Media Mentions

An op-ed by Jack Goldsmith. President Trump’s revocation of former CIA Director John Brennan’s security clearance brings together in an unfortunate way two pathological trends in the Trump era, and highlights the conundrum of the former intelligence official who wishes to speak out against the president’s attacks on the Russia investigation and the intelligence community more generally. The first trend is the politicization of intelligence.

...perhaps another body of Kavanaugh’s work warrants closer inspection: the twenty-four articles that he wrote, from 1983 to ’86, as a sports reporter for the Yale Daily News...Laurence Tribe, a Harvard Law professor who mentored Barack Obama, zeroed in on the lead sentence in Kavanaugh’s account of a midseason game against Cornell: “In basketball, as in few other team sports, it is possible for one person to completely dominate a game.” Was this a harmless observation? Tribe noted, “Kavanaugh’s seeming fascination with single-player domination might be a muscular view of executive power.” On the other hand, he found a departure from Kavanaugh’s typical jurisprudence in “Dartmouth Rally Upends Streak.” “Kavanaugh complained that the refs let the game ‘get completely out of control’ as Dartmouth players ‘consistently hammered’ a Yalie ‘without the whistle blowing’ once,” Tribe said. “One might see in that a rare early condemnation of judicial restraint.”

An op-ed by Nancy Gertner. It is not unusual for judges to intervene in court proceedings from time to time — to direct the lawyers to move the case along or to admonish them that evidence is repetitive. The judge's role is to act not as a "mere moderator," as the Supreme Court noted in Herron v. Southern Pacific in 1931, but as the "governor of the trial" responsible for assuring the proper conduct of all participants. The performance of U.S. District Court Judge T.S. Ellis III in the trial of Paul Manafort on bank fraud and tax evasion charges has been decidedly unusual. During the trial, Ellis intervened regularly, and mainly against one side: the prosecution. The judge's interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He disparaged the prosecution's evidence, misstated its legal theories, even implied that prosecutors had disobeyed his orders when they had not.

Elizabeth Warren has a big idea that challenges how the Democratic Party thinks about solving the problem of inequality. Instead of advocating for expensive new social programs like free college or health care, she’s introducing a bill Wednesday, the Accountable Capitalism Act, that would redistribute trillions of dollars from rich executives and shareholders to the middle class — without costing a dime...This is, of course, not an uncontested view. Jesse Fried and Charles Wang argued earlier this year that the real amount of buybacks is overstated by politicians who focus on gross share repurchases that are partially offset by new share issuances.

...To this day, Ginsburg's opinion in EPA v. EME Homer City Generation LP remains the only time the Supreme Court has reversed one of Kavanaugh's environmental rulings on the U.S. Court of Appeals for the District of Columbia Circuit. A George W. Bush appointee, Kavanaugh has been on the D.C. Circuit for a dozen years. The case provides a glimpse into the nominee's broader approach to environmental law and how that may translate on the Supreme Court bench. "It's a very significant case. It's a huge environmental regulation at stake," said Richard Lazarus, a professor at Harvard Law School who has argued in front of the Supreme Court more than a dozen times. "It shows you exactly the potential divide between Kennedy and Kavanaugh, and also between Roberts and Kavanaugh. "That's why it's the most significant data point for environmental law in thinking about Kavanaugh's nomination," he said.

...Two new papers look at the effects of the programme in its earlier incarnation. They find that it succeeded in its stated goal of removing undocumented workers—but it also reduced access to jobs, health care and nutrition for migrants and citizens alike...Marcella Alsan of Stanford University and Crystal Yang of Harvard University looked at access to welfare and health-care enrollment...Ms Alsan and Ms Yang found that the rollout of Secure Communities was associated with a 10% decline in food-stamp use among eligible Hispanic households. They also estimate that health-care coverage under the Affordable Care Act would have been 22% higher among eligible Hispanic households had Secure Communities not been in place, because of fears that any interaction with officials might lead to friends or family being deported.

At least 125 Republican campaigns and conservative political groups spent more than $3.5 million at President Donald Trump’s resorts, hotels and restaurants since January 2017...“Trump’s use of his high office to exact tribute from the multitude of American politicians and hangers-on who are quite willing to fill his coffers in order to win him to their side doesn’t violate the emoluments clauses or constitute high crimes and misdemeanors (unless out-and-out bribery can be proven), but [it] stinks to high heaven anyway,” says constitutional scholar Laurence H. Tribe. “Trump’s selling of the presidency is of a piece with the self-serving and self-aggrandizing approach he has taken to his entire adult life as a user, cheater, and exploiter of others. It’s neither criminal nor impeachable for Trump to besmirch the highest office in the land, but it certainly highlights his unfitness for that office and the burden that his leaving it will lift from America’s soul.”

...In 2008, Harvard Law professors Cass Sunstein and Adrian Vermeule penned an article on conspiracy theories and how they work. They argued that conspiracy theories — which they define as “an effort to explain some event or practice by reference to the machinations of powerful people, who have also managed to conceal their role” — are, in their own way, quite rational. “Most people are not able to know, on the basis of personal or direct knowledge, why an airplane crashed, or why a leader was assassinated, or why a terrorist attack succeeded,” they wrote. As a result, they search for information that fits what they already believe about the world and is confirmed by people they trust. Conspiracy theories, Sunstein and Vermeule argued, spread in a variety of ways. One of these pathways, called an “availability cascade,” happens when a group of people accept a conspiracy theory because their preexisting beliefs about the world make them likely to believe it.

One of the internet’s most odious conspiracy theorists has had his videos and podcasts removed from Apple, YouTube, Spotify and Facebook. Alex Jones (pictured), who has a radio show and runs a few websites, including Infowars, has raised doubts about the murders of 26 children and teachers in the Sandy Hook mass shooting, claiming the story was manufactured by gun-control advocates...Laurence Tribe, a constitutional-law expert at Harvard, points out a small but fascinating caveat to this bright line between governmental and private censorship. “A very limited set of nominally private actors have been recognised as essentially governmental,” he says, in a few narrow contexts. For example, in Marsh v Alabama (1946), a company-owned town was told the First Amendment prevented it from arresting a Jehovah’s Witness for distributing religious pamphlets near a post office. The Supreme Court ruled that the town, though privately owned, functioned like a traditional municipality and needed to respect the proselytiser's constitutional rights.

Medicaid home care aides — hourly workers who help the elderly and disabled with daily tasks like eating, getting dressed and bathing — are emerging as the latest target in the ongoing power struggle between conservatives and organized labor...A proposed rule from the federal Centers for Medicare & Medicaid Services would prohibit home health aides paid directly by Medicaid from having their union dues automatically deducted from their paychecks, though it doesn’t name the fees explicitly...“When a state pays a worker, and the worker pays the union, it’s the worker’s money going into the union,” said Benjamin Sachs, a professor at Harvard Law School who studies labor law. “CMS doesn’t have the authority to decide.”

Even as the White House began cracking down on U.S. work visas, major Silicon Valley technology firms last year dramatically ramped up hiring of workers under the controversial H-1B visa program, according to newly released data...Vivek Wadhwa, a distinguished fellow at Harvard Law School and Carnegie Mellon’s School of Engineering at Silicon Valley, believes the solution is to give H-1B preference to start-ups and tech companies — not third-party agencies. “I’m a strong proponent of skilled immigration,” said Wadhwa, who studies the positive contributions of immigrants. “The only H-1Bs should be direct employees of these companies.”

Going private is not as easy as it looks, especially if you go down a path proposed by the mercurial Elon Musk, founder and largest shareholder of Tesla Inc...John Coates, a professor of law and economics at Harvard Law School, told MarketWatch in an email, “I know of no legal way to offer public shareholders of a listed company an equity security while also going private. I also know of no legal way to offer $X billion worth securities of any kind to more than 35 unaccredited investors without registering with the SEC.”

It's no secret Elon Musk and Tesla have been afforded considerable leeway by their loyal following of shareholders...Generally, it is 'qualified' or 'accredited' investors who have the ability to own stock in private companies, or buyouts. "I know of no legal way to offer public shareholders of a listed company an equity security while also going private," says John Coates, an expert in mergers and transactions at Harvard Law School. He adds by email to Forbes, "I also know of no legal way to offer $X billion worth securities of any kind to more than 35 unaccredited investors, without registering the offering with the SEC."

A Harvard Law professor, former governor William F. Weld, and Al Gore’s onetime attorney are making a long-shot bid to change the Electoral College system, arguing that it encourages presidential candidates to devote all their time to a handful of swing states and ignore the vast majority of the country.The high-powered group is suing two blue states, Massachusetts and California, and two red states, Texas and South Carolina, arguing that the winner-take-all system that they and 44 other states use to allocate electors to the Electoral College effectively disenfranchises millions of voters who back the losing candidates...The lawsuits were orchestrated by Lawrence Lessig, a Harvard Law professor and longtime critic of the Electoral College, corporate money in politics, and gerrymandering, who briefly ran for the Democratic presidential nomination in 2015. He hopes to get the case to the Supreme Court before the 2020 presidential election.

Nearly 100 leaders and faculty members at Harvard and its affiliated hospitals have signed a letter calling on the Environmental Protection Agency (EPA) to withdraw its proposed rule on scientific “transparency,” saying that the change would drastically limit the scientific and medical knowledge that underlies a host of EPA regulations that protect human health...The letter was drafted by Wendy Jacobs, Emmett Clinical Professor of Environmental Law and director of Harvard Law School’s Emmett Environmental Law and Policy Clinic, together with clinic staff and with input from faculty members about the rule’s potential scientific and health ramifications. It was submitted to the EPA on Tuesday during the public comment period on the proposed rule, which is called “Strengthening Transparency in Regulatory Science.”

An op-ed by Noah Feldman. On the surface it sounds like a sick joke. The German drug manufacturer Fresenius Kabi is suing to block an execution in Nebraska — not because it opposes capital punishment, but because it would be bad for the company’s public relations for its drugs to be used to kill. It’s not the first time. Other drug companies have also tried to block executions using their products for similar reasons. A federal district judge rejected Fresenius’s suit Friday, but the company has appealed. Regardless of whether the Nebraska execution, scheduled for Tuesday, is delayed or halted, the effort is worth examining.

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.