Media Mentions

An op-ed by Cass Sunstein. Late last year, the Department of Labor proposed an important and controversial federal regulation without a serious analysis of its costs and benefits, and of its likely effects on low-income American workers. That’s a big mistake, a disservice to the public and a bad precedent. It might cause legal trouble as well. The absence of such an analysis, including numbers, is inconsistent with decades of practice supported by both Republican and Democratic presidents.

From immigration to the economy to North Korea, President Donald Trump hit on a variety of huge policy areas during his State of the Union address last week — but there was one line in particular that, while largely overlooked, could have potentially massive consequences for the reach of executive power and the rule of law at the federal level. The president seemed to instruct Congress to authorize sweeping new powers for the executive branch...But Harvard Law professor Charles Fried said that even if Trump's proposal was actually put up for consideration, it would be extremely difficult to implement. "If we're talking about civil servants there needs to be statutory authorization," Fried explained.

Police accountability has been a huge issue in Chicago, but has been virtually ignored in the suburbs. The next Illinois Attorney General could change that. “You can’t be an attorney general … without paying serious attention to the quality of criminal justice in your state. It’s probably your prime responsibility,” said former Maine attorney general James Tierney, a Harvard Law School lecturer. In Chicago, outgoing Attorney General Lisa Madigan has sued the city in an attempt to force federal oversight of police reform efforts. But how to reform police departments outside the city’s borders remains a question. In an effort to hold those officers more accountable, the candidates vying to be the next attorney general have pledged to file federal lawsuits, investigate corruption, and push legislation.

On June 6, 206, Majority Leader Mitch McConnell joined his wife, Elaine Chao, now the U.S. secretary of transportation, at a ceremony on the Harvard Business School campus to dedicate a new building emblazoned with the Chao family name. Funded by a $40 million gift from the Chao family and its foundation, the building would serve as a new hub for Harvard’s Executive Education program. But the family’s generosity appears to have come at the expense of taxpayers — the money, it turns out, would already have been in the public treasury had it not been sheltered from the government in complex offshore tax havens...The Marshall Islands’ corporate registry list both companies as still active. Stephen Shay, a tax expert and professor at Harvard Law School, said he does not believe that there would be anything illegal about a foundation’s public tax forms listing an offshore contributor at the address of its U.S. domestic parent company, although such a move “would not seem usual.”

An op-ed by Susan Crawford. A decade ago, Chicago handed over control of its parking meters to a cadre of private investors. Officials pitched the deal as an innovative win-win. In exchange for a 75-year lease, the cash-strapped city got a lump sum. In fact, that large upfront payment was far less than the meters’ potential revenue—it was more than $1 billion too low...Beginning last fall, Toronto has been getting a flood of publicity about a deal with Sidewalk Labs, part of Google spinoff Alphabet. Reports describe the deal as giving Sidewalk the authority to build in an undeveloped 12-acre portion of the city called Quayside.

A book review by Randall Kennedy. "A More Beautiful and Terrible History" is a critique of what its author derides as the ascendant fable of the civil rights movement. Brooklyn College professor Jeanne Theoharis contends that influential shapers of public memory have attempted with considerable success to whitewash and truncate recollections of the black protests that challenged the racial status quo between the 1950s and the 1970s. The culprits include academics, journalists and politicians. What they have done, she charges, is depict a movement devoid of unsettling militance, with narrow aims that were accomplished on account of an attentive citizenry that only needed to glimpse injustice in order to respond nobly. The fable, she argues, is complacently triumphalist, offering a distorted mirror that misleadingly celebrates observers.

An op-ed by Catharine MacKinnon. The #MeToo movement is accomplishing what sexual harassment law to date has not. This mass mobilization against sexual abuse, through an unprecedented wave of speaking out in conventional and social media, is eroding the two biggest barriers to ending sexual harassment in law and in life: the disbelief and trivializing dehumanization of its victims. Sexual harassment law — the first law to conceive sexual violation in inequality terms — created the preconditions for this moment. Yet denial by abusers and devaluing of accusers could still be reasonably counted on by perpetrators to shield their actions.

...The #MeToo movement fits naturally into the narrative we’ve constructed about the dramatic lives of our favorite stars. We are captivated by these women: their monochromatic dresses, majestic pins, sad eyes; their sober interviews and rousing speeches. It is a movement that feels cinematic in the scope of the depravity it unearths and the progress it promises. It is grittily dynamic, vehemently forward-moving. But Harvard is not Hollywood. Proclaiming “Me, too” means something different on a campus than it does on a screen...Sejal Singh [`20], a Harvard Law student and Policy Coordinator at Know Your IX, a national campaign against sexual harassment and violence in schools, says she thinks “we have yet to even scratch the surface” on the problem of sexual misconduct in academia. “It’s sort of odd to me that we were supposedly having this national moment where we start to reckon with not just these individual harassers, but I think much more importantly, the way that these intuitions have enabled them,” Singh says...Jeannie Suk Gersen, a professor at the Law School who has campaigned against Obama-era Title IX changes, says she thinks this protracted focus on the issue means that higher education is in a position to “appreciate the complexity of the problem.” “All of those issues that we dealt with and are continuing to deal with on campuses are now on a broader scale at workplaces and other kinds of institutions,” Suk Gersen says...But others worry that academia’s focus on Title IX shifts the focus to semantics, stymying the potential for more nuanced discussions about broader cultures of harassment. “We’re still fighting about the legal definition,” says Paavani Garg [`18], a Harvard Law student and president of the Women’s Law Association. “We’ve been talking about Title IX for so long... It seems to be something that isn’t always the most effective way of dealing with victims of sexual assault and their needs.”

What do they call it? Ah yes. Black excellence. As such, 27-year-old Michael Thomas [`19] of New York City’s Brooklyn borough has been named the editor of the Harvard Law Review, Vol. 132, the second black person in as many years...Thomas, a second-year student at Harvard Law, says he took the “Michelle Obama route” by majoring in sociology undergrad at Princeton and then entering Harvard Law, where he is involved with the Black Law Students Association and the Harvard Law Documentary Studio...“[The] conversations that go on within and outside our pages have an effect on the law,” Thomas told The Root via email. “It’s important that those conversations reflect the full range of experience of the people who interact with the law and, that is to say, all of us.”

The Supreme Court will hear arguments this month in a case challenging the constitutionality of so-called agency fees, payments that workers represented by a union must pay if they do not wish to be dues-paying members. Conservatives have been crusading against these fees for years on First Amendment grounds, and with Justice Neil Gorsuch on the bench, the labor movement’s odds seem grim...If the conservative justices need any more convincing, they may be swayed by a brief filed by Charles Fried, an eminent libertarian scholar at Harvard. Fried, who co-authored the brief with Robert Post, a prominent liberal law professor at Yale, notably served four years as solicitor general in the Reagan administration.

In the days before the 2016 election, Donald J. Trump expressed “great respect” for the “courage” of the F.B.I. and Justice Department for reopening the investigation into Hillary Clinton’s private email server. Sixteen months later, he has changed his mind. The agencies have been “disgraceful” and “should be ashamed,” President Trump declared Friday...At the start of his administration, Mr. Trump targeted the intelligence community for his criticism. But in recent months, he has broadened the attacks to include the sprawling federal law enforcement bureaucracy that he oversees, to the point that in December he pronounced the F.B.I.’s reputation “in tatters” and the “worst in history.”...“I can’t think of another time when this has happened,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush.

As President Trump hammers away at the Justice Department’s credibility, one voice has been notably absent in the department’s defense: the one at the top. The attorney general, Jeff Sessions, has been largely quiet and even yielding as the president leads the most public and prolonged political attack on the department in history, a silence that breaks with a long tradition of attorneys general protecting the institution from such interference. “What is unusual is the F.B.I. and the Justice Department being attacked, the president leading the charge and the attorney general missing in action,” said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush. “Why isn’t he sticking up for the department?”

Artificial intelligence is taking the healthcare industry by storm as researchers share breakthrough after breakthrough and vendors quickly commercialize advanced algorithms offering clinical decision support or financial and operational aid...Establishing a high level of trust in the data used to fuel machine learning tools will be essential for ensuring that the resulting care quality is high and patients are receiving the help they need to manage chronic conditions or acute illnesses. “We are increasingly using very complicated algorithms and cutting edge artificial intelligence to predict and guide health care, such as recommending a certain dose of insulin to a diabetic patient,” says I. Glenn Cohen, Faculty Director at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

...As the Trump presidency stumbles into its second year, Robert Mueller, the powerful independent prosecutor investigating the president’s Russia ties, appears startlingly close to concluding a case that could offer damning evidence that Trump or his subordinates committed an obstruction of justice in the Russia affair, former prosecutors and Washington insiders say...“It seems clear that Mueller is coming to the end of the obstruction investigation, but it’s impossible to know where he stands on the collusion investigation and what his timeline would be,” Alex Whiting, a Harvard Law School professor specializing in criminal prosecution issues, said of Mueller.

The Harvard Law Review elected second-year Law student Michael Thomas [`19] the 132nd president of the journal last week. Thomas, who was born in St. Vincent and the Grenadines, grew up in Brooklyn, N.Y. and graduated from Princeton University in 2012 with a degree in sociology. Between studying at Princeton and at Harvard Law School, Thomas worked in the office of Counsel to the Mayor in New York City and served as a summer associate at Paul, Weiss, Rifkind, Wharton & Garrison last year. Thomas succeeds ImeIme A. Umana [`18], the publication’s first black woman president. In an email, Umana praised her successor and wrote she thinks the Law Review is in good hands under Thomas. “The Law Review is lucky to have Michael at the helm. He is an incisive and thoughtful editor. More importantly, he is a compassionate peer,” she wrote.

Precision medicine and artificial intelligence (AI) are complicated by design: Both scientific fields rely on extreme specificity, complex equations, and forces that can’t be seen. As both fields begin to alter the healthcare landscape, they could plant a number of legal landmines. Can algorithms or biomarkers be patented? Will centers be able to access the large data sets they need to perform accurate AI? What control over their data should patients have? And how will practice be affected by differing legal frameworks in the US and Europe? A new collaborative initiative between Harvard Law School and the University of Copenhagen plans to explore those issues. Recently announced by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard and the Center for Advanced Studies in Biomedical Innovation Law (CeBIL) at Copenhagen, the effort will be called the Project on Precision Medicine, Artificial Intelligence, and the Law (PMAIL). It will be led by Harvard Law School professor I. Glenn Cohen.

An op-ed by Cass Sunstein. In the last 35 years of U.S. regulatory policy, both Democratic and Republican presidents have agreed that cost-benefit analysis is an excellent idea. For that reason, it was welcome news this week when the Federal Communications Commission, led by Chairman Ajit Pai, voted to create an Office of Economics and Analytics, and to incorporate its work into the agency's decision-making. This development should have long-term benefits for communications policy in the U.S.

An op-ed by Alex Whiting and Ryan Goodman. The New York Times is reporting additional details about the drafting on Air Force One of the false statement that Donald Trump, Jr. provided to the press about the June 9, 2016 Trump Tower campaign meeting with Russians, as well as a previously undisclosed conversation among the President and his aides the following day concerning the potential risks and ramifications of the false statement. One participant in this later conversation will reportedly reveal everything he knows to Special Counsel Bob Mueller—that is Mark Corallo, who served as a spokesman for Mr. Trump’s legal team at the time.

Give Tavis Smiley this much: He isn’t slinking away. Unlike other prominent men who’ve been publicly accused of sexual harassment, Smiley is doing what he’s always done — talking. Almost incessantly, in fact. Since his talk show was dropped by PBS amid accusations of workplace misconduct, Smiley has given multiple interviews professing his innocence...“You can’t say that women are right and truthful and men are liars,” said [Stephanie] Robinson at one point. “And I think that is what is happening in the court of public opinion. It’s problematic that we allow people to come out and say whatever they want to say publicly about someone, destroy someone’s life and family and they don’t have to put more out on the table to speak to the credibility and veracity” of their allegations.

Republican antics concerning the memo drafted by House Intelligence Committee Chairman Devin Nunes (R-Calif.) threaten to damage our national security, the FBI and the entire congressional oversight process. Meanwhile, President Trump faces a constant drip-drip-drip of new revelations giving heft to a possible obstruction-of-justice charge...Taking a step back, the Nunes lunacy concerning release of the memo may well do more harm to Republicans and implicate both the White House and Nunes himself. Constitutional lawyer Laurence H. Tribe says, “Both the President’s release of the memo despite the warning of FBI Director [Christopher] Wray and the actions of Nunes in concocting a phony smear of Rosenstein seem to me to be important parts of an ongoing conspiracy to obstruct justice.”

The story of President Trump's energy policy centers on removing regulations. He says he's good at it — even the best. "We have eliminated more regulations in our first year than any administration in history," Trump said in his first State of the Union address. That's not necessarily true. But in some ways, it's not necessarily false...Much of the focus has been on EPA, where Pruitt has proved a deft field general, said Jody Freeman, another Obama climate adviser. After a delayed start, he's now staffed up with political pros and EPA veterans familiar with the rules they're tasked with changing or undoing..."Scott Pruitt has been among the most disciplined, so that's why people are really worried," said Freeman, who is now at Harvard Law School. "There's the contrast — Rick Perry over there shooting from the hip, and here's Scott Pruitt being careful."