Media Mentions

An op-ed by Nancy Gertner. It would be easy for Massachusetts citizens to feel complacent about the security of their reproductive rights. A 1980 decision by the Supreme Judicial Court guarantees reproductive rights under the Massachusetts Constitution, and recently passed legislation (dubbed the NASTY Women Act) repealed several decades-old Massachusetts antiabortion laws. But Massachusetts should still care about what would happen if the Supreme Court — with a new Justice Kavanaugh — overturns Roe v. Wade. For women across the country, it would mean a return to the days when wealthy women in states that prohibit abortion could travel to a state where it was legal — an option not available for poor women. Massachusetts could become a destination state for women seeking abortions. Make no mistake — Kavanaugh will vote to overturn Roe.

An op-ed by Carol S. Steiker and Jordan M. Steiker. When Pope Francis changed the Catholic Church’s position on the death penalty from permitting it in very rare circumstances to now deeming it completely “inadmissible” and violative of the “dignity of the person,” it reflected and reinforced a stunning decline of capital punishment worldwide in recent decades. In 1970, fewer than 20 nations were fully abolitionist. Today, more than two-thirds of the world’s roughly 200 countries have abolished the death penalty in law or practice. As a practical matter, executions are confined to a handful of nations. Five countries — China, Iraq, Iran, Saudi Arabia and Pakistan — carried out well over 90% of last year’s executions. The Pope’s emphasis on human dignity underscores the predominant rationale for jettisoning the death penalty: the growing consensus that state killing runs afoul of basic respect for human rights. But the utility of this premise is somewhat limited in the nations that still practice capital punishment, including the United States.

...It is illegal for a director or officer of a public company “to knowingly or recklessly make material misstatements about that company,” said John Coates, a professor at Harvard Law School who teaches mergers and acquisitions. Mr. Musk’s “tweets seem cryptic at best, and it is hard to see how he has complied with his duty to not be misleadingly incomplete.”

Perhaps no part of President Trump’s campaign to overhaul U.S. trade policy enjoys broader support than his indictment of China. Yet if the president’s push to reshape the U.S.-China trade relationship reflects a bipartisan consensus, his method for doing so does not...China generally complies with global regulators’ edicts when it loses a dispute. But its economic model poses a unique challenge that global regulators are failing to meet, said Mark Wu, a former U.S. trade negotiator who teaches at Harvard Law School. The Trump administration sees that challenge as growing more acute as an increasingly prosperous China targets the innovative high-technology industries that the United States dominates. China joined the WTO in 2001 after more than two decades of moving from Maoist autarky toward an export-oriented, market-based economy. In its first years as a member of the global trading club, China developed in unanticipated ways, according to Wu.

An op-ed by Mihir Desai. With Apple Inc. now exceeding $1 trillion in market capitalization, it’s tempting to understand this moment in terms of the dominance of all-too-large companies and technology in our lives. Those interpretations obscure Apple’s other accomplishment — pioneering a financial model that is the envy of corporate America. Sure, Apple produces innovative phones and laptops, but look inside its sleek exterior and you’ll find an elegant financial machine that has become the ideal for corporate America. Without investing significantly in hard assets, Apple spins cash and returns it to shareholders at a stunning rate. It’s difficult not to admire.

Charles Hamilton Houston Jr., a retired Morgan State University lecturer whose work extended the legacy of his father’s contributions to the civil rights movement, died July 15 from Parkinson’s disease at the University of Maryland Medical Center...The younger Mr. Houston worked closely with Howard University, the University of Maryland, College Park, and Harvard University, where its law school has been home to the Charles Hamilton Houston Institute for Race and Justice since its founding in 2005. “He and his wife, Rose, have been part of the Houston Institute family from the beginning and we have been blessed by his spirit, grace, generosity and integrity,” said David Harris, managing director of the institute. “Joining us for so many of our events, Charles always brought a warmth and dignity that embodied his father’s legacy. His smile was at once inviting and contagious and his comments always filled us with insight.

An article by Bob Bauer and Jack Goldsmith. We have complementary articles about the proper conception of lawyering for the president in times of crisis in the most recent issue of the Georgetown Journal of Legal Ethics that we thought might be of interest to Lawfare readers.

It’s of little worry for Republicans or solace for Democrats bracing for battle over Brett Kavanaugh’s nomination to fill the Supreme Court vacancy. Yet history suggests that if President Donald Trump cements an assertively conservative court for a generation, the GOP may ultimately pay a political price...“In a democracy, what matters is winning votes,” said Michael Klarman, a Harvard Law School professor who has studied constitutional history. “And you shouldn’t trust the courts to win your battles for you, because there’s going to be a backlash if they go too far, too fast.“

An op-ed by Cass Sunstein. During a presidential campaign, accepting help from Russia “to get information on an opponent” is an ugly and unpatriotic act. It casts contempt on the countless people who have put their lives on the line for our republic and the principles for which it stands.

An op-ed by Noah Feldman. When Pope Francis makes a point of saying that the death penalty is immoral under all circumstances, and adds the condemnation to the official Catholic catechism, who is he talking to? According to Amnesty International, the top five executing countries in the world last year were China, Iran, Saudi Arabia, Iraq and Pakistan. One of those is Communist and four are Muslim. So the odds are that Francis, in an announcement Thursday, was talking to No. 8 on the list, the only country in the world that has a significant, influential Catholic population yet still executes people: the United States of America.

The Trump administration's immigration crackdown may be leading to an unintended consequence: a drop-off in benefits enrollment among legal Hispanic immigrants. An immigration program called Secure Communities, which was rolled out during the Obama administration, is linked to a lower take-up of benefits such as food stamps and health care enrollment, according to a recent study published by the National Bureau of Economic Research. The researchers found Hispanic households were particularly hard-hit, even those with legal immigration status. "We find evidence that our results may be driven by deportation fear rather than lack of benefit information or stigma," wrote Marcella Alsan of Stanford Medical School and Crystal Yang of Harvard Law School in the paper.

Facebook reveals new attacks on the 2018 U.S. Midterm elections that they describe as “consistent” with the Russian election meddling in 2016. Terrorism analyst Malcolm Nance tells Ari Melber that “the nation is under attack” and Congress must take it “seriously”. Harvard Law School’s Yochai Benkler says foreigners trying to influence U.S. Elections are “trolling us” and trying to make Americans think “our democracy is not safe”, but “largely they’re not driving the effect”.

...Laurence H. Tribe, a constitutional scholar and Supreme Court litigator, points out that a favorable outcome for Mueller is no slam dunk at the Supreme Court. Therefore, Tribe reasons, “he might want at least to try reaching a resolution, even if suboptimal, that doesn’t require going all the way to the Supreme Court, where he might not find five justices prepared to follow U.S. v Nixon, at least in the context of subpoenaing more than documents.”

President Trump’s lack of self-control has never been so apparent. At a time when reports suggest that special counsel Robert S. Mueller III is looking at tweets for evidence of “corrupt intent’ — a necessary element of the crime of obstruction of justice — Trump serves up tweets that evidence corrupt intent...Laurence H. Tribe, a constitutional scholar and Supreme Court advocate, likewise cautions that “what Trump has said about Sessions isn’t equivalent to telling the attorney general ‘You’re fired unless you direct your deputy discharge Mueller by close of business today.’ ”

An op-ed by Vartan Shadarevian `20. The White House has recently stated that it is considering revoking the security clearances of several former high ranking public officials...Such a move would be unprecedented, and the repercussions are potentially far-reaching.

It is no longer remotely newsworthy when President Donald Trump tells lies. It is, however, newsworthy when his own Department of Justice calls him out for having lied. That is essentially what happened when Benjamin Wittes, the journalist behind the blog Lawfare, filed Freedom of Information Act requests in April 2017 to find out whether there was any truth to this statement made by Trump in his February 2017 State of the Union address...Salon reached out to [Laurence] Tribe to unpack his thoughts on the deeper meaning behind both Trump's lie about immigrants and the seemingly remarkable fact that his own government has been forced to acknowledge the untruth.

An op-ed by Anupam B. Jena, Cass R. Sunstein and Tanner R. Hicks. Justice is blind — or at least that’s the ideal. Across the United States, the law is administered by a million police officers and more than 30,000 state and federal judges. While these officials usually have good intentions, there’s increasing awareness of the role that racial and other biases often play in law enforcement decisions. What’s less well known is how idiosyncratic factors can shape how people are treated.

Students and alumni of Harvard Law School appear to be divided over the nomination of Judge Brett M. Kavanaugh to the United States Supreme Court. Students at the school, where Kavanaugh taught as a visiting professor for many years, have circulated two contrasting letters in recent weeks — one praising Kavanaugh’s character and another opposing his nomination...Haley Adams [`20], a signatory of the letter opposing Kavanaugh’s nomination, wrote in an email Wednesday that the purpose of the letter was to show that a “large portion” of the Law School community did not support the nomination of Kavanaugh to the Supreme Court.“The letter was meant to make it clear that a large portion of HLS did not feel represented by the administration's celebration of Kavanaugh's nomination, nor by the students who spoke out lauding his teaching style,” Adams wrote.

An op-ed by Jody Freeman. The Environmental Protection Agency and Department of Transportation moved Thursday to fulfill President Trump’s promise to undo landmark Obama-era rules requiring automakers to steadily reduce greenhouse gas pollution from cars and trucks and improve fuel efficiency through 2025. Transportation is the largest source of greenhouse gas emissions in the United States, with the biggest share coming from cars and trucks. Yet the government now plans to freeze fuel economy and greenhouse gas standards indefinitely at levels set for 2020, thwarting progress on addressing climate change. To make sure it accomplishes that goal, the Trump administration also wants to strip California of its authority to set stricter greenhouse gas standards for vehicles sold within its borders, which the state is authorized to do under a longstanding provision of the Clean Air Act.

...Not all economic and financial analysts see buybacks as problematic. “Far from being starved of resources, S&P 500 companies are at near-peak levels of investment and have huge stockpiles of cash available for even more,” argue Jesse M. Fried and Charles C.Y. Wang in the Harvard Business Review. “The proportion of income available for investment that went to shareholders of the 500 over the past 10 years was a modest 41.5 percent—less than half the amount claimed by critics.” Plus, if buybacks merely transferred money from businesses to investors who then reallocated that money to other, more dynamic businesses, the overall effect on the economy might be muted.

An op-ed by Cass Sunstein. Whether something seems bad, unethical or horrifying depends on what else is happening out there. That helps explain why we often fail to appreciate amazing social progress — and why we can miss it when things are falling apart. To understand these points, consider a stunning new paper by a team of psychologists, led by David Levari of Harvard University. Their central idea has an unlovely name: “prevalence-induced concept change.” Their findings, based on a series of experiments, are profoundly reassuring in some respects, but also ominous in light of current political developments in the U.S. and elsewhere.