  “So you go to dinner at one of the fancy restaurants in Washington and you roll up a $600 bill for the three or four of you. As long as you spend some part of that dinner talking about how you’re going to get your party in power, or what strategy should be adopted to rally more support for your party, that becomes expense-able.”

The Supreme Court is not likely to review during its current term the program that shields young undocumented immigrants brought to the United States as children, leaving in place the Obama-era initiative that the Trump administration has tried to end. The justices on Tuesday took no action on the administration’s request that it review the Deferred Action for Childhood Arrivals program, which has protected nearly 700,000 people brought to this country as children, commonly known as “dreamers.” ...Constitutional scholar Laurence Tribe tells me, “The absence of a circuit split would not have prevented the Court from agreeing to hear a case of this enormous national significance at the earliest possible opportunity unless it was reluctant to wade into so political a thicket at a time when doing so would clearly change the president’s bargaining leverage on the shutdown.”

California Sen. Kamala Harris had barely become a candidate for the Democratic presidential nomination before birther accusations started on Twitter. Harris announced her candidacy on Jan. 21. The following morning, Jacob Wohl -- a self-described Trump supporter who has been described by media outlets as a "far-right conspiracy theorist" -- questioned whether Harris was eligible to run. ..."If you are born in the U.S, you are automatically a natural-born U.S. citizen under the constitution," said Harvard Law Professor Einer Elhauge.

“The talk of impeachment, all-but-taboo in Big Media’s coverage of Trump, [has] moved from the margins into the mainstream — across the journalism spectrum,” wrote Margaret Sullivan, The Washington Post’s media critic, in her latest column. The topic was even part of this week’s episode of “Fox News Sunday,” as Sullivan pointed out. ... Laurence Tribe, a Harvard law professor, and Joshua Matz also make this argument in a forthcoming epilogue to the paperback edition of “To End a Presidency,” their book about impeachment: “The president wins — and everyone else loses — when the main framework for evaluating his conduct is whether it will trigger impeachment. By battling on that terrain, [Trump] preemptively sets aside most standards by which a democracy should judge its leader. He also invigorates his base by turning every dispute into a referendum on his continued tenure in office.”

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?”