Media Mentions

The White House is preparing to crack down on what it says are improper Chinese trade practices by making it significantly more difficult for Chinese firms to acquire advanced U.S. technology or invest in American companies, individuals involved in the planning said. The administration plans to release on Thursday a package of proposed punitive measures aimed at China that include tariffs on imports worth at least $30 billion...Whatever the political blowback, Harvard law professor Mark Wu, a trade expert, says that the White House has authority to impose tariffs under section 301 of the Trade Act of 1974. “In situations where the U.S. Trade Representative deems unfair trade practices to fall outside the scope of a WTO-covered agreement, then the statute permits the executive branch to take action directly without first seeking recourse through WTO dispute settlement” procedures, he said.

...Today, the political atmosphere is different enough that if President Donald Trump triggers the firing of special counsel Robert Mueller, the fate of the Russia investigation would be thrown in doubt...Former prosecutors and legal analysts disagree about the fallout of a possible firing of Mueller, who led the FBI first during the administration of Republican President George W. Bush and then Democratic President Barack Obama...Harvard law professor Jack Goldsmith, also a former assistant attorney general, does not believe the situation would be so dire, if it comes to that. He predicted that current FBI Director Christopher Wray would continue the Russia investigation and that a new special counsel would be named. Goldsmith also emphasized the legal hurdle Trump faces. "If Trump wished to stop the Mueller investigation, he couldn't just tweet a declaration that it is over," Goldsmith wrote in a Lawfare column earlier this year.

The extraordinary legal battle between the president of the United States and a former adult-film star has been building for seven years. The standoff is rapidly escalating, as the porn actress, Stephanie Clifford, seeks to go public with details of her claims of an extramarital affair, and President Donald Trump and his attorneys fight to stop her...The allegations pivot on whether the payment was made to influence the election to Mr. Trump’s benefit, said Thomas Frampton, a lecturer at Harvard Law School. “It may be one of the least scintillating issues that Ms. Clifford could speak about, but from the perspective of Cohen’s and the president’s legal liability, it could be the most dangerous,” he said.

A federal court judge said Monday he won't re-issue proposed instructions to a jury that will hear the case of two Boston city officials who are accused of conspiracy and extortion in an effort to strong-arm the music festival Boston Calling into hiring union workers. Prosecutors say the instructions could sink their case. For more on the decision and on the upcoming trial, WBUR legal analyst and retired federal judge Nancy Gertner joined Morning Edition.

A progressive group that says it wants to expose misconduct by President Trump and his Cabinet is taking on the president through his favorite form of communication: Twitter. The Shadow Cabinet, a group of 21 scholars, activists and former officials, announced Tuesday morning that it’s launching “We the Constitution."...In a statement, Laurence Tribe, a constitutional law professor at Harvard who serves as the citizen attorney general in the Shadow Cabinet, said Trump’s conduct in office raises profound questions about the survival of a democracy in which all are constrained by the rule of law. “This president defies legal rules, standards, principles, and norms — including how he even looks away when our system of government is under attack by a hostile foreign power — to an alarming degree,” he said.

A group of former students defrauded by for-profit colleges is claiming in court that the Education Department illegally obtained and used their Social Security data to limit their student loan relief...But a motion filed by several former Corinthian students over the weekend claims that the agency had obtained the figures from the Social Security Administration in violation of several laws as well as the Constitution. Attorneys with the Project on Predatory Student Lending at Harvard University representing the students say the agency should have turned to the students for their data as well as notified them of its actions in order to give them a chance to react. The department “has secretly and illegally coopted Social Security data to try to argue for something less than the complete cancellation and refund that these borrowers are due,” said attorney Joshua Rovenger.

An op-ed by Cass Sunstein. The horrendous actions by Cambridge Analytica, a voter profiling company, and Aleksander Kogan, a Russian-American researcher, raise serious questions about privacy, social media, democracy and fraud. Amidst the justified furor, one temptation should be firmly resisted: for public and private institutions to lock their data down, blocking researchers and developers from providing the many benefits that it promises – for health, safety, and democracy itself.

How many agencies does it take to regulate a financial system? In United States, about half a dozen at least. And this fragmented system made dealing with the 2008 financial crisis more difficult. Regulators struggled to figure out who had authority to do what, and there was no one figure overseeing the efforts to right the U.S. economy...Who regulates financial institutions depends on their charters. Before you can open up a bank, you must receive a bank charter. But where you go to get that charter depends on what kind of institution you’re operating, said Hal Scott, international financial systems professor at Harvard Law School. “There are just a lot of different regulators, and they overlap in their authorities,” he explained.

In 1954, presumably with no feminist agenda and decades before the phrase would enter the consciousness, John Cheever wrote “The Five-Forty-Eight,” inadvertently outlining the mechanics of sexual harassment as they have only now come to be better understood. The story would go on to become one of his best known, a wounding abrasion to the surface view of postwar American fortitude. Intended as a chilling admonition against female volatility, read 64 years later, amid the current reckoning, it presents itself least ambiguously as a chilling admonition against male entitlement...Cheever’s story appears nowhere in “Sexual Harassment of Working Women,” Catharine A. MacKinnon’s influential work of legal scholarship published in 1979, but it offers the clearest possible illustration of the dynamics that MacKinnon believed were central to the American workplace, a system in which women were judged by the standards imposed on wives and concubines, used and discarded similarly.

The Project on Predatory Student Lending at Harvard University, a legal services clinic, has asked a federal judge to stop Education Secretary Betsy DeVos and the Education Department from using earnings data to grant only partial student loan forgiveness to defrauded borrowers...Project lawyers say the Education Department has no right to use the data, which is supplied by the Social Security Administration, for any purpose other than to evaluate vocational programs. And denying full relief to Corinthian students under the law is illegal, they argue. “The Department of Education had already unfairly and unlawfully refused to cancel these bogus loans for so long,” said Joshua Rovenger, a lawyer at the Project. “Now, it has secretly and illegally co-opted Social Security data to try to argue for something less than the complete cancellation and refund that these borrowers are due.”

An op-ed by Noah Feldman. Suppose President Donald Trump’s foreign policy is random. I mean really random: Like random luck, designed only in so far as to fluctuate wildly between different, opposing strategic views. In this thought experiment, it’s not a bug but a feature that the U.S. is pulling away from a nuclear nonproliferation agreement with Iran even as it seeks to negotiate one with North Korea. Similarly, it’s an intentional accident that Trump might replace the realist National Security Adviser H.R. McMaster with the conservative idealist John Bolton.

In The New York Times Book Review, Andrew Sullivan reviews “Impeachment: A Citizen’s Guide,” by Cass R. Sunstein, and “Can It Happen Here? Authoritarianism in America,” edited by Sunstein. Sullivan writes: It’s really hard to impeach a president. The founders included the provision, from the very start, as the weakest, “break the glass in case of emergency” mechanism for reining in an out-of-control executive. He was already subject to a four-year term, so he would remain answerable to the people, and to two other branches of government, which could box him in constitutionally.

Sexual harassment “was not considered anything you could do something about — that the law could help you do something about — until a book was written by a then-young woman named Kitty MacKinnon,” the Supreme Court justice Ruth Bader Ginsburg said at the Sundance Film Festival in January...The Supreme Court agreed with Catharine A. MacKinnon. In its first case involving sexual harassment in 1986, with Ms. MacKinnon as co-counsel, the court ruled unanimously that sexual harassment is sex discrimination. For over 40 years, Ms. MacKinnon, 71, has been a pioneer and lightning rod for sex equality. Along with her work on sexual harassment, she has argued, more controversially, that pornography and prostitution constitute sexual abuse of women in the context of social inequality. Ms. MacKinnon now teaches law at the University of Michigan and Harvard. (In 1990, I studied with her, in a class called “Sex Equality,” when she was a visiting professor at Yale Law School.) Her most recent book, “Butterfly Politics,” surveys her four decades of activism.

An op-ed by Jack Goldsmith. The Trump administration on Thursday accused Russia of infiltrating by digital means “energy and other critical infrastructure sectors” in the United States. “We now have evidence they’re sitting on the machines, connected to industrial control infrastructure, that allow them to effectively turn the power off or effect sabotage,” Eric Chien, a security-technology director at Symantec, said to Nicole Perlroth and David Sanger in the New York Times. “From what we can see, they were there,” Chien added. “They have the ability to shut the power off. All that’s missing is some political motivation.”

President Trump has made rolling back regulations a top priority for his administration, and U.S. EPA has been leading that charge. But the agency faces formidable challenges in federal courts. Of 25 deregulatory actions taken by EPA in the Trump era, six have been challenged in court, according to an analysis by E&E News...EPA's deregulatory actions have taken a variety of forms, said Jody Freeman, founding director of Harvard Law School's energy and environmental law program, who served as a climate adviser for President Obama. In some cases, EPA has tried to suspend or delay compliance deadlines. In other cases, the agency has delayed rules themselves or missed deadlines in statutes, she said. "I think there's a concerted effort here to really throw everything possible at the Obama administration's environmental protection agenda," Freeman said. "That means trying every trick in the book."

Most U.S. Supreme Court cases are born the old-fashioned way: an aggrieved party goes to a lawyer to appeal a lower court decision, and the lawyer petitions the court. But the high-profile case of South Dakota v. Wayfair, involving state taxation of online retail sales, unfolded in a very different way. Lawyers sought out the clients—states, in this case—who were willing to lose below so they could potentially win before the Supreme Court...But is it improper or even unusual for states to pass contrarian laws aimed at forcing the Supreme Court to confront and rethink its own precedents? “It happens all the time,” said former Maine Attorney General James Tierney, now a Harvard Law School lecturer who advises state attorneys general. Tierney did not want to comment on the Wayfair case specifically, but said that in general, it is not uncommon for states to pass laws they know would be tested at the Supreme Court. State laws on abortion rights and immigration, for example, have been passed in defiance of court precedents, Tierney noted.

The Department of Education has begun notifying some former Corinthian Colleges students that it will forgive only one-half or less of their federal student loans, even though the students were defrauded by the now-defunct schools, the Associated Press has learned. The action is part of the Education Secretary Betsy DeVos’ push to ease regulations governing for-profit schools. DeVos says she wants to protect taxpayers’ money, but critics say that the Trump administration has deep ties to for-profit colleges and is putting industry interests ahead of students...Alec Harris, Dieffenbacher’s attorney with the Project on Predatory Student Lending at Harvard University said: “There is no justification for making Sarah and others pay for having been cheated. The Department’s actions are incoherent and vindictive.”

On February 28th, two weeks after a 19-year-old gunman killed 17 people in Parkland, Florida, President Donald Trump said “it doesn’t make sense” for teenagers to be allowed to buy a semi-automatic weapon when federal law bans handgun sales to people under 21...On March 12th he tweeted, in the face of evidence to the contrary, that there is “not much political support (to put it mildly)” for raising the age to buy rifles. Mr Trump says he prefers to wait and see how the courts handle challenges to age limits in the states. He appears to be thinking of the conflict that is brewing in Florida, where the NRA filed a lawsuit on March 9th claiming that the Sunshine State’s new age restrictions violate the constitutional rights of 18-20-year-olds wishing to buy semi-automatic weapons...According to Laurence Tribe, a law professor at Harvard, the NRA “should and probably will lose”. No court has found people aged 18 to 20 to be a class worthy of special constitutional protection.

An op-ed by Susan Crawford. In the American internet access world, public assets are privatized all the time. Sometimes this happens when private companies are handed direct payments in the form of subsidies: public money, amounting to at least $5 billion a year, which is showered on companies to incentivize them to provide access in places where they feel it is too expensive to build. Sometimes this happens when companies are handed low-cost or no-cost access rights to infrastructure by state legislatures. And sometimes it happens in the form of broad public/private partnerships for "smart city" services. But the federal government doesn’t set high enough standards for the quality and price of the services the public subsidizes—and we're certainly no good at requiring competition.

An op-ed by Noah Feldman. To people in the rest of the U.S., California can seem like a foreign country. From Donald Trump’s perspective, the feeling may not be purely cultural. California is pursuing a range of policies designed to thwart the president’s initiatives. Those include blocking offshore drilling that Trump wants to enable; preventing the softening of Obama-era miles-per-gallon standards; and contradicting Trump’s immigration policies with sanctuary laws (a topic I wrote about earlier this week).

The National Consumer Law Center (NCLC) released a report this month chronicling the experiences of borrowers who had their EITC seized to pay back a student loan. Some told NCLC they were relying on the refund to improve their housing situation, others said they planned to use it to fix the car they need to get to their job and still others worried that losing the EITC could push them into homelessness...Perry’s story is similar to some of what Toby Merrill hears representing borrowers who have been misled by for-profit colleges as part of her work with the Project on Predatory Student Lending, a program at Harvard Law School that Merrill directs. Her clients often have their EITC seized over a student loan that Merrill argues the government doesn’t have a legal right to collect because they were made under fraudulent circumstances. “The Department of Education frequently seizes Earned Income Tax Credits from definitionally low-income borrowers whose loans aren’t even enforceable,” she said.