Media Mentions

An essay by Adrian Vermeule. One of the most curious features of life under political liberalism—for present purposes, the doctrine that the central task of politics is to promote individual autonomy and to secure its preconditions—is that all politics and political conversation happens at one step removed, one meta-level up. Instead of pursuing substantive excellence and justice, we have circuitous conversations about statistical properties like “diversity”; instead of deciding what ought to be permitted, what condemned, we debate “civility”; instead of discerning truth, we quarrel over “religious liberty”; instead of protecting the most vulnerable, we conceal our vices and crimes under the rubric of “choice,” in both market and non-market spheres (although to be fair there are almost no non-market spheres left any more). When we ask about Truth, liberalism answers “What is ‘Truth’? Your truth is not someone else’s truth, and it is no more legitimate to make your truth into public policy than it would be to force your taste in ice cream upon everyone else. All this is solely of private concern.”

...“United States v. Nixon was a watershed decision in establishing the core principle that not even the president is above the law,” emailed Laurence Tribe, a professor of constitutional law at Harvard. “[I]ts singular relevance in the present moment — when issues about the president’s amenability to judicial subpoenas and the like play a pivotal role — is obvious. … [Kavanaugh’s] analysis of the decision suggests an almost non-existent role for the federal judiciary in umpiring disputes between the president and the other branches of government.”

...But Harvard Law professor Richard Lazarus, whose quote about Kavanaugh being “an outstanding member of our teaching faculty” was included in the White House release, said Friday that many of the law professor comments fall short of actual endorsements. Lazarus said he deliberately took no position on whether the Senate should confirm Kavanaugh. “A look at the actual words of many of those academics stop well short of a formal endorsement of the nomination,” he said. “They instead heap deserved praise on Judge Kavanaugh for his outstanding contributions to our law schools, as a teacher in particular. The question of whether, in the current political climate, senators should vote for or against Judge Kavanaugh’s confirmation raises many additional considerations, which my quote does not go on to address.”

...Constitutional scholar Laurence Tribe tells me, “This is probably the clearest and most indefensible of Trump’s First Amendment violations.” He observes, “The idea that it could be covered up vis-à-vis the courts by blanket claims that national security is at issue strikes me as highly implausible.” He continues, “If the president [were] to make individualized findings that one of the officials he seeks to deprive . . . of security clearance has in fact [abused] the privilege of using that security clearance by releasing classified information, that would be another thing. But to take an enemies list of this kind and threaten every member of it the way the president has done makes Nixon’s enemies list look trivial by comparison.”

...While many may think of Russia as an adversary and even an enemy, it has not been declared so. An “enemy,” Harvard Law School professor Laurence Tribe said in an email to The Post, “arguably” requires a formal state of war. “Some commentators,” Tribe writes with co-author Joshua Matz in “To End a Presidency: The Power of Impeachment,” “have argued that Russia also ranks among our ‘enemies’ ” because of its hacking to influence the 2016 election in Trump’s favor. The argument is “interesting and important,” they write, but “continued legal uncertainty about whether it is treasonous to lend ‘aid and comfort’ to Russia militates against basing an impeachment on this theory.” There are plenty of other potential crimes in the Russia investigation, they write, but probably not treason.

An op-ed by Isabel Finley `19. Later this week, Harvard Law School students will begin bidding on interview slots to kick off a months-long recruitment process for summer associate jobs at the nation’s top law firms. Harvard’s “Early Interview Program” is the largest such program in the country, and thanks to the Office of Career Services, students will arrive for interviews equipped with everything from emergency lint-rollers to fashion advice to a daily continental breakfast. What students won’t have, however, is basic information about their prospective employers’ discrimination and sexual harassment policies — despite organized efforts to require such disclosures in the wake of #MeToo.

Even before the Supreme Court struck down mandatory union fees for government workers last month, the next phase of the conservative legal campaign against public-sector unions was underway. In March, with the decision looming, lawyers representing government workers in Washington State asked a federal court to order one of the state’s largest public-employee unions “to disgorge and refund” fees that nonmembers had already paid. Similar lawsuits were filed in California, New Jersey, New York, Pennsylvania, Minnesota and Ohio...Beyond their legal claims, the cases share another striking detail: The lead counsel in each is a conservative lawyer named Jonathan F. Mitchell...Even so, Mr. Mitchell and his allies may get a favorable reception in the one court that really matters: the Supreme Court. “This court has shown itself to be so hostile to workers’ rights that they will find a way,” said Sharon Block of the Labor and Worklife Program at Harvard Law School, who is a former senior Labor Department official and National Labor Relations Board member.

...“There is no return on investment for students who attended schools like the Art Institute,” said Toby Merrill, director of the Project on Predatory Student Lending at Harvard Law School. “Taking out loans to pay the high prices that these schools charge benefits their investors while leaving students with mountains of debt and without the professional opportunities they were seeking.”

...HuffPost asked some constitutional scholars if it would be legal for lawmakers to make Trump’s interpreter share details from that meeting. Even they weren’t sure. “The legal territory is unsettled,” said Laurence Tribe, the Carl M. Loeb university professor and a professor of constitutional law at Harvard University. “I don’t think there is any authoritative on-point precedent either way.”

...Mark Wu, law professor at Harvard. Right now we’re still in the opening throes of a trade war. Both sides are testing each other’s resolve. The question is whether either side will blink, or whether they’ll continue to engage in some form of tit-for-tat escalation. So far, the scale of trade affected by the $34 billion in tariffs is not that large; both economies believe that they can withstand the short-term negative impact. Neither President Trump nor President Xi Jinping can afford to appear weak to their domestic constituency. Each has painted the other side’s actions as unreasonable. But ultimately, both leaders realize that they need each other’s cooperation on a wide range of other non-economic issues. Against this backdrop, each side is gauging the likelihood of the other side yielding further.

An op-ed by Mark Roe. Translated from the French: It’s commonly thought that the stock market forces firms toward excessively short-term strategies. This expected short-termism is often thought to be a source of a good part of our current economic problems, leading policymakers to consider laws . . . to reduce stockholders’ influence...Although some local observations that are consistent, the evidence of an economy-wide impact is thin . . . .R&D expenses [thought to be a victim of stock-markets] have been rising, not falling, even while stockholder influence is thought to be rising. And, contrary to the idea that short-termism is draining cash [for investment] from large American enterprises, corporate treasuries are more flush with cash than ever. Why the gap between received wisdom and the weak supporting evidence?

...Some ask how to ensure that a positive economic effect is felt more broadly? "Even if people know that trade, in theory, leads to a more prosperous future, they worry that they may end up grasping the short end of the stick," Mark Wu, a professor of law at Harvard Law School, told Politico.

An op-ed by Randall Kennedy...It was precisely because of widespread colorism that James Brown’s anthem “Say It Loud, I’m Black and I’m Proud” posed a challenge, felt so exhilarating, and resonated so powerfully. It still does. Much has changed over the past half century. But, alas, the need to defend blackness against derision continues.

...“Trump’s betrayal of America in Helsinki adds quite a bit to the case for moving toward possible impeachment,” [Laurence] Tribe told the Washington Examiner. But it takes away none of the risks, which Tribe outlines in his new book with Joshua Matz on the subject, To End a Presidency. “Appointing a select bipartisan joint House-Senate committee with subpoena power entrusted to both the majority and the minority, charged to investigate what happened during the 2-hour closed meeting between Trump and Putin, and to explore all aspects of Trump’s peculiar stance toward the Russian Federation, would make sense as a minimum first step even before the midterms,” Tribe said in an email to the Washington Examiner.

With little public scrutiny, the health insurance industry has joined forces with data brokers to vacuum up personal details about hundreds of millions of Americans, including, odds are, many readers of this story. The companies are tracking your race, education level, TV habits, marital status, net worth. They’re collecting what you post on social media, whether you’re behind on your bills, what you order online. Then they feed this information into complicated computer algorithms that spit out predictions about how much your health care could cost them...Robert Greenwald, faculty director of Harvard Law School’s Center for Health Law and Policy Innovation, said insurance companies still cherry-pick, but now they’re subtler. The center analyzes health insurance plans to see if they discriminate. He said insurers will do things like failing to include enough information about which drugs a plan covers — which pushes sick people who need specific medications elsewhere. Or they may change the things a plan covers, or how much a patient has to pay for a type of care, after a patient has enrolled. Or, Greenwald added, they might exclude or limit certain types of providers from their networks — like those who have skill caring for patients with HIV or hepatitis C.

An op-ed by Elizabeth Bartholet. Outrage has been expressed by virtually all commenting on the president’s policy separating migrant children from their parents. Critics have expressed horror at the audios of crying children, and have condemned the harm they will suffer as a result of being torn from parents and placed in institutions or foster homes. This outrage is right. These children will suffer, and innocent children should not be used as pawns in the Administration’s war against immigrants...But where is the outrage at the U.S. government policies requiring that infants and children worldwide be imprisoned in institutions and denied available homes in international adoption?

The 2016 presidential election is over, but debate surrounding the fairness of the Electoral College rages on — with one major twist. You've probably never heard of Lawrence Lessig. The liberal political activist and Harvard law professor ran for the Democratic presidential nomination in 2016, but was unable to get his name on the ballot. Alongside voter rights advocates, Lessig is now suing one of the most liberal states in the country, arguing that California's winner-take-all system disenfranchises Republican voters.

An op-ed by Cass Sunstein. Many people feel devastated after their favorite team loses. Sometimes they have trouble sleeping. (Yes, I speak from personal experience.) That raises some legitimate questions: Why suffer? Is it even rational to be a sports fan? Recent research suggests that it might not be. On average, soccer, the most popular sport on the planet, makes people a lot less happy. The lesson is that if you’re strongly attached to your local team, you might be better off if you decide to disengage — starting right now.

An op-ed by Noah Feldman. Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted. Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.

...Monday’s seminar was part of the Warrior-Scholar Project, an academic boot camp intended to help provide members of the armed forces or those recently discharged with the skills and confidence to transition to top-tier colleges. This marks the fifth year that Harvard has been a host of the summertime program that is offered at 17 major universities nationwide...Michael J. Klarman, the Kirkland & Ellis Professor at Harvard Law School, is now in his third year teaching a boot camp seminar. He said the experience has been rewarding.“The Warrior/Scholars are engaged, well-prepared, intellectually curious, and full of interesting ideas and questions,” he said by email.

When Elena Kagan was dean of Harvard Law School, she was in search of rising conservative legal stars. The traditionally liberal campus, the thinking went, could use a little ideological diversity with more robust debate and the challenge of different viewpoints. Among Kagan’s hires, as a visiting professor, was a newly appointed federal appeals court judge from Washington named Brett Kavanaugh...“He had large signups. The students obviously appreciated him,” said Charles Fried, a longtime Harvard Law professor who was solicitor general under president Ronald Reagan but later supported Barack Obama...“He sits and talks with everybody. He’s a very nice colleague — a very intelligent, interesting, and well-spoken man,” Fried said. “I don’t agree with a number of decisions he’s handed down on the D.C. circuit, but I think people are discreet enough — it’s not an occasion to confront anybody, and I don’t believe he has been.”