Media Mentions

An op-ed by Cass Sunstein. There is talk these days about a complex and somewhat arcane legal concept: obstruction of justice. The term refers, broadly speaking, to willful efforts to interfere with the operations of the legal process, including criminal investigations. Let’s bracket the hardest definitional puzzles for now, and ask a question that could become pressing before long: What happens if special counsel Robert Mueller concludes that President Donald Trump has, in fact, obstructed justice? In answering, we should take a vow of neutrality. We should not allow our views about any particular president — negative or positive — to color our understanding of the meaning of the Constitution.

The housing advocates began to descend on the State House early Wednesday afternoon for one last push for the Jim Brooks Stabilization Act — a city-backed measure they say could help prevent tenant displacement amid Boston’s housing crunch. But then, as advocates prepared to hoist their banner, word began to spread: A legislative committee had just killed the proposal...The home rule process, which is meant to ensure state oversight of municipal matters involving taxes, fees, and elections, is strict in Massachusetts, relative to other states, legal experts say. A Harvard University law researcher described in a 2004 report how a home rule petition can halt a minor municipal plan, such as to regulate dog fees. “We need a new way of thinking about home rule, one that would empower cities and towns to work together to solve regional problems, not just go to the state with hat in hand — or dig in their heels against changes they have little power to control,” wrote David J. Barron, the Harvard Law School researcher, who is now a federal appeals court judge in Boston.

...Today's trading system may be bent, but it is not broken. Import tariffs are low. Quotas are relatively uncommon. In 2016, some $15.4trn of merchandise flowed between countries belonging to the World Trade Organization...Then there is China. After its entry into the WTO in 2001, its government cut tariffs and undertook domestic policy reform. But its economic model of state-infused capitalism, referred to by Harvard Law Professor Mark Wu as “China, Inc”, also evolved in ways that sat awkwardly alongside the world’s trade rules. The “Made in China 2025” industrial policy, its apparent tolerance of industrial espionage and intellectual-property theft from foreign companies, and its cheap loans from state-owned banks to Chinese manufacturers all rub up against the spirit, if not the letter, of the global trading system.

...Laurence Tribe, constitutional scholar and co-author of “To End a Presidency: The Power of Impeachment,” explains, “Rudy Giuliani’s casual comment that, being president, Mr. Trump has no obligation to comply with a judicially approved subpoena lacked any legal basis and must have been a PR comment addressed to uninformed members of the public rather than a legal remark addressed to the judges who would ultimately rule on a claim of sweeping presidential immunity to legal process. No American president has ever defied such a subpoena.”

An op-ed by Noah Feldman. Now that we are finished with the spectacle of the U.S. House chaplain being forced out, then withdrawing his resignation and returning to his post, it’s a good time to ask a question that may have been bothering you all along: Why, exactly, does Congress, bound by the establishment clause of the Constitution, have a paid chaplain to deliver prayers and minister to its members?

After Daniel Tarullo announced last year that he was resigning from the board of the Federal Reserve, big bank stocks such as Bank of America Corp. and Citigroup Inc. rallied. That was no surprise. The 65-year old longtime public servant was the primary architect of postcrisis financial regulations that imposed stricter requirements on big financial firms...The Boston native is now back home, teaching law at Harvard University. In an email, Mr. Tarullo wrote he has now made it through the fifth volume of Marcel Proust’s seven-volume “In Search of Lost Time.”

An op-ed by Laurence Tribe and Joshua Matz. The 2016 presidential election was the first campaign in American history marked by credible threats of impeachment against whoever won. This was partly because both Donald Trump and Hillary Clinton had long been shadowed by charges of corruption, criminality and conspiracy. But it also reflected a more unnerving development: the emergence of a permanent presidential impeachment campaign. Since the failed effort to oust President Bill Clinton two decades ago, calls to remove the president have become standard fare in American politics. In a stark break from the past, a whole generation has come to view impeachment talk as an ordinary feature of our partisan civil war, in which nothing is sacred and the Constitution has been weaponized. This degradation of presidential impeachment is dangerous.

...In response to Kennedy’s narrow conception of corruption, Harvard Law professor and onetime presidential contender Lawrence Lessig has advocated for a broader idea of corruption. In his book Republic, Lost, Lessig spells out his notion of “dependence corruption,” whereby Congress is unduly responsive to big donors because they are dependent on them for campaign money. He takes pains to argue on “originalist” grounds, hoping to appeal to the conservative majority of the Court, who attempt to cleave closely to the meaning of words as they are found in documents at the time of the Constitution’s drafting. Alas, his arguments have largely fallen on deaf judicial ears.

Xerox Corp (XRX.N) on Friday appealed a New York court ruling to block its deal with Fujifilm Holdings (4901.T), just hours after the company announced that its ousted CEO and directors would remain in place. Xerox said its entire board and management team would stay, as the agreement to oust them reached with dissenting shareholders Darwin Deason and Carl Icahn expired late Thursday. “With the caveat that I have not been privy to these negotiations, I find the rejection of the settlement by the Xerox board to be extraordinary and highly unusual,” said Guhan Subramanian, a professor at Harvard’s law and business schools who served as an expert witness for Xerox in the litigation.

As we lurch through the second year of Trump administration, it’s hard to know whether to just give up the whole rule-of-law thing or rejoice at the very faint stirrings of conscience appearing on Capitol Hill...Jack Goldsmith of Harvard Law School, who during the George W. Bush Administration forced the withdrawal of the infamous “torture memos,” wrote in an email that the debate over AUMF renewal is “political theater.” He wrote, “I do not think passage of the Corker-Kaine bill matters to anything real. The nation supports, or at least acquiesces in, the stealth Forever War, for better or worse.”

...Bill Lee, 68, a partner at WilmerHale in Boston, skirted his law firm’s mandatory retirement age of 65 when its management committee granted him a waiver. Lee also teaches at Harvard Law School and serves as senior fellow of the Harvard Corporation, one of the university’s governing boards, where he recently led the school’s search for a new president. Last month, he was in California consulting with Apple Inc., which he represents in its long-running patent litigation with Samsung. “When I walk into the office in the morning, people say, ‘How are things?’ ” Lee said. “I say, ‘Great. I’m past mandatory retirement age, and they haven’t locked the doors.’ ”

An op-ed by Noah Feldman. There’s something extremely fishy about President Donald Trump’s tweets on Thursday morning about the source of the money his lawyer Michael Cohen paid to Stormy Daniels as part of a nondisclosure agreement. Trump, echoing what his lawyer Rudy Giuliani said Wednesday night on Fox News, seems to be claiming that a $35,000 retainer he paid to Cohen on a monthly basis should be considered reimbursement. But a retainer isn’t reimbursement. A retainer is a fee for services. And a fee paid to a lawyer isn’t normally reimbursement unless there is some agreement saying it is.

It took three years of fighting for access to confidential drug information, but a Quebec bioethicist has punched a tiny hole in the iron wall of secrecy surrounding patented drug prices. Two weeks ago, Jean-Christophe Bé​lisle Pipon won a long battle to force the Quebec Health Ministry to tell him how much it paid for a new meningitis vaccine. The answer — $90 for the first 8,500 doses and $78 for the next 110,000 — was more than twice as much as the U.K apparently paid, and much higher than the price that Quebec officials deemed to be cost effective..."If we want to work toward a more responsible world then we need to continue to force governments and especially industry to release such information," Bé​lisle Pipon told CBC News...He finally received the information on April 20. Those documents revealed that the province managed to negotiate a deal that was significantly less than the list price for the vaccine, around $130 per dose. "It's lower than the listed price but it's still higher than what would make it cost effective," said Bé​lisle Pipon, who is now a postdoctoral fellow at the Petrie-Flom Center at Harvard Law School.

Three Planned Parenthood affiliates sued Wednesday to demand taxpayer money keep flowing to the country’s largest abortion network, saying a new Trump administration policy appears designed to cut them out of family planning money. Affiliates in Wisconsin, Ohio and Utah said changes announced by Health and Human Services would boost clinics that focus on abstinence rather than providing contraceptives. They said HHS didn’t follow the law last year when it issued the new funding priorities for doling out money under Title X, which is the government’s main family planning fund...In 1991, the Supreme Court upheld HHS rules prohibiting clinics that receive Title X funds from advising or referring patients for abortion services. Glenn Cohen, a law professor at Harvard, said that kind of precedent suggests the government has latitude to set conditions on the funding. “Challenging an administration’s decision on what funding priorities to set, a litigant faces an uphill battle,” he said. Mr. Cohen said if the court were to decide HHS didn’t follow the proper steps when issuing its new policy, the government could go back and do it accordingly.

The Trump administration's plan to scrap vehicle fuel economy rules would lead to a surge of oil consumption that independent researchers warn threatens to paralyze the ability of the United States to make crucial progress in confronting climate change...The Trump administration plan aims to revoke California's authority to stick to stricter emissions. Legal scholars are dubious that it would succeed. "They are doing a retread of arguments that were made during the Geroge W. Bush administration," said Jody Freeman, who was President Obama's advisor on climate change and now directs the environmental law program at Harvard. Two federal district courts rejected the arguments at that time, she said.

After 30 years of pivotal decisions on the U.S. Supreme Court, Justice Anthony Kennedy is about to make his biggest one yet. For the second straight year, Kennedy, 81, is the focus of retirement speculation as the court approaches the late-June end of its term. A retirement by the court’s swing justice would give President Donald Trump his second Supreme Court vacancy to fill before Republicans’ Senate majority goes on the November election ballot..."Justice Kennedy is the most influential justice in the history of the Supreme Court, and it’s probably not even close," said Michael Klarman, who teaches constitutional history at Harvard Law School. "It’s almost hard to think of areas where the court divides 5-4 and Justice Kennedy is not the deciding vote."

An op-ed by Cass Sunstein. People do not, of course, have to pay to use Facebook. It’s free. The company’s revenues come mostly from advertising. But in light of recent controversies, there have been discussions, at least outside of Facebook, about changing the business model. What if people had to pay to use it? How much would they be willing to spend? Any answers would tell us something important about the value of social media in general. I recently conducted a pilot experiment to obtain some preliminary answers. Using Amazon’s Mechanical Turk, I tried to find out, from 400 Facebook users, exactly how much the platform is worth.

...In many ways, the Trump International D.C. is a proxy for the president himself. And every once in a while, as was becoming apparent tonight, it’s his stage as well...So far, four groups have filed lawsuits against Trump regarding the hotel, asking the courts to shutter the property, compel Trump to sell it, or require Trump to resign the presidency...No president has been formally accused of breaching the Constitution’s Emoluments Clauses before, which means there’s little case law on the subject. Harvard Law professor Laurence Tribe, who advised President Barack Obama and serves as an attorney for CREW in its lawsuit against Trump, explained to me in an email how he believes the Trump Hotel D.C. violates these clauses: “When the Trump Hotel receives payments from foreign governments, their agents, or entities controlled by them—to pay for things like national day events at the hotel or for diplomats to stay there, for instance—President Trump is enriched by receiving an ‘Emolument’ from a ‘King, Prince, or foreign State,’ in violation of the Foreign Emoluments Clause of Article I, Sec. 9."

The release this week of a list of 48 questions the special counsel Robert Mueller wants to ask President Donald Trump leaves very little wiggle room for the president. If Trump allows himself to be questioned, "he is walking into a classic 'perjury trap' that will likely end his presidency," wrote Andrew Stoltmann, an attorney and CNBC contributor...Alex Whiting, a former federal prosecutor who is now a professor at Harvard Law School, echoed that point, adding that the questions about obstruction pose a high risk for Trump because they relate directly to his conduct. Moreover, "they are about very specific acts and statements by Trump, and in many cases he has already spoken about them," Whiting said. "So either he reaffirms statements or conduct that indicates obstruction, or he contradicts other witnesses and in some cases himself."

An op-ed by Noah Feldman. Libel law is evolving before our eyes. Stephanie Clifford, aka Stormy Daniels, has sued Donald Trump for libel on the ground that the president tweeted that her allegations that she was threatened over their sexual liaison are “a total con job.” The legal theory of the suit, filed Monday in New York, is in line with Summer Zervos’s libel suit against Trump for repeatedly denying her allegations that he kissed and touched her inappropriately. Both lawsuits are creative attempts to push libel law in a direction that fits the #MeToo moment.

An op-ed by Ryan Goodman and Alex Whiting. What do special counsel Robert Mueller’s 49 questions for President Donald Trump tell us about the state of the investigations into possible obstruction of justice, abuse of power, and Russian “collusion”? 1. Big picture: What do Mueller’s questions indicate about the state of the special counsel’s investigations? First, Mueller’s questions about collusion show that it is likely that Mueller has already identified crimes involving collusion–such as a conspiracy to defraud the United States through an evasion of the Federal Election Commission–and Mueller is asking here only about Trump’s possible knowledge and personal involvement. In other words, the questions indicate that there is a “there, there.” That said, we want to be cautious here.