Media Mentions

An op-ed by Jack Goldsmith. I’m grateful for James Freeman’s kind words about my recent essay in the Guardian warning about Deep State leaks, and relieved that he thinks I am “not nearly as far to the left as most Guardian editors.” We agree that there is a serious danger in the Deep State leaks of classified intelligence intercepts that contains U.S. person information and that were clearly designed to sabotage the Trump presidency. And we agree that in many ways those abuses were greater than the political leaks (and threats of leaks) during the Hoover era. But in contrast to Freeman, I don’t see how the evils of intelligence bureaucracy leaks detract from the evils in Trump’s many, many norm violations that I wrote about in a long critical essay on Trump in the Atlantic last Fall.

A report released by the Education Department on Tuesday reveals that black students and students with disabilities are still suspended and arrested at much higher rates than their classmates, further complicating Education Secretary Betsy DeVos’ reconsideration of an Obama-era rule meant to curtail the disproportionate punishment of students of color...Suspensions can ultimately lead to a loss of instruction time that could overwhelmingly fall on students of color and those with disabilities. A report released last week by the UCLA Center for Civil Rights Remedies and Harvard Law School’s Charles Houston Institute for Justice found that students of color with disabilities were more likely to be suspended and lost 77 more days of instruction, on average, than their white peers. In at least 28 states, the gap between disciplining black students with disabilities and white students worsened between 2013-14 and 2015-16.

The Environmental Protection Agency announced a new regulation Tuesday that would restrict the kinds of scientific studies the agency can use when it develops policies, a move critics say will permanently weaken the agency’s ability to protect public health...Richard J. Lazarus, a professor of environmental law at Harvard, said Mr. Pruitt would be “walking into a judicial minefield” if he told the E.P.A. to no longer consider certain studies during agency rule-making. That, Mr. Lazarus said, would be considered an arbitrary and capricious decision under the Administrative Procedure Act, which governs agency rule-making, and would “subject any agency regulation issued based on such a defective record to ready judicial invalidation.”

An op-ed by Noah Feldman. Conservative law professor Kevin Walsh, in an intriguing new article, makes the case for repealing the “natural born” citizenship requirement for the presidency. Next month it will be 150 years since such a proposal for a constitutional amendment was first put before Congress. Today it really makes no sense to discriminate against naturalized citizens when it comes to the presidency, assuming it ever did in the first place. I can think of three further reasons that the timing is right. For one, between election cycles, it isn’t about possible candidates who were born abroad: Arnold Schwarzenegger or Jennifer Granholm or Ted Cruz (who probably isn’t barred anyway). It’s about the principle on its own.

Adopting a strategy successfully employed by the tobacco industry, Environmental Protection Agency Administrator Scott Pruitt announced a sweeping new regulation that would restrict the kinds of scientific studies the agency can use in developing its regulations. The EPA administrator, who has come under fire from both parties for his personal conduct and ethical scandals, announced the changes at an EPA event on Tuesday, where he was surrounded by conservative allies and pollution skeptics...Tuesday’s move advances that goal. Joseph Goffman, a former EPA attorney who is now director of the Harvard Environmental Law program, told me, he was especially struck by “how transparent Pruitt is about rigging the process: Rigging the membership of the science boards, rigging the range of studies that will be incorporated in agency decision making. And in both cases [he’s] excluding sources of information or expertise that would lead to outcomes that Pruitt doesn’t prefer.”

Narcissism was in the air in Washington. On a February night a few hundred yards from the White House, Tom Steyer, the hedge fund billionaire and political activist, had taken over three rooms at the National Press Club for a panel called Presidential Mental Health & Nuclear Weapons...But Steyer, stepping to the lectern by their side, was unmistakably the star of the show. Applause broke out. He smiled and locked eyes with people around the room. Fans following the Facebook livestream sent thumbs-ups by the thousands as he and the five speakers set about explaining why Trump’s sadism, paranoia, unpredictability, and self-obsession make him ill-suited to nuclear weaponry...Still, Steyer has fans inside the impeachment cottage industry who are grateful for an ally rich enough to turn their ideas into zeitgeist. Laurence Tribe, a Harvard Law School professor who teaches a class on Trump and has a book about impeachment coming out in May, credits Steyer with pushing the topic into late-night talk shows and dinner-table conversations. “He’s encouraging people to take seriously something that might have been too much in the background,” Tribe said.

In an interview early this month with the Russian news agency Sports.ru, Russian lawmaker Irina Rodnina defended the “Dima Yakovlev Law,” which banned U.S. adoptions of Russian children. Key to her defense of the law is her assertion that there were ““a lot of cases” of Russian adoptees suffering abuse...In a statement to Polygraph.info, the U.S. State Department said it “condemns the abuse or abandonment of any child” and that “U.S. child protection laws and services apply to all children, regardless of citizenship, country of origin, or dual-nationality.” “It’s a tiny percent,” Harvard Law School professor Elizabeth Bartholet, an expert on intercountry adoptions, told Polygraph.info, referring to incidents of abuse of adopted children in the U.S. She conceded that precise data is hard to get, but added: “Overall, adopted kids, both domestic and international, are subject to parental abuse at much lower rates than kids raised by their biological parents, as shown by the social science.”

Two years after the Corporation accepted a proposal to remove the controversial crest of a slave-owning family from the Law School’s official seal, the school has yet to decide on a replacement...In an interview last month, Dean of the Law School John F. Manning ’82 said administrators have been focused on the school’s capital campaign and the bicentennial. He said officials will initiate the process of adopting a new seal at a later date...Matthew Gruber, dean for administration at the Law School, wrote in an email Monday that, in the months since the initial effort to remove the Royall crest from campus, apparel, and websites, the school has continued to identify and remove any leftover seals...Amanda M. Lee [`18], former president of the Law School student government, wrote in an email Monday that the absence of an official seal has not generated much concern among the student body.

Subscription required. SCOTUS seems poised to invalidate compelled public union dues on First Amendment grounds, but some argue the Court's skeptical eye overlooks an implicit doctrine unifying much of its historic jurisprudence, namely that compelled transfers of money (e.g. taxes, minimum wage laws) are regular governmental functions not meriting heightened judicial scrutiny. Nikolas Bowie (Harvard Law School) explains the argument, and his forthcoming paper on the 'Government Could Not Work' doctrine.

An op-ed by Cass Sunstein. President Donald Trump’s “Executive Order on Reducing Poverty in America” has produced the expected political reactions. Because it focuses on saving taxpayer money and strengthening work requirements for federal programs, many conservatives are celebrating it, while many progressives have attacked it as punitive and dehumanizing. As it turns out, it’s a lot more interesting and subtle than either side has seen – and potentially more constructive.

This month, Washington lawmakers overwhelmingly passed a narrow bill that seeks to crack down on sex trafficking online. To most, it seemed like a no-brainer: Sex trafficking is obviously bad. The law, however, changed Section 230 of the Communications Decency Act of 1996, a 20-year-old communications law that is the basis of the free internet as we know it. On April 11, President Donald Trump signed the bill — a combination of bills passed by the House and Senate, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) — into law...There are concerns that FOSTA-SESTA could lead to the further erosion of internet freedom and safe harbor protections. “The larger question is whether this is part of a case for more extensive regulation on different intermediaries, and I think we just don’t know the answer to that yet,” said Harvard law professor Rebecca Tushnet.

An op-ed by Susan Crawford. Facebook is massive. Six million advertisers use Facebook's vast data holdings to perfectly target ads reaching more than 1.4 billion daily (and 2.1 billion monthly) active users, amounting to almost 40 percent of the global internet population. That enormous user base forms a castle wall around Facebook’s core ad business, because few other companies can promise the same level of return for ad spends. It's trendy this month to call on the US government to rein in Facebook. But the government doesn't quite know how to treat the giant blue-branded company: Is it a media conglomerate or a platform?

An op-ed by James R. Clapper, Jr., Joshua A. Geltzer and Matthew G. Olsen. Speaking in Davos this January, President Donald Trump promised that, "when it comes to terrorism, we will do whatever is necessary to protect our nation." It's a commitment we share with the President. In fact, developing and implementing lawful and effective counterterrorism strategies and policies used to be our jobs in the intelligence community, at the White House and at the National Counterterrorism Center, respectively. That's precisely why we are opposed to Trump's travel ban, which heads to the Supreme Court this week for oral arguments. It's unnecessary, at odds with the Constitution, and ultimately counterproductive because it makes Americans less safe rather than more.

The Supreme Court will close out arguments for the term on Wednesday by weighing the constitutionality of President Trump’s third attempt to block nationals from majority-Muslim countries from entering the United States...But Ian Samuel, a Climenko fellow and lecturer on law at Harvard Law School, isn’t convinced Kennedy is in the Trump camp on this one. “Nothing would be less extraordinary than Justice Kennedy changing his mind,” he said. Samuel argues Kennedy is likely to side with Hawaii’s argument that the travel ban is a clear case of unconstitutional religious discrimination. He also said it’s possible that argument could pull Chief Justice John Roberts into the majority for a 6-3 ruling in favor of the state.

...Even the Democratic National Committee’s lawsuit against Russia’s intelligence outfit (GRU), WikiLeaks, Jared Kushner, Donald Trump Jr., Roger Stone, the Trump campaign and others for conspiracy can force Trump and members of his inner circle to turn over documents and sit for depositions where they will have to testify under oath. “This lawsuit is well-grounded jurisdictionally and legally, dodges the difficulties that might’ve been triggered by naming Trump personally, and puts a high-powered piece on the 4-dimensional chessboard that can cause Trump’s circle endless trouble (through discovery and otherwise) after criminal proceedings have been completed and regardless of what happens on the impeachment front,” says constitutional scholar and Supreme Court advocate Laurence H. Tribe (a real lawyer). It can also “provide a potent platform for educating the public about the ugly details of how this presidency arose from a swamp far dirtier than the one Trump promised to drain.”

An op-ed by Jack Goldsmith. America doesn’t have coups or tanks in the street. But a deep state of sorts exists here and it includes national security bureaucrats who use secretly collected information to shape or curb the actions of elected officials. Some see these American bureaucrats as a vital check on the law-breaking or authoritarian or otherwise illegitimate tendencies of democratically elected officials. Others decry them as a self-serving authoritarian cabal that illegally and illegitimately undermines democratically elected officials and the policies they were elected to implement. The truth is that the deep state, which is a real phenomenon, has long been both a threat to democratic politics and a savior of it. The problem is that it is hard to maintain its savior role without also accepting its threatening role. The two go hand in hand, and are difficult to untangle.

More than 200 Harvard students and affiliates, many with red duct tape over their mouths, handed out flyers and encircled University Hall in protest Saturday to demand reforms to University processes they say led to the forcible arrest of a black College student April 13. The event was planned by Black Students Organizing for Change, a group formed by College students in the wake of the physical confrontation between a black student and the Cambridge Police Department last week...During the demonstration, Harvard Law student Akua F. Abu [`20] ’14 said in an interview she thinks it is important to showcase the mistakes and shortcomings of Harvard for prospective students. “The students who are coming to Harvard should really understand that Harvard can be a great and supportive place, but Harvard has made mistakes and Harvard needs to do better,” Abu said.

Some spirited sniping between two Harvard Law School giants might be funny in some context, were the fate of Western democracy not potentially tottering in the balance. In an Ali-Frazier battle of legal minds, former federal judge Nancy Gertner this week smote celebrated legal scholar Alan Dershowitz in the opinion section of The New York Times, accusing him of falsely smearing Robert Mueller, the special counsel investigating Russian interference in the 2016 election and whether or not the Trump campaign was in on it. Gertner and Dershowitz are longtime friends, but the highbrow exchange had an edge. Gertner, a senior lecturer at Harvard Law School, lumped Dershowitz, the loquacious Harvard law professor emeritus, in the same paragraph with partisan mouthpieces Rush Limbaugh and Sean Hannity.

On Friday night, the Cambridge Police Department arrested a black undergraduate on Massachusetts Avenue just outside the Law School. The incident has drawn national attention as Harvard affiliates and onlookers nationwide question whether the arrest and the proceedings leading up to the arrest were in accordance with University and Cambridge city protocol.Those who have witnessed or watched video of the arrest have seen what can only be described as a case of police brutality...we stand with the Black Law Students Association and others in strongly criticizing the arrest...n the aftermath of this troubling event, we call on Harvard to do everything it can to defend the student’s legal rights and rights as a student and are grateful for the work of the Law School professors, Ronald S. Sullivan Jr. and Dehlia Umunna, who will represent him.

A group of Harvard Law School students recently wrote an open letter calling for the school to ensure that law firms who recruit on campus “protect the rights of their employees” to come forward and seek legal action if they “experience harassment, discrimination, or workplace abuse.” The letter stated that several law firms that recruit summer associates from the Law School have recently begun requiring new hires to sign mandatory arbitration agreements along with non-disclosure agreements...Molly M. E. Coleman, one of the letter’s organizers, said in an interview Thursday that the issues were first raised by a lecturer at the Law School who found out firms were asking students to sign these agreements...Sejal Singh, another organizer of the letter, pointed to the particular salience of law firms requiring summer associates to sign mandatory arbitration and non-disclosure agreements in the wake of the #MeToo movement, which sparked national conversations about workplace harassment...Coleman also said students have had productive conversations with Law School administrators, including Assistant Dean for Career Services Mark A. Weber, to try to move forward with their proposed changes. ..“I understand their concerns, and we take them very seriously. We are examining how to address the issue in our recruiting efforts,” he wrote.

...While fully autonomous weapons — the technical term for killer robots — aren't quite yet a reality, the rapid advance of robotics and artificial intelligence raises the specter of armies someday soon having tanks and aircraft capable of attacking without a human at the controls...But outlawing killer robots internationally may prove difficult. Bonnie Docherty, senior arms researcher at Human Rights Watch and associate director of armed conflict and civilian protection at Harvard Law School's International Human Rights Clinic, says in an email that while most of the countries at the UN conference are concerned about autonomous weapons, there's not yet consensus support for a legally-binding international ban.