Media Mentions

An interview with David Wilkins. ...Most recently, Professor Wilkins and his team have been working on studying the development of legal profession following the liberalisation of various economies, and will be visiting India this month. In this interview with Bar & Bench’s Varun Marwah, Professor Wilkins talks about how India’s legal profession, in its post-liberalisation development phase, while borrowing several practices from the West, has also retained several characteristics that are uniquely Indian.

An op-ed by Cass Sunstein. From the very start of his presidency, Donald Trump has made it a high priority to reduce the level of federal regulation. And in 2017, the stock market has boomed. Many business leaders believe that this is hardly a coincidence, and that Trump’s deregulatory efforts have fueled the boom. Are they right? Probably not -- but it’s complicated.

An op-ed by Noah Feldman. From the standpoint of producing Middle East peace, President Donald Trump’s decision to recognize Jerusalem as the capital of Israel in a speech Wednesday can only be called irrational. It raises the risk of Palestinian violence that could derail peace efforts by his son-in-law Jared Kushner. It makes it harder for crucial U.S. allies like the Saudis to side with Trump and push the Palestinians to a deal. It won’t make Israel feel more secure. And it will hearten right-wingers in the U.S. and Israel whose endgame is actually to avoid a two-state solution.

An op-ed by Sharon Block and Christine Owens. If the Trump administration has its way, the tip you leave your waiter or waitress could end up in the pocket of the restaurant owner instead of the person who served you. This week, Trump’s Labor Department proposed rescinding an Obama-era rule that made the logical point that tips are the property of the servers and cannot be taken by the restaurant owner.

An op-ed by Vail Kohnert-Yount `20 and Jared Odessky `20. To keep its graduate students from unionizing, Harvard is pushing the government to weaken important protections for workers across the United States. That’s not how the university puts it, of course. But as law students who came to Harvard to study labor, we are alarmed by the implications of the anti-organizing tactics the school is using against its students. The institution is poised to hobble unions far beyond our Cambridge campus.

An article by Jack Goldsmith. I wrote Monday morning about costs within the Justice Department when its leaders stay silent in the face of the President’s caustic attacks on the department’s independence and integrity. I mentioned in particular the silence of Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, and FBI Director Christopher Wray...Since I wrote these words, Wray and Rosenstein spoke in ways that are widely seen as a response to the President and a defense of the Justice Department and FBI workforces.

An op-ed by Noah Feldman. It’s happening: President Donald Trump’s lawyer John Dowd asserted Monday that the “president cannot obstruct justice because he is the chief law enforcement officer under” Article II of the Constitution and “has every right to express his view of any case.” This radical view of what lawyers call the “unitary executive” isn’t completely crazy, especially if you take Dowd’s words charitably. But it is wrong. The president can indeed express opinions about legal cases.

President Trump is a compulsive liar who scorns the rule of law...What even some smart people don’t know is that the statement’s truth is, arguably, grounds to impeach Trump, even without his having committed a crime...For non-lawyers, that’s the big takeaway from “Impeachment: A Citizen’s Guide,” a new book by Harvard Law professor Cass Sunstein. The slim manual is a tour of the history behind the spare words the Constitution offers for when to remove high officials: ”treason, bribery, or other high crimes and misdemeanors.” Sunstein disavows what he calls the “fundamentally wrong” belief, uttered by many liberals (even House Democratic Leader Nancy Pelosi), that a president must break a law to be impeached.

Speculation has been simmering for months that the Trump administration might ask the Supreme Court to ban public sector unions from collecting mandatory fees. Calling for a decision that could significantly reduce labor movement finances and political influence would be a major shift in approach for the federal government. The question will be answered by midnight Dec. 6. That’s the deadline facing the Justice Department if the solicitor general wants to file a friend-of-the-court brief supporting the National Right to Work Legal Defense Foundation in its decades-long crusade against government unions...“If they were to take such a radical step to undermine workers’ rights, I have no doubt that it would be motivated not by a genuine concern about constitutional rights but by a desire to destroy the labor movement,” Sharon Block, who was both a National Labor Relations Board member and DOL policy official in the Obama administration, told Bloomberg Law.

Corporations are the cornerstone of both the House and Senate versions of the tax overhaul. Both bills propose deep cuts in the corporate tax rate — from 35 percent to 20 percent. The bills also call for a territorial tax system to replace the current worldwide tax system, in which multinational corporations with headquarters in the United States are required to pay the U.S. tax rate if they want to bring profits back into the country..."The corporate tax currently is broken," said Mihir Desai, a professor at Harvard Business School and Harvard Law School, whose work was cited (albeit somewhat misinterpreted) by the White House Council of Economic Advisers. "Bringing down the rate and switching the territorial regime so we don't tax corporations on their worldwide income -- both of those are really smart moves."

...In 2011, following an investigation by NPR and the Center for Public Integrity on campus assault, the Obama administration decided to act. The Office for Civil Rights sent a “dear colleague letter” reminding colleges that sexual harassment and assault create an environment so hostile that women’s access to education is jeopardized, violating their civil rights...“O.C.R.’s rationale” was that preponderance of evidence “was the standard for suits alleging civil rights violations like sexual harassment,” wrote Nancy Gertner, a retired federal judge and current Harvard law professor, in The American Prospect in 2015. “True enough, except for the fact that civil trials at which this standard is implemented follow months if not years of discovery.” She continued: “It is the worst of both worlds, the lowest standard of proof coupled with the least protective procedures.”

The Labor Department wants to remove an Obama-era regulation that restricted the circumstances in which employers could force workers to share tips. The DOL’s Wage and Hour Division, in a proposed rule released Dec. 4, calls for rescinding the 2011 regulation that prohibited restaurants, bars, and other service industry employers from requiring front-of-house employees, such as servers, to share tips with back-of-house workers, such as cooks and dishwashers...The proposal would eliminate from the Fair Labor Standards Act language under the 2011 rule that said tips are the property of the employee regardless of whether the employer has applied a tip credit. The department’s analysis that unwinding this rule will improve workplace conditions for restaurant employees was immediately opposed by worker advocates and former DOL officials in the Obama administration. “There is nothing” in the proposed rule “that would preclude an employer from keeping the tips of workers as long as he’s paid them $7.25 an hour,” Sharon Block, who ran the DOL’s policy shop in the Obama White House, told Bloomberg Law.

...On Friday, Trump's former national security adviser pled guilty to lying to the FBI. That alone is a big deal, but the real bombshell was that Michael Flynn had agreed as part of a plea deal to work with the FBI in its investigation into Russia's attempts to swing the 2016 U.S. election. The next day, a tweet appeared about the news...Tweets have already been used in plenty of cases, including against Trump — particularly in relation to his attempts at issuing travel bans on certain Muslim-majority countries. Even deleted tweets have been used in court cases. With Twitter, the main challenge is to show that the account belongs to a particular person, according to Alex Whiting, a law professor at Harvard University and a former prosecutor at the International Criminal Court. That's not an issue when it comes to Trump.

President Donald Trump’s personal lawyer’s legal arguments in defence of the president’s tweets about former U.S. national security advisor Michael Flynn have been greeted with some scepticism by legal experts. In seeking to explain a Trump tweet on Saturday lawyer John Dowd told Reuters on Sunday that he wrote and “bollixed up” the president’s tweet in which Trump said he fired Michael Flynn for lying to the FBI and not just misleading U.S. Vice President Mike Pence...But several lawyers said, regardless of whether Yates explicitly said Flynn lied to the FBI, the White House counsel should have seen that possibility and communicated it to the president. “It’s not every day that the acting attorney general comes over to the White House with that sort of message,” said Alex Whiting, a former federal prosecutor now teaching at Harvard Law School. “It had to have been obvious to McGahn that Flynn probably lied to the FBI whether Yates said it or not.”

An op-ed by Lawrence Lessig. American politics is strikingly bi-polar. We are firmly divided. We are firmly united. Yet the dynamic of the divided part makes the union part almost irrelevant. We are divided by party. Democrats are as far from Republicans as they have ever been in modern American history. We are loyal to our tribe; we punish the disloyal. The machines of our social life  —  Facebook and Twitter  —  feed us ideas we like, and discipline us for deviance from those ideas. If we signal improperly, “friends” may “unfriend” us. So we speak as we should. “Hey, like me! Because, like you, I hate them.” Thus the politics of hate wired to our emotions. Yet at the same time, we are as united as we have ever been. Overwhelmingly, whether Democrat or Republican, we are angry with our government. Overwhelmingly, we see our “representatives” as not representing us.

An article by Jack Goldsmith...This is all depressing enough. But another sharp cost of Trump’s caustic tweets has been largely neglected: The slow destruction of the morale of federal government employees, especially executive branch employees. Just about everyone I knew when I worked in the Justice Department had an idealistic sense of mission—about the importance of law enforcement to the country’s welfare, about the integrity of the department’s actions, and about commitment to the rule of law.

An op-ed by Noah Feldman. The debate over the weekend about whether President Donald Trump or his lawyer wrote a tweet saying National Security Adviser Michael Flynn was fired for lying to the FBI is fascinating -- and beside the point. Despite the enthusiasm of administration critics, a tweet can’t and shouldn’t be the basis of a “confession” of a high crime for impeachment purposes. In other words, regardless of authorship, the tweet can’t be used to prove Trump obstructed justice because he knew about Flynn lying to the Federal Bureau of Investigation when he urged Director James Comey to go easy on Flynn and then fired Comey.

An op-ed by Jesse Fried and Eugene Kontorovich. Emails unearthed in a federal lawsuit appear to show that the American Studies Association’s decision to boycott Israel was orchestrated by a small cadre of academics who infiltrated the ASA’s leadership to demonize the Jewish state. The ASA website says the scholarly group “promotes the development and dissemination of interdisciplinary research on U.S. culture and history in a global context,” but in December 2013 it endorsed an academic boycott of Israel. The ASA’s leadership, called the National Council, backed the boycott resolution and put it to a membership vote. A third of the members voted, and two-thirds of those endorsed the resolution.

An op-ed by Sharon Block and Terri Gerstein. We can all imagine the legion of politicians, media executives and entertainment moguls who are not getting a lot of sleep these days, wondering when their turn in the sexual harassment spotlight will come. That’s a good thing – hopefully, that fear is reforming behavior for them and their peers. An important question is, however, how do we instill the same fear in the hearts of men whose misdeeds won’t land them on the front pages or in the midst of a Twitter storm because they don’t have a public profile. What we’ve learned from the current flurry of revelations about sexual harassment is that public shaming may reform behavior but the law, as is, won’t. That means we need a broad agenda to change the law to protect the millions of women who don’t work for a famous boss.

At a recent Harvard Law School panel discussion on appellate advocacy that included Chief Justice John Roberts Jr., Topic A was how to prepare for and survive oral argument at the U.S. Supreme Court. Advice ranged from writing out and repeating your first sentence—you might not get to say anything else before being interrupted—to wearing the same pearls to every argument, and eating fish the night before and bananas the morning of oral argument. Yes, lots of bananas...Roberts, who argued 39 cases before becoming a judge, urged advocates not to overstate their case at argument. “It’s uncomfortable if you’re a judge and one side comes in and says, ‘This is absolutely clear, only an idiot would think otherwise,’ and the other side says the same thing. Because you’re thinking, ‘Well I’m an idiot one way or the other.’ If you can be fair to the case and not take an immediately extreme position, I always like it when lawyers give something up when they should.

Over 30 technology companies including Alphabet Inc, Amazon.com Inc, and Facebook Inc. on Friday urged a U.S. patent court to disregard drugmaker Allergan Plc’s contention that its transfer of some of its patents to a Native American tribe shields them from the court’s review. Two trade groups comprised of tech industry leaders argued in a joint brief submitted to the U.S. Patent Trial and Appeal Board that the board has the right to review the validity of patents covering the dry eye medicine Restasis that Allergan transferred to the Saint Regis Mohawk Tribe in a deal announced in September...A group of prominent law professors, including Laurence Tribe of Harvard Law School and Erwin Chemerinsky of the University of California at Berkeley, submitted a brief on Friday siding with the tribe and Allergan. “Far from being a scheme to shield patents from review, the agreement from the Tribe’s perspective is part of its economic development plan,” the academics said.