Media Mentions

An op-ed by Susan Crawford: Last month, I heard Jill Lepore give a talk about These Truths, her single-volume history of America from the 15th century through the 2016 presidential election. She got her biggest laugh when she made fun of WIRED for predicting in 2000 that the internet would both lead to the end of political division and be a place where government interference would be senseless.

...The states “spent significant resources trying to ensure that people who were eligible for loan cancellation because of Corinthian fraud would get it,” said Eileen Connor, the director of Harvard Law School’s Project on Predatory Student Lending, one of the organizations representing the borrowers. “It’s just really outrageous that the Department really capriciously turned away from that.”

...I reached out to Mark Tushnet, a law professor at Harvard University, to talk about the case for abolishing the Supreme Court. I asked him if the Court is still fulfilling its constitutional role, if it’s unusual for a liberal democracy to place so much power in a single court, and if he thinks Democrats should consider packing the courts or imposing term limits on justices.

President Donald Trump used to attack Democrats as mere obstructionists determined to block his agenda. But with the opposition poised to seize control of the House, he’s painting them in far darker strokes -- as dangerous socialists hell-bent on turning the country into a poverty-stricken crime scene....The president’s dependence on hyperbole and inflammatory language receives less condemnation from Republican leaders today than it did when he campaigned for office, so there’s little incentive for him to tone it down, according to Laurence Tribe, a Harvard Law School professor and frequent Trump critic who teaches a class on the presidency. And the impact on the country may be long lasting. “I think that as dangerous as he has shown himself to be in many contexts, he’s said very little that’s quite as alarming as this,” Tribe said. “It’s rhetoric drawn directly from the playbook of fascists and dictators.”

An op-ed by Noah Feldman. The consensus on civility emerging from Democratic Party leadership in the wake of Justice Brett Kavanaugh’s confirmation seems to be, if you can’t beat ’em join ’em. Hillary Clinton told CNN that it was impossible to be civil to Republicans until the Democrats win back Congress. And on Wednesday a tape surfaced of Eric Holder, the former attorney general who’s considering a 2020 presidential run, saying that instead of Michelle Obama’s “When they go low, we go high,” the Democratic plan should be “When they go low, we kick them.” Is going low the right choice?

An essay by Jeannie Suk Gersen...The lawsuit, which will go to trial next week in federal district court in Boston, has been called “the Harvard affirmative-action case,” and it has been spoken of as if it could end affirmative action at Harvard and elsewhere. Both the plaintiff, a national group called Students for Fair Admissions, and Harvard benefit from describing it that way, but, in fact, the stakes are somewhat different. Students for Fair Admissions was founded by Edward Blum, a conservative activist who has orchestrated several lawsuits challenging affirmative action, and the initial complaint included a demand that the court declare it illegal to use race as a factor in college admissions. But, in keeping with Supreme Court precedents, the judge in the case, Allison D. Burroughs, has granted judgment in favor of Harvard on that point. The question that remains for trial is whether Harvard has gone beyond what the Supreme Court has said are permissible ways to consider race in admissions—and, specifically, whether it has shown a special bias against Asian-American applicants.

...Roberts will, it is hoped, work hard to preserve the independence and integrity of the court, especially in the current highly politicised atmosphere. Laurence Tribe, a Harvard constitutional law professor whose students included Obama and Roberts, believes that the chief justice will take a “substantially different” posture on the court in the wake of Kavanaugh’s confirmation. “I don’t think Roberts will be a centrist in the way Kennedy was, or a swing vote,” Tribe said. “But I think if and when there are cases about the ability to order a sitting president to testify or to indict a sitting president, or matters that go to the fate of Trump, if Kavanaugh joins Gorsuch and [Samuel] Alito and [Clarence] Thomas, I don’t think we can assume Roberts will go with them.” Tribe, who was sharply critical of Kavanaugh’s partisanship during the confirmation process, added: “I think Roberts is an institutionalist, he believes in stability, he believes in the role of the court, he clearly sees it as part of his responsibility to protect it as a vital institution.”

Despite a slew of privacy breaches at big technology companies in 2018, Silicon Valley has yet to face any type of fines, or incentives to better protect users’ personal information, according to Vivek Wadhwa, a Harvard Law School distinguished fellow. “These people get away with murder,” he said on Wednesday during an interview with FOX Business’ Charles Payne. “And this shouldn’t continue like this.”

An estate plan requires planning. To put a fine point on it, a solid estate plan determines who gets what when you die, “preferably in a tax-efficient manner and with creditor protection,” says Robert H. Sitkoff, the John L. Gray professor of law at Harvard Law School. But death isn’t the sole reason for estate planning. A thorough plan will also include incapacity planning—deciding who will make decisions for you and who will take care of your children if you become debilitated. As we all know but would rather not think about, “mental and physical decay may precede death,” says Sitkoff. That’s why incapacity planning is a part of a good estate plan and is becoming more important because of our “ever-increasing human longevity.”

Student activists across the University say they willlead campaigns to increase campus voting rates and will work even harder to combat sexual assault in response to Brett M. Kavanaugh's confirmation to the Supreme Court last week...Law School student Vail Kohnert-Yount, a member of advocacy group the Pipeline Parity Project, said she found Manning’s email hypocritical given he previously spoke out in support of the judge after President Donald Trump nominated him over the summer...“It made me not only disappointed but deeply angry that he would think that we wouldn't see that hypocrisy.”...“We will continue pushing for changes that we want to see in the legal community and at Harvard Law School to start,” said Isabel Finley, the president of the Women’s Law Association. “Things that have to do with how women are able to perform here, how they're able to progress their careers in a way that is on par with men, whether or not they're getting that support.”...“The single most important thing that we can do and were already going to [do] regardless of the Kavanaugh decision was to make sure that students have an opportunity to volunteer in these elections this fall,” said Devontae A. Freeland ’19, the president of the Harvard College Democrats.

In 2015, seven years after the failure of Lehman Brothers brought the financial world to the brink of collapse, Dick Fuld, the former CEO, sold his Idaho mansion for around $30 million dollars, setting a record for private home auctions. It seems he was ready to leave his private trout-fishing stream and return to the world of high finance. Naturally, Dick Fuld lost significant sums of money when his bank collapsed. [Lucian] Bebchuk et al. (2010) calculate that, in 2000, Fuld owned about $200 million of Lehman Brother stock, which would eventually become worthless. Nevertheless, Fuld withdrew about $520 million from the bank between 2000 and 2008 in the form of cash bonuses and equity sales, none of which was accessible to Lehman’s creditors.

...Others said Kavanaugh’s comments were more than spur-of-the-moment outrage.“Rather than strive, as most others have done, to dissipate the partisan atmosphere, Judge Kavanaugh chose to throw the testimonial equivalent of gasoline on it,” Harvard law professor Richard Lazarus, formerly head of the Georgetown Law Center’s Supreme Court Institute, wrote in an email. “Perhaps out of uncontrolled fury at the nature of the accusations directed to him. Or perhaps based on a political calculation that it was the best or even only way to garner the support, including that of the tainted president who nominated him, necessary to maximize his prospects of confirmation. I do not know which it was.”

Yaseen Eldik graduated from Harvard Law School (HLS) in 2016. It was a period marked by “crippling, depressing anxiety,” unease rooted in the rhetoric of a xenophobic campaign season, and pressures associated with his chosen field and uncertain future. A spiritual person who had worked in the Obama White House’s Office of Faith-Based and Neighborhood Partnerships, Eldik spent much time that year, as in any year, in prayer...Fast-forward two years, and that space exists, thanks to an initiative spearheaded by Jeff McNaught, senior director of student affairs and administration, and to the counsel of Eldik himself. Opened at the start of 2017–18 academic year, HLS’ Interfaith Prayer and Meditation Space offers students a unique place for religious observance, meditation, and prayer...“Yaseen really helped to put my mind at ease when we were designing the space,” said McNaught. “...It’s been great to see this year how many students are using the room. Yaseen was right when he said that people would be happy to have a quiet, clean space with a few simple amenities for prayer.”...Also new during the last academic year is a meditation room in the renewed Winthrop House that reflects Faculty Deans Ronald S. Sullivan Jr. and Stephanie Robinson’s commitment to students finding agency for self-care.

A recent class-action lawsuit against the company claims LaCroix sparkling water has misled consumers by deeming itself “natural.”...“The biggest question still, the one that is dividing courts, is what counts as natural,” said Rebecca Tushnet, a Harvard law professor who specializes in false advertising. “It is genuinely hard to figure out what people expect the word to mean, and it’s genuinely hard to create a definition.”

There’s a quip attributed to LBJ that needs updating for 2020. “Whenever most senators look in a mirror, they see a president,” it goes. Elizabeth Warren’s mirror is a piece of legislation. The Massachusetts Democrat has introduced measures in recent months to transfer corporate governance to Washington and mandate social responsibility, by whatever definition it takes...“The [Accountable Capitalism] Act could also be expected to lead to additional distortions down the road,” writes Harvard Law professor Jessie Fried. Those distortions not only may be clumsy, but nefarious. “Once corporate law is federalized, Congress will be tempted to use its foot-hold in corporate governance to add more mandates and restrictions, ostensibly to address other ‘problems’ in corporate America, but actually to benefit key voting constituencies and campaign financiers.”

Can a Supreme Court Justice be impeached if the judge lied during confirmation hearings?..."If he lied under oath, certainly. But the question is always political, as Gerald Ford said, the question is just what Congress believes is impeachable," Lawrence Lessig, a Professor at Harvard Law School, said.

An op-ed by Samuel Garcia `19. I had just turned 18 years old when my dad died from a heart attack. The deep sorrow of his passing overwhelmed me, and I fell back on the only thing that has consistently brought me hope and peace — my faith. I am a practicing Catholic, and I hope that one day I can raise my children to be Catholic. However, I am acutely aware of the many things that must be changed within the church. The intention of this article is not to defend the church's transgressions, but to advance the position that there is hope for church reform. However, progressive reform measures can only be pursued if there are progressive members of the church around to advocate for them.

Nine reflections on #MeToo, one year on...Catharine A. MacKinnon: After four decades, or two thousand years, depending on when you start counting, indications are that #MeToo is working. The imposed silence that has walled off reports of sexual abuse is crumbling. Sexually abused women, and some men, are rising up; perpetrating men, and some women, are tumbling down. What was previously ignored or attributed to lying, deranged or venial discontents and whiners is being regarded and treated as disgraceful and outrageous misconduct with which no self-respecting company or university can afford to be associated.

...Yet was Kavanaugh actually threatening to change the court into a partisan institution... or was he unintentionally telling the truth, which is that it already is a partisan institution? To find out, Salon spoke with Laurence Tribe, the Carl M. Loeb University Professor at Harvard Law School. "In a book that I wrote with a colleague named Joshua Matz several years ago called 'Uncertain Justice: The Roberts Court and the Constitution,' I explored just how partisan the court was and concluded that really, with relatively few exceptions, it was much more even handed than people gave it credit for being," Tribe told Salon. "The court certainly lost a lot of its luster after Bush v. Gore, and it has from time to time vindicated the views of those who think of justices as just politicians in robes. But on the other hand, when Chief Justice [John] Roberts cast the decisive vote upholding the Affordable Care Act and a number of other equally notable occasions, the court has given people reason to trust it again."

It is easy to answer the question of how Brett M. Kavanaugh will be received by his fellow justices at the Supreme Court after a historically bitter and tumultuous confirmation battle: as one of nine equals, with whom they will work for the rest of their careers. The tougher question is how months of partisan warfare will affect the court’s image...The discretionary part of the docket will be an important thing to monitor, said Richard Lazarus, a Harvard law professor who closely watches the court. “One bellwether might be the nature of the legal issues the justices accept for review in the near future,” he said. Speculation has been that the newly energized right side of the court might want to take cases that push the envelope, now that the more moderate Justice Anthony M. Kennedy has been replaced by conservative Kavanaugh, Lazarus said. “Perhaps now those four, including Kavanaugh, might decide it is prudent for the court, for the good of the nation, to reduce the court’s profile,” he said.

After the angst of Justice Brett M. Kavanaugh’s confirmation proceedings, even Justice Elena Kagan is talking publicly about the damage to the Supreme Court’s credibility. I asked constitutional scholar Laurence H. Tribe and ethics guru Norman Eisen about the status of the high court and what could be done to shore up its standing with the American people...Tribe: The risk to the Supreme Court, as I suggested in a recent New York Times op-ed that Justice John Paul Stevens referenced before Judge Kavanaugh’s confirmation, is that the court will lose the trust of the American people — trust without which it can’t perform its vital functions as a balance wheel of democracy and a protector of vulnerable individual rights.