Media Mentions

On Monday morning the conservative-media world woke up to a savagely personal attack in National Review on the Washington Post columnist Jennifer Rubin. The outburst might seem a textbook case of the narcissism of petty differences within the conservative world. Both the author of the denunciation, Charles C. W. Cooke, and its target, Rubin, are right-leaning skeptics of Donald Trump. What on earth could they be arguing about? And does it matter?...Researchers at Harvard’s Berkman Klein Center have quantified how dramatically far-right media sources such as Breitbart News have overtaken and displaced traditional conservative outlets such as National Review. By tallying links, citations, and other indicators of influence, they found: "The center-left and the far right are the principal poles of the media landscape. The center of gravity of the overall landscape is the center-left."

A response to Laurence Tribe by Alan Dershowitz. My colleague Larry Tribe’s response is unfortunately not responsive to my arguments. He erects several straw men, which he proceeds to knock down, but he fails to respond to my most compelling arguments. Two striking examples: Larry correctly points out that congressional immunity is based explicitly on the text of the Constitution, but he fails to deal with my other primary example—judicial immunity.

It began with a news story, and then a tweet, and suddenly it seemed like everything had changed overnight. 2017 will forever be known as the Year of the Reckoning. Or, more precisely, the year of the beginning of the reckoning. Because at year’s end, the phenomenon of powerful men being knocked off their perches by allegations of sexual misconduct — in Hollywood, on morning television, in chic restaurant kitchens, in the U.S. Senate — showed no signs of slowing. Each morning, we awoke to ask: “Who’s next?”...And what about the alleged abusers we’ve never heard of, because they’re not famous? “There have been stunning accounts of farm workers harassed in the field, factory workers on lines, restaurant workers,” says law professor Catharine MacKinnon, who decades ago pioneered the legal claim that sexual harassment is a form of sex discrimination. “They don’t have the high-profile man ... but I’m telling you, to the women he does it to, he’s plenty big.”

An article by Mihir Desai. The Senate and House are poised to vote on a tax plan, starting on Tuesday. Here are some questions to consider as we approach 2018: How much of this year's stock market gains reflect anticipation of corporate tax cuts?

An op-ed by Cass Sunstein. Whenever a President’s political opponents despise his policies, they are tempted to start talking about impeachment. That’s certainly true today, with increasing calls, on the part of President Trump’s harshest critics, for taking the impeachment process seriously. Whether Americans like Trump or loathe him, they need to understand what that process is all about. It’s a crucial part of the constitutional plan. Those who lived through the American Revolution rejected the idea of a monarchy. Without the power of impeachment, it’s doubtful that We the People would have ratified the Constitution at all.

An op-ed by Alex Whiting. The International Criminal Court’s Assembly of States Parties agreed late last week that the ICC can now prosecute crimes of aggression, making it the fourth crime (after war crimes, crimes against humanity, and genocide) to fall within the Court’s jurisdiction. The decision will become effective on July 17, 2018. This development is enormously significant because it is the first time since Nuremberg’s Nazi trials that an international tribunal has been able to prosecute this crime, but given how narrowly they defined the crime, and the scope of the ICC’s jurisdiction, its significance may be largely confined to its declarative and symbolic force, though this is a value that should not be underestimated.

After spending most of its first year tearing down climate rules, the Trump administration is now taking steps to write its own. U.S. EPA Administrator Scott Pruitt yesterday asked for wide-ranging comment about how to replace the Obama administration's signature climate change rule, the Clean Power Plan. In the lengthy document known as an advance notice of proposed rulemaking (ANPR), the administration offered important clues about the way forward, claimed that the Obama rule was illegal and gave critics fodder for counterattacks...Changing the program is therefore likely to draw lawsuits, Jody Freeman, a former Obama climate adviser, said in a recent interview. "That's been a moving target, and we always expect a Republican administration to give the old coal plants more room," said Freeman, who is now a professor at Harvard Law School. "Then it becomes a legal battle ... that gets into the trench warfare that's always been true of New Source Review."

...The whole concept of "cyberspace" implies the occupancy by people, or entities that represent people, accessing resources, data files, and applications by moving from place to place like browsing a shopping mall..."There's going to be a lot more 'what's,'" described noted security expert and author Bruce Schneier, referring to a communications system whose ratio of entities to people will only grow. "What sent this? It's going to be a streetlight sensor that's telling me the traffic on this street is such that I'm going to try this other way. Or that I should brake now and not in fifteen milliseconds, because that'll save my life."

Robert Mueller's appointment as special counsel to lead the Russia probe in May caught President Donald Trump by surprise. Seven months later, the President's defenders have gone into overdrive hoping to discredit the investigation as Trump insists publicly he has no plans to fire Mueller...Harvard Law School Professor Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel during George W. Bush's administration, has suggested the President will only come under further scrutiny if he tries to fire Mueller. "I don't see how firing Mueller gives Trump relief from the investigation. More likely the opposite, since it would call Trump into greater suspicion. Just as it got worse for him after he fired (former FBI Director James) Comey, it would get yet worse for him if he fired Mueller," Goldsmith tweeted.

An op-ed by Noah Feldman. The House of Representatives passed the National Rifle Association’s favorite gun-rights expansion bill earlier this month, and gun-control advocates locked and loaded their favorite legal arguments against it. It’s a terrible measure, to be sure, forcing states to allow people licensed to carry concealed weapons in one state to carry them anywhere else. But that doesn’t mean it’s unconstitutional, and liberals should be careful what they wish for.

An op-ed by Laurence Tribe. My friend Alan Dershowitz has restated in Maclean’s his now familiar arguments against holding a sitting president fully accountable for abusing his executive powers. As I and other constitutional scholars have explained, those arguments don’t withstand scrutiny. They rely on the strange idea that, because the president is head of the executive branch, and because the three branches are supposed to be independent of one another, nothing the president does in his purely executive capacity, like granting a pardon or firing a subordinate, can be part of a criminal or impeachable obstruction of justice.

An interview with Hal Scott. This week on CFTC Talks, we bring on Harvard Law Prof. Hal Scott, author of "Connectedness and Contagion." We cover the 2008 financial crisis, what happened and what regulation has done since. Has regulation made the US financial system safer and at what cost? What is the future direction for fin reg?

An op-ed by Susan Crawford. The three Republican commissioners now in power at the FCC voted this week to erase the agency's legal authority over high-speed Internet providers.They claim that competition will protect consumers, that the commission shouldn't interfere in the "dynamic internet ecosystem," and that they are "protecting internet freedom." Now that the vote is done, the agency has little to do but mess around with spectrum allocations. The mega-utility of the 21st century officially has no regulator.

President Trump on Sunday sought to douse speculation that he may fire special counsel Robert S. Mueller III amid an intensifying campaign by Trump allies to attack the wide-ranging Russia investigation as improper and politically motivated. Returning to the White House from Camp David, Trump was asked Sunday whether he intended to fire Mueller. “No, I’m not,” he told journalists, insisting that there was “no collusion whatsoever” between his campaign and Russia...“If Rosenstein refused, Trump could fire him and keep firing everyone who replaced him until he found someone who would fire Mueller,” said Harvard Law School professor Jack Goldsmith, former head of the Justice Department’s Office of Legal Counsel and co-founder of the Lawfare blog.

On the Friday before Thanksgiving, Kenny Johnson left the Nelson Global Products plant in Clinton, Tenn., for the last time. Having devoted nearly 13 years to making tractor-trailer exhaust pipes, Johnson, 41, spent some of his final weeks at the plant watching Mexican workers train to take his job...This was the kind of economic dislocation that President Trump vowed to prevent with his “America First” policies...“This bill is potentially more dangerous than our current system,” said Stephen Shay, a senior lecturer at Harvard Law School and former Treasury Department international tax expert in the Obama administration. “It creates a real incentive to shift real activity offshore.”

...In James Madison’s public career, spanning four exceptionally productive decades, this private passion of his—what he called “the sentiments of my heart”—is the most visible evidence of the force that fueled him. As Noah Feldman, Frankfurter professor of law, writes in his excellent, authoritative, and lucid reassessment of Madison, “Dolley frequently expressed opinions and emotions that Madison hid from view.” He was known as a dispassionate man of reason, systematic and mild-mannered, who preferred the company of ideas and lacked the need for attention many politicians have. Yet his profound sense of purpose made him a statesman of enormous impact. He imagined the United States as a unified nation rather than a confederation of republics with diverging interests in agriculture and trade, and helped shape that country.

The National Labor Relations Board has overturned a 2015 law that made it easier for contractors and workers at franchised businesses to form unions and collectively bargain with big corporations. The 2015 NLRB ruling said contract workers at a recycling center were jointly employed by a third party staffing firm and the business they worked for. Sharon Block was a member of President Obama's NLRB. She's now executive director of the labor and worklife program at Harvard Law School. “What the Obama board did was try to apply the proper legal standard, but in a way that fit the way that our economy and our business relationships work today,” she said.

An op-ed by Noah Feldman. Charlottesville, Virginia, has rejected permit applications from five organizations, far-right and otherwise, to hold protests in the city’s parks on the one-year anniversary of last summer’s protests there. It’s hard not to feel sympathy for the city, which struggled to manage the rallies and was unable to prevent the terrorist car-ramming that killed one woman and injured 19 other people. There’s just one problem: Denying the permits is unconstitutional.

In this episode of Alphachat, Matt Klein talks with Harvard professor Mihir Desai about the deep connections between finance and the humanities. Special thanks to Elisheba Ittoop for help with editing this episode.

An op-ed by Vicki Jackson and Judith Resnik. As litigation against the revised travel ban moves forward, the Supreme Court’s decision Monday to stay the lower court orders in the Fourth and Ninth Circuit litigations—without exceptions previously insisted on for persons with established bona fide connections to the United States—seems to signal that a majority of the Court may now be prepared simply to defer to the presumed expertise and competence of the President over foreign affairs. This would be a tragic mistake.

Simon Heldin '19. It may be hard to believe, but there was actually a time when the Republican leadership thought that credible sexual misconduct allegations against their own were disqualifying.