Media Mentions

An op-ed by Noah Feldman. President Donald Trump says trade wars are easy to win, but that hasn’t always been true in U.S. history. To the contrary, for the first 40 years of the republic, the founders struggled desperately to establish international trade agreements that Americans would find acceptable. The need for trade leverage was the first factor motivating James Madison to call for a new Constitution. And trade wars had a way of turning into shooting wars. The War of 1812, the first declared war in U.S. history, was the result of a trade fight that the Americans seemed unable to win with economic sanctions alone.

An article by Jack Goldsmith. Tuesday is the release date for an extraordinary collection of essays published under the title: Can It Happen Here? Authoritarianism in America...My essay traces the history of the national security Deep State from J. Edgar Hoover's FBI to the present; shows how the Deep State’s reaction to Trump has been norm-defiant and damaging yet at the same time possibly necessary; and concludes pessimistically by explaining how and why the battle of “Trump v. Deep State” has been harmful to our national security institutions. Collections of essays are often dull affairs, but this one isn’t.

An op-ed by Alex Whiting. Is there a fundamental weakness in the potential case of obstruction against President Donald Trump?...The relevant federal criminal provision — 18 U.S.C. § 1512(c)(2) — makes it a crime to obstruct “any official proceeding, or attempt[] to do so.” The statute specifies that “an official proceeding need not be pending or about to be instituted at the time of the offense.” However, as Estreicher and Moosman argue, relying on the Supreme Court’s decision in Arthur Andersen LLP v. United States, prosecutors bringing charges under 18 U.S.C. § 1512 must at a minimum show that an official proceeding, such as a grand jury investigation, was foreseen, and that the defendant knew that his actions would likely affect those proceedings.

Robert Adler was a thirtysomething attorney at a small Washington firm in the late 1970s when a woman arrived in his office to discuss her problems at work. The woman, Sandra Bundy, was an employment specialist at DC’s Department of Corrections, where she helped former inmates find jobs after their release. About four years earlier, she explained, her superiors had begun making repeated—and unwanted—sexual advances toward her. After she rebuffed them, things got worse...As Adler listened to her story, however, he felt compelled to act. In 1977, Bundy sued the director of the Corrections Department in federal court. “I had no optimism that we were going to win this thing, because we were really in uncharted waters,” Adler says. “But I didn’t care.” Today, some 40 years after she first walked into Adler’s office, Bundy’s lawsuit is considered a seminal event in the establishment of sexual harassment as a legal concept in America. “What is so incredibly significant about the case was finding that sexual harassment itself—the doing of it—was sex discrimination,” says Catharine MacKinnon, a University of Michigan law professor and a leading scholar on the issue. “That has been world-changing.”

Race-related activism is re-emerging at Harvard Law School after a group of Law students wore pink armbands and hung posters last month to “stand in solidarity with people of color” following incidents of racism at Stanford Law School in the fall...First-year Law student Felipe D. Hernandez [`20], along with 11 other students who chose to remain anonymous, wrote a Feb. 2018 letter published in the Harvard Law Record arguing the Law School also struggles with racism...While the campaign was not officially organized by any formal affinity groups, president of the Harvard Black Law Students Association Jazzmin A. Carr [`18] praised it in an emailed statement, writing her group “stands in solidarity” with its organizers...The Harvard Law Record letter specifically criticized the structure of the financial aid system, the perception that the school is not geared toward public interest, and the first-year curriculum. Law School Dean of Students Marcia L. Sells emphasized the school takes these issues seriously and is working to improve the school’s culture and offerings. “The student financial services office advisory group is looking at the Loan Income Protection Plan. LIPP is something that is always being looked at,” Sells said in an interview last week, addressing criticisms of the school’s financial aid and public interest programs.

Busy penning holiday cards in 1975 at his home in Cambridge, Law School Professor Frank E. A. Sander ’48 started in surprise: He had received a telegram from Supreme Court Chief Justice Warren E. Burger. The Chief Justice had telegramed to say he was impressed with Sander’s newly circulating ideas about alternative dispute resolution. In the coming months, Sander would pioneer this form of dispute resolution as an entirely new method of legal mediation. Sander, the Bussey Professor Emeritus at the Law School, died on Feb. 25. He was 90...Harvard law lecturer David A. Hoffman credited Sander with almost single-handedly creating field of dispute resolution. “It’s surprising now to think about the fact that negotiation was not widely taught in the years that he spent in the Law School,” Hoffman said...Law Professor Martha L. Minow, who played violin and piano with Sander in chamber music events he organized, said Sander’s talents as a musician helped define who he was as a professor. “To play chamber music, you play alongside other people,” Minow said. “You pay close attention to where others are, and when you do, you can actually make something better than what you could do by yourself.”

...Daily Table doesn’t look like a typical supermarket; It is smaller and laid out more like a Trader Joe’s, where Rauch was president for 14 years. In 2013, Rauch went on a national media tour to explain his mission: a store that would stock food that had passed its sell-by date, salvaging still perfectly good food from the landfill and getting it to people who need it. Some hailed the idea as a breakthrough. Others worried that selling expired food to poor people was demeaning. But Rauch argued that he could create a sustainable business model that could to solve food waste and hunger at the same time...Sell-by dates result in over 160 billion pounds of healthy food that’s discarded each year, said Emily Broad Leib, director of Harvard’s Food Law and Policy Clinic, who has worked with Rauch to push for national changes to the regulations.

A significant recent revelation in the Russia investigation has been largely overlooked in the rush of several breaking news stories over the past few days. A nugget of information is contained in the memo written by Democrats on the House Intelligence Committee (the so-called Schiff Memo), which was released on Saturday morning...In addition to direct involvement in campaign finance law violations or a conspiracy, Alex Whiting, a professor at Harvard Law School and former federal prosecutor, spelled out in detail the potential case for accomplice liability for Papadopoulos and any other campaign officials who may have given him instructions. The most relevant legal question here turns on whether Papadopoulos intentionally encouraged the Russians once they previewed that they were prepared to disseminate the stolen emails.

A quick way to understand the drastic shift in prospects for shareholders who bring appraisal actions challenging the value of their stake in acquired companies is to read an exchange of briefs this week in a hedge fund appraisal action against Aruba Networks...Wachtell is convinced the appraisal reboot is good for shareholders. Harvard law professor Guhan Subramanian isn’t so sure. In an essay entitled "Appraisal after Dell," which is cited in Grant’s motion for rehearing in the Aruba case, Subramanian posits that the Delaware Supreme Court has made it almost impossible for shareholders to strike back at inadequate or conflicted deal processes, calling the new risk for dissenting shareholders “a step in the wrong direction.”

Frank Sander, who escaped Nazi Germany as an 11-year-old boy in 1938, became a professor at Harvard Law School and by the mid-1970s established himself as an authority on family and tax cases...Mr. Sander died on Feb. 25 in Concord, Mass. He was 90. His 1976 paper “came at a moment when there was a sense that courts were overwhelmed and not doing a very good job” at resolving many disputes, said Robert Bordone, a Harvard law professor. Arbitration was already common in labor disputes then, but mediation and negotiating skills generally weren’t taught in law schools. Now these methods are commonly used in such areas as divorce and consumer complaints, among many others.

...To some, our phones and apps are little more than a distraction; to others, they're nothing short of an existential threat. But the vast majority of critics—and more and more companies—agree: People could use help deciding where to place their attention, to ensure that their time with technology is—to borrow an increasingly fashionable phrase—time well spent. And make no mistake: We users do need help. And that help can take a form that's subtle and effective...But our susceptibilities also make us receptive to something Harvard legal scholar Cass Sunstein calls libertarian paternalism, a term he coined with Nobel Prize-winning economist Richard Thaler to describe "nudges" by which institutions help people make better choices (as judged by themselves), while preserving their freedom to make those choices at as low a cost as possible...The question for tech giants, Sunstein says, is not whether they should engage in libertarian paternalism, but the ends to which they do so. "For companies like Facebook and Apple, there is a pressing need for a lot more thought on the goals of choice architecture," he says.

Frank E.A. Sander, a longtime Harvard Law School professor known as a mentor to many and a pioneer in the field of alternative dispute resolution, died Feb. 25. He was 90 years old and lived in Cambridge, Massachusetts. Sander, on the Harvard faculty from 1959 to 2006, authored numerous books on ADR, taught the topic at Harvard and had a profound impact on those who knew him, worked with him and learned from him...His colleagues at Harvard said Sander was an advocate for his profession and ADR and will be missed. “Frank played a preeminent role in shaping that (ADR) important discipline, which has transformed our legal system,” said Harvard Law School Dean John Manning in a press release. “He was a beloved teacher and mentor to our students, a wise and selfless administrator at our school, and a cherished colleague and friend to faculty and staff.”

Potential Mayoral candidate Adrian Perkins [`18] is sounding like he is in the race to be the next Mayor of Shreveport. He recently wrote this for the Harvard Law Record: "I am resigning as Student Government President to prepare to run for local office in my hometown of Shreveport, Louisiana." He adds: "the future in Shreveport is not so promising, which has spurred me to answer to another commitment that I made: to do all that I can for the community that raised me."

An interview with Vivek Krishnamurthy. Can the federal government compel a U.S.-based email provider to turn over its records as part of a criminal investigation when those records are located outside of the country? The United States v. Microsoft case pending before the Supreme Court could have big implications for law enforcement, consumer privacy and the business operations of many companies that do business overseas.

...The movement’s roots and its present and future impact were the focus of a discussion with Harvard scholars on Monday night at the Radcliffe Institute for Advanced Study, organized by the Schlesinger Library on the History of Women in America and moderated by Ann Marie Lipinski, curator of Harvard’s Nieman Foundation for Journalism...For Harvard Law School’s Jeannie Suk Gersen, recent statements from U.S. Supreme Court Associate Justice Ruth Bader Ginsburg point to another divisive debate. Asked about the #MeToo movement in a recent interview, Ginsburg said due process must not be ignored. Gersen, the John H. Watson Jr. Professor of Law, agreed. “One of the salient, and in my mind, very unfortunate aspects of the current moment is how a commitment to due process or fairness has become associated with one side, with men’s rights, with Betsy DeVos and her decision to rescind the Obama administration’s policies on Title IX,” which protects people from sex discrimination in education or other programs receiving federal aid, said Gersen.

An op-ed by Susan Crawford. ...New York was supposed to be a model for how the modern city could launch high-speed internet for its residents. When the Bloomberg mayoral administration re-signed an agreement with Verizon in 2008, it required that the company wire all residential buildings with its fiber service, FiOS. The agreement was heralded by the press as a way of triggering competition— the presence of Verizon’s fiber product would end the local monopoly of Time Warner Cable, now Spectrum, which provides internet access over a different, lower-capacity wire called hybrid fiber-coaxial. Cable internet access dominates most cities, but it often loses market share to more reasonably priced fiber offerings.

An op-ed by Cass Sunstein. Very quietly, the Trump administration recently issued a draft of its annual report on the costs and benefits of federal regulations. It’s a responsible and highly professional document — and a corrective to the noisiest claims, from both the White House and its critics, on the whole topic of regulation. The report is required by the Regulatory Right-to-Know Act, enacted in 2000. Since that time, Republican and Democratic administrations have cataloged the costs and benefits of federal regulations.

...The tragedy in Parkland was the 18th school shooting this year. Over the past 17 years, there have been more than 185 shootings at schools and universities, according to a report by the Chicago Tribune. But this time, the response has been different. In the 14 days since Nikolas Cruz, 19, allegedly set off a school fire alarm and gunned down victims as they left their classrooms, their fellow students and scores of others around the country have staged walkouts and other protests demanding that lawmakers and the Trump administration do something to curb the epidemic of violence...But Laurence Tribe, professor of constitutional law at Harvard University, told Courthouse News that a legal challenge to an order banning bump stocks wouldn’t fly. “Nor do I think any new constitutional amendment dealing with guns makes the slightest bit of sense,” he said.

An op-ed by Noah Feldman. The revelation that the New Orleans Police Department quietly used a Silicon Valley company to predict crime raises dilemmas similar to those emerging from artificial intelligence in other spheres, like consumer behavior, medicine and employment. But what's uniquely shocking about the story of New Orleans's partnership with the national security company Palantir is that it has remained largely unreported before now.

An interview with Lawrence Lessig. Harvard law professor and political activist Lawrence Lessig briefly ran for president in 2015, but his campaign was more of an effort to spread a message than win a job. He called it “a referendum” on campaign finance reform and electoral reform. More than two years later, Lessig is still working on those big issues. But instead of using a presidential run as a vehicle for them, he’s going directly to the courts.

It's a fact that liberals crazy, and has become a preoccupation for President Donald Trump: Hillary Clinton, the Democrats' choice, crushed Trump at the ballot box, winning the popular vote by a margin of roughly 3 million, but Trump cruised to a win in the Electoral College, sweeping up 304 of 538 votes. It was the second time in recent history that the winning presidential candidate, a Republican, took office even though more people voted for the Democrat. It's also a system Harvard law professor Lawrence Lessig believes is a Constitutional offense – and practically guarantees another popular-vote loser will again become commander-in-chief in the very near future. Every four years, the presidential election "focuses on 14 [swing] states, to the total exclusion of the rest of the country," says Lessig, who ran an under-the-radar campaign for president as an independent in 2016.