Media Mentions

President Trump has weaponized tariffs to upend the global rules of international trade — but can his policies withstand the peanut butter test? On Wednesday, a three-judge panel, deliberating in a federal courtroom in Lower Manhattan, considered the most far-reaching legal challenge to the president’s aggressive use of national security to justify placing levies on steel and aluminum imports from Europe as well as from Canada, Mexico, China and other nations. ... “There are very few cases, but the precedents all suggest that Congress can delegate this authority to the president, and he has a wide discretion when it comes to issues of national security,” said Mark Wu, a professor at Harvard Law School who studies international trade issues.

... What is clear, however, is that to the extent the president has a safe harbor for prosecution during his time in office, that protection is personal to him. His relatives and his business empire don’t get that benefit. ... “Unless the Office of Special Counsel or the Southern District of New York [prosecution team] intends to indict Trump personally (or has already indicted him under seal), no claim could be made that indicting any of the Trump organizations would somehow be an abusive circumvention of what ought to be an indictment of Mr. Trump as the real party in interest and the real ‘brains,’ if you’ll pardon the expression in this context, behind those entities,” says constitutional scholar Laurence H. Tribe.

An op-ed by Lawrence Lessig: In its first act next January, the new House is scheduled to take up the most important civil rights bill in half a century. The bill signals a profoundly comprehensive understanding of the flaws that have evolved within our democracy. That it is scheduled first screams a recognition that these flaws must be fixed first, if we’re to have a Congress that is free to do the other critically important work that Congress must do. But that the bill is all but invisible to anyone outside the beltway signals the most important gap left in this most important fight to make representative democracy in America possible — if not again, then finally.

As the US Senate has invoked the War Powers Act – a 1973 law by which Congress sought an end to the war in Vietnam – as a way to disengage the US militarily from Yemen, it is relevant in this context to examine whether the executive has stepped into the sphere of the legislature. ... In this context, legal experts such as Jack Goldsmith, a former US assistant attorney general and current professor at Harvard Law School, wrote on the Lawfare blog that planned use of military force in Syria without the authorization of Congress would have set a precedent for presidential unilateralism, in part because “neither US persons nor property are at stake, and no plausible self-defense rationale exists.”

Over the past few decades, the science of animal cognition has changed people’s understanding of other species. In several, researchers have discovered emotions, intelligence and behaviour once thought to belong exclusively to humans. But the law has changed slowly, and in one respect barely at all. Most legal systems treat the subjects of law as either people or property. There is no third category. ... The upshot is that “the law is a patchwork,” says Kristen Stilt, who teaches animal law at Harvard Law School. Animals still lack rights, but the bright line separating them from people has been dulled by sentience laws and rulings in India, Argentina and Colombia.

Nearly nine in 10 grocery products now bear clearer labels for use-by dates, and consumers are finding them easier to understand, according to the Grocery Manufacturers Association (GMA). ... A July 2017 GMA and Food Policy Action study revealed that 60% of Americans said they had discussions in their households about how to interpret the meaning of grocery date labels, and another 40% acknowledged having disagreements about whether to throw a product away. Similarly, a report by the Harvard Law School Food Policy Clinic and the Natural Resources Defense Council found that over 90% of Americans may discard food too early because they misunderstand date labels.

A growing number of scientific reports and news headlines tell a grim tale — the quality and quantity of the U.S. water supply is increasingly threatened by droughts, contamination, algal blooms, severe weather and diminishing groundwater aquifers. Yet, rather than stepping up protections, the Environmental Protection Agency and Army Corps of Engineers just signed a proposed rule to revise the definition of the “waters of the United States” in ways that will substantially restrict the waterways protected as part of the Clean Water Act. ... Although the Trump administration and lobbyists stoked fears among farmers that government authorities would regulate ditches and ponds, the reality is that the Clean Water Act and associated regulations already contained “generous carve-outs for farmers”, according to Caitlin McCoy at Harvard Law School.

They say to dance like no one's watching. But what if millions are watching an avatar of you dance and someone else is making billions from it without your permission? That's the intriguing question at the heart of lawsuits from several dance creators who say that the massive video game "Fortnite" is profiting off their their moves. ... Harvard Law School professor William W. Fisher, who teaches a course on intellectual property law, said in an email that choreography lawsuits don't often make it into court. "Egregious instances of copyright are usually addressed through shaming, not law," he said.

Former University President Drew G. Faust has been named a University Professor, the highest honor a Harvard faculty member can receive, the University announced Monday. Faust joins 24 prominent Harvard faculty with the distinction—including University President Lawrence S. Summers, former Harvard Law School Dean Martha L. Minow, and MacArthur “Genius” Grant recipient Henry Louis Gates Jr.

An op-ed by Jesse M. Fried and Matthew Schoenfeld: While Washington and Beijing battle over trade, a worrisome cross-border financial link has escaped scrutiny: Americans now collectively own most of the public equity of China’s biggest tech companies, including Alibaba, Baidu and Weibo. This relationship is strange (imagine if the Chinese owned most of Amazon, Facebook and Google). It’s also extremely risky, at least for American investors.

While Republicans like President Donald Trump lauded a Texas judge's decision last week that the Affordable Care Act — colloquially known as Obamacare — needed to be repealed, not everyone in the party is certain that this issue will redound to their political benefit. ... Another dimension of the controversial case is the fact that Judge O'Connor is widely perceived as a partisan judge, raising questions about his reasoning for deciding that Obamacare must be overturned. "Judge O’Connor’s opinion was legally indefensible from start to finish," Laurence Tribe, a professor at Harvard Law School, told Salon by email. "I rarely reach this conclusion, but only a results-driven policy agenda could begin to explain his absurd conclusion that Congress’s 2017 decision to zero out the penalty for not buying the insurance mandated by the ACA while retaining the rest of the ACA somehow rendered the entire ACA unconstitutional. People who castigate judges as ‘activists’ whenever they reach liberal results had better step up to the plate and join those across the spectrum who are condemning this latest ruling as way outside the legal ballpark."

China's efforts to become a global powerhouse in the technology of the future are under attack. But don't expect it to beat a retreat....But any measures Xi might announce are expected to be a continuation of the gradual changes it has been introducing in recent years to open more of its economy to the world. "China is accelerating a series of economic reforms, many of which it would have enacted eventually anyway, and attempting to package it as a major concession to US demands," said Mark Wu, an international trade professor at Harvard Law School. Trump administration officials are still taking a wary approach to what China's offering.

A Harvard Law School professor, who also was a President Barack Obama appointee, says recent Michigan Republican moves to strip Democrats’ authority may be unconstitutional. Laurence Tribe is a professor of constitutional law at Harvard who helped write the constitutions of South Africa, the Czech Republic and Marshall Islands. He told the Michigan Advance that a GOP plan to move campaign finance oversight from the secretary of state’s office to a proposed commission and another that would allow the Legislature to name itself as an intervening party in court cases might violate the state Constitution. “I think a compelling argument can be made that the attempt by the Michigan Legislature to restructure the State’s system of government in response to the Democratic victories in the elections for executive branch officials violates the letter and spirit of that bedrock provision of the Michigan Constitution,” Tribe wrote in an email.

Gareth Evans has warned signing up to the international campaign to abolish nuclear weapons will “tear up” the United States alliance ahead of a critical contested vote in an otherwise tranquil Labor conference. ... Australia has consistently refused to support or sign the ban treaty – supported by 122 countries – arguing that it relies on the protection of the United States nuclear umbrella. A paper by the International Human Rights Clinic at the Harvard Law School, published in December, concluded if Australia signed the treaty it would have to leave the nuclear umbrella but the US-Australia alliance is otherwise legally compatible with it.

A Quebec environmental group is taking the federal government to court. ENvironnement JEUnesse filed a class-action suit on behalf of Quebeckers aged 35 and under seeking a declaration that the government’s behaviour in the fight against climate change infringes on their human rights. The claim also seeks punitive damages.... Harvard law professor Richard Lazarus characterizes efforts to legislate solutions to systemic challenges such as climate risk as “super wicked problems.” He observed that “climate-change legislation is especially vulnerable to being unravelled over time … especially because of the extent to which it imposes costs on the short term for the realization of benefits many decades and sometimes centuries later.”

Less than two weeks after joining President Trump’s legal team last April, Rudy Giuliani let slip to Sean Hannity that his client reimbursed Michael Cohen for the $130,000 he paid Stormy Daniels prior to the 2016 election. This contradicted Trump’s claim that he had no knowledge of the payment, which has since been thoroughly disproven. At the time, the president tried to explain that Giuliani had yet to “get his facts straight” while preaching the need to “learn before you speak.” ... Despite the typo-ridden arguments Giuliani and Trump have laid out on Twitter, this is not the case. As Harvard Law professor Alex Whiting pointed out the same day as Giuliani’s walk-back tweet, if Trump were to be convicted of the crimes the SDNY seems to have proof he committed, he would be looking at a minimum of close to three years in prison.

While Republicans like President Donald Trump lauded a Texas judge's decision last week that the Affordable Care Act—colloquially known as Obamacare—needed to be repealed, not everyone in the party is certain that this issue will redound to their political benefit. ... "Judge O’Connor’s opinion was legally indefensible from start to finish," Laurence Tribe, a professor at Harvard Law School, told Salon by email. "I rarely reach this conclusion, but only a results-driven policy agenda could begin to explain his absurd conclusion that Congress’s 2017 decision to zero out the penalty for not buying the insurance mandated by the ACA while retaining the rest of the ACA somehow rendered the entire ACA unconstitutional."

An op-ed by Jack Goldsmith: When President Trump forced Attorney General Jeff Sessions to resign on November 7 and appointed the unqualified Matthew Whitaker as acting attorney general, just about everyone assumed that special counsel Robert Mueller’s Russia investigation was in trouble. ... These are but the latest in an 18-month-long string of extraordinary achievements by the Department of Justice in investigating the chief executive and his associates despite Trump’s objections, threats, and firings of important DoJ officials. There has been feverish concern that Trump’s actions would destroy the department’s independence. Quite the opposite has happened. Trump’s efforts have failed entirely. And DoJ independence is stronger than ever.

Gareth Evans has warned signing up to the international campaign to abolish nuclear weapons will “tear up” the United States alliance ahead of a critical contested vote in an otherwise tranquil Labor conference. ... A paper by the International Human Rights Clinic at the Harvard Law School, published in December, concluded if Australia signed the treaty it would have to leave the nuclear umbrella but the US-Australia alliance is otherwise legally compatible with it.

Students at Iowa's Grinnell College pulled back Friday from a campaign to expand their two-year-old union over concerns that a Republican-dominated board in Washington could use it to strip all or most student workers of the right to bargain collectively. ... "This Board has shown that they have a view of the Act that is not very hospitable towards worker organizing," said Sharon Block, a former board member who now directs the Labor and Work Life program at Harvard Law School. "You just can't discount the possibility that they would reverse that docket again."

U.S. Secretary of Education Betsy DeVos has unveiled a proposal to modify the rules on college campus for adjudicating sexual assault cases, citing inequities that erode the rights of the accused. Many feminists are outraged, wary of obstacles sexual assault victims frequently face in gaining justice. ... Harvard University law professor Janet Halley wrote in a 2015 Harvard Law Review—citing “To Kill a Mockingbird” and the Emmett Till case—“American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women” followed eventually by the revelation “that the accused men were not wrongdoers at all.”