Media Mentions

An op-ed by Gillian Metzger and Vicki C. Jackson... Think of the objections to the unchecked exercise of government power that motivated American history – the original tea party, the Declaration of Independence, and the Constitution of 1789. For all the critiques one might make of it — tolerating and protecting slavery being one — this Constitution and the institutions of federal government that it created helped secure the rule of law in the United States. And a basic principle of the constitutional rule of law is that no person, not even the President, is above the law.

"It often happens," says Phil Torrey, managing attorney of the Harvard Immigration and Refugee Clinical Program (HIRC), “that I’ll get a phone call from criminal-defense counsel somewhere random in the country, like the one last week I got from Tennessee. The lawyer says, ‘Hey, I’m about to go into the courtroom, here’s the plea deal that’s on the table—and my client’s not a U.S. citizen. What’s gonna happen?’” Torrey is addressing the four law students in his “crimmigration” clinic, who are learning how to advocate for criminal defendants who are not American citizens...In addition to its broader Immigration and Refugee Advocacy clinic, HIRC offers Torrey’s crimmigration clinic in the spring: an opportunity for students to gain direct experience working on and contributing to case law in this young field. When she co-founded HIRC in 1984, says clinical professor of law Deborah Anker, it “was at the bottom of the pile”; immigration issues were barely recognized as a subfield of law. But student interest has spiked since the 2016 election, and now, she says, the Immigration and Refugee Advocacy clinic has one of “the longest waiting lists among [HLS] clinics—about 100 students.”...As Nancy Kelly, a clinical instructor and lecturer on law, puts it, Donald Trump “ran on a platform of immigrants being criminals, and now he’s doing his best to make that a reality.”... The clinic hired a staff attorney, Jason Corral, in January 2017 to represent members of the University community; soon after, a number of additional Trump administration executive orders affected various Harvard students and staff members: the ban on travel from seven majority-Muslim countries (HIRC wrote an amicus brief challenging that order), the repeal of DACA (now under challenge in courts), and the revocation of Temporary Protected Status (TPS) for 400,000 immigrants from El Salvador, Haiti, Nicaragua, Nepal, and, most recently, Honduras...If the repeal proceeds without challenge, Corral says, HIRC may consider building asylum arguments for TPS holders.

The U.S. Supreme Court punted Monday on its biggest decision of its term so far. The justices had been expected to rule on the limits of partisan gerrymandering. Instead, the court sidestepped the major issues on technical grounds, sending the issue back to the lower courts for further examination...In an unusual step, the justices, by a 7-to-2 vote, sent the case back to the lower courts, in order to give the Democratic voters a chance to present evidence of injury on a district-by-district basis, instead of a statewide basis. The Maryland case, likewise, was remanded to the lower courts...But Lawrence Lessig, a professor at Harvard Law School, was more optimistic for the challengers, seeing Monday's decision as "a short-term stumble on the way to a long-term victory." In the long run, he said, "we're going to see this as really the dam breaking and an extraordinary opportunity to clean up the unfairness of our political system."

An article by Sabi Ardalan. Attorney General Jeff Sessions recently upended decades of U.S. legal precedent by asserting that women fleeing domestic violence will not generally qualify for asylum. To do so, he challenged the principle that women victims of domestic violence are members of a “particular social group.” This phrase – “particular social group” – is critical to the work of immigration lawyers like myself. It allows us to argue that women, LGBTQ people and other vulnerable groups face specific kinds of persecution based on who they are. If left unchallenged, Sessions’ ruling could endanger thousands of asylum-seekers, including many of my clients.

The Presidential pardon power is as old as the United States itself. But few Presidents — if any — have thrown this constitutionally enshrined power into the spotlight like Donald Trump. In recent weeks Trump and his lawyers have even suggested he has the power to pardon himself. All this talk got me curious. Just why was the president given the power to pardon in the first place? As Harvard Law School’s Michael Klarman explained to me, it goes back to the 55 men who met in Philadelphia to create the U.S. Constitution. "The main model they have is Great Britain," he explained. "There are lots of things in the Constitution that are directly derived from British practice."

Comcast is taking shots at Mickey Mouse. The Philadelphia cable and entertainment giant made a $65 billion cash offer for the assets that 21st Century Fox is already selling to the Walt Disney Co. for $52.4 billion in stock, setting up what may be a punishing takeover battle between the two legacy media giants...“We know from the personalities involved there will be blood on the floor somewhere,” Susan Crawford, a professor at Harvard Law School and author of Captive Audience, about the Comcast/NBCUniversal merger. “It’s clearly going to be a battle of male wills. These are guys who are used to being in control and want their way and will do about anything to get it.” Of Murdoch, she added that “it’s hard to imagine an 87-year-old media mogul being in the backseat.”

Harvard law professor Laurence Tribe wants to teach Americans a lesson about impeachment, warning that it is “too important and too vital a power to be bandied about as ordinary politics.” Trump’s most ardent critics have been calling for impeachment since the day he was inaugurated, and while Democratic Party leaders have said it’s premature to talk about impeachment, a few House Democrats have already advocated for it...Tribe’s new book To End a Presidency, written with attorney Joshua Matz, offers a guide to the process of impeachment — a power they argue “should be invoked only under dire circumstances” — and wrestles with the consequences of taking such an action. Tribe spoke to TIME about his book, Trump’s pardon power and the trouble with impeachment.

An interview with Nancy Gertner. A report released today by the Department of Justice Office of the Inspector General found that former FBI Director James Comey acted outside the procedural norms of the FBI and the DOJ while conducting the investigation into Hillary Clinton's use of a private email server. The report also found no evidence of political bias in the FBI's handling of the case.

A federal court in Boston will receive motions for summary judgment on Friday in a lawsuit involving Harvard College’s admissions process that experts say could reshape the nation’s higher education landscape and undermine efforts to foster diverse student communities at colleges and universities across the country. A trial date has been tentatively set for October...Assessing the 2016 ruling, Tomiko Brown-Nagin, incoming dean of the Radcliffe Institute for Advanced Study and Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, said, “Once again you had a decision upholding a state’s interest in pursuing educational diversity, and upholding the limited use of holistic admissions.” Yet given the narrow way in which the court has tailored previous rulings, Brown-Nagin added that colleges and universities “certainly should be aware that they need to not only endorse the educational benefits of diversity but show that the way in which they are implementing their mission is consistent with the law, that it’s fair, and that applicants are not being denied opportunities based on race.”

...But since the late 1970s, despite a “Reagan revolution” inspired in part by Friedman, the scope of the U.S. government has arguably increased, while business’s influence over it has surely grown. The academic study of this influence has over the years focused largely on campaign donations and lobbying expenditures, and it has not come to particularly strong conclusions. But some of the most dramatic examples of increased corporate sway aren’t directly linked to such spending. The U.S. Supreme Court, for example, has since the 1970s used a novel interpretation of the First Amendment to assert ever-stronger protections for business, as John Coates of Harvard Law School described in an impassioned 2015 essay.

Immigration attorneys in Greater Boston are scrambling this week after a decision from U.S. Attorney General Jeff Sessions overturned a precedent determining who is eligible for asylum in the United States. Survivors of domestic violence and gang persecution, in many cases, were considered legitimate candidates for asylum — until now. Many immigration attorneys say the attorney general's decision is devastating...Deborah Anker has been working on asylum cases with domestic violence survivors for decades. She's the founder and director of the Harvard Law School Immigration and Refugee Clinical Program. Anker said the decision from Sessions is a big blow, but she believes attorneys can still prove the need for asylum in some cases. But, she said, it's going to take a lot more work. "I think we will be very careful to submit extensive country condition evidence, condition evidence about the positions of different governments regarding women, and we'll be thinking through, carefully, other grounds for protection."

Nearly half of the 374 Big Law firms recently polled by U.S. law schools declined to say whether they require new associates to sign mandatory arbitration agreements. Dozens of U.S. law schools sent the survey to law firms in mid-May following outcry from students that the firms might require them to give up their rights to sue over employment practices in court. The schools released the results of the survey June 11. 188 firms—including Kirkland & Ellis, which is known to require associates to sign arbitration agreements—didn’t respond. A copy of an arbitration agreement given to a current summer associate was shared with Bloomberg Law. “We don’t know how many other firms do this, and it’s hard for people make an informed decision” whether to apply for or accept a position until “they know if they’re going to be forced to sign an arbitration agreement,” Sejal Singh [`20], a rising 2L at Harvard Law School, told Bloomberg Law.

Bruce Schneier is an internationally renowned security technologist. An author of 13 books including Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World, his newsletter Crypto-Gram and his blog Schneier on Security are read by over 250,000 people...In an interview, Schneier speaks about some of the biggest online security threats that individuals, companies and governments will face in 2018; how these threats have ballooned because of the IoT (Internet of Things); learnings from the Cambridge Analytica-Facebook data compromise issue; Surveillance Capitalism; and his thoughts on artificial intelligence (AI) and cyberwar among other things.

An op-ed by Susan Crawford. This week, there's a swirl of stories about Comcast, Fox, Disney, and Sky. (Nutshell: Fox and Comcast are fighting for control over Sky; Comcast and Disney are about to battle over Fox.) Although all of this has the impersonal buzz of brightly colored brands building bigger businesses, it's actually a deeply human saga. Comcast chair and CEO Brian Roberts and media mogul Rupert Murdoch, head of the 20th Century Fox empire, are looking to win long-running personal battles.

An op-ed by Cass Sunstein. Might the World Cup, which starts this week, reduce ethnic divisions and political violence? Absolutely. To see why, we have to back up a bit. All over the world, many people closely identify with their religion, their race or their ethnicity – and much less with their country. That can be a serious problem. When people separate themselves from their fellow citizens, they tend to distrust each other. They become less able to address shared challenges. They regard each other as strangers – and, in extreme cases, as enemies.

An op-ed by Noah Feldman. In a 5-4 decision along party lines, the U.S. Supreme Court on Monday upheld an Ohio law that lets the state kick people off the voter rolls if they don’t show up to vote for six years and don’t return a postcard saying they haven’t moved. It would be nice if legal principle had played any role in the decision on either side, but it didn’t, not really. The five conservatives, including Justice Anthony Kennedy, found in Husted v. A. Philip Randolph Institute that the state law was consistent with federal law; the four liberals said it wasn’t.

On Monday, Attorney General Jeff Sessions ruled that a Salvadoran woman who came to the U.S. in 2014 to escape an abusive husband did not qualify for asylum under United States law. An immigration court had previously granted her asylum, allowing her to remain in the country legally, but Sessions reconsidered the finding, as part of a broader rethinking of whether or not victims of domestic abuse can qualify for protection under U.S. asylum law. The decision means that the U.S. can now begin to turn away tens of thousands of women who arrive in this country every year, seeking safety from violence and abuse at home. “He could be repealing sixty to seventy per cent of asylum jurisprudence,” Deborah Anker, an immigration expert at Harvard Law School, told me, speaking about Sessions, before the decision was announced. “Its ramifications are extraordinary.”

An op-ed by Ian Samuel and Leah Litman. Earlier today, the Justice Department filed a document in a case about the Affordable Care Act that was so radical, and so self-evidently without merit, that career lawyers in that agency would not sign their names to it. In fact, the document is such a transparent embarrassment that three career lawyers involved in the case withdrew their appearance before it was filed, presumably to avoid the taint of being listed on a docket where it appeared. Reading the filing is enough to explain why none of them could stomach it. The document is not so much a brief as the establishing shots of a heist.

The Trump administration's latest bid to boost troubled coal and nuclear plants is certain to spark a legal war if it's ever finalized. After details of a rescue proposal leaked ahead of a National Security Council meeting Friday, energy experts set to work unpacking the legal issues and gaming out potential litigation scenarios. The draft memo out of the Department of Energy, first published by Bloomberg News, proposes using two federal laws focused on emergencies and wartime needs to extend the life of coal and nuclear power plants at risk of retiring soon...While federal courts have issued decisions about contract disputes and other specific issues under the law, they haven't reached any broad rulings about the scope of authority the DPA gives DOE, said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School.

An op-ed by Alex Whiting and Renato Mariotti. How strong is the evidence that Paul Manafort tampered with witnesses in his criminal case, as Special Counsel Robert Mueller now alleges in his motion to revoke Manafort’s bail or modify his conditions of release? Paul Rosenzweig at Lawfare claims that the evidence is “thin,” and on the basis of that conclusion engages in a bit of “speculation” (his word) that Mueller is feeling “pressure” from President Donald Trump, Deputy Attorney General Rod Rosenstein, or the public to move more quickly, and is therefore seeking to “ramp up the pressure” on Manafort in a seemingly desperate bid to get him to cooperate. We disagree.

For decades, President Trump has presented himself as a master dealmaker. "I've made a lot of deals," Trump told reporters last month. "I know deals, I think, better than anybody knows deals." That was part of the shtick on Trump's long-running TV show, The Apprentice. And it's the subject of his bestselling 1987 book, The Art of the Deal..."Although his Art of the Deal sold a lot of copies, I don't think he's a very impressive negotiator," said Robert Mnookin, who directs the Harvard Negotiation Research Project. Mnookin, who wrote his own book on negotiation called Bargaining with the Devil, says Trump often goes from tough and adversarial one minute to ingratiating the next. He used to call Kim Jong Un "Little Rocket Man." Now he praises the dictator as "very honorable." The president calls that flexibility. Mnookin says it makes Trump hard to trust.