Media Mentions

An op-ed by Jack Goldsmith. Many are debating the significance of today’s Per Curiam Supreme Court opinion that granted the government’s petitions for certiorari and its stay applications in part. Did the Court signal that it would uphold most elements of the decisions below, as some argued? Did it signal the opposite—that it would reverse most elements of the appellate court rulings? Will the case be moot by the fall? I think it is very hard to predict how the Court will decide the case next Term, except perhaps to say that if it reaches the merits, the claims of foreign nationals who lack a relevant relationship with a person or entity in the United States aren’t looking so good.

An interview with Mihir Desai. Does the world of finance and markets needs a good infusion of humanity? One book examines how how a wider reading of the humanities can help you understand finance and at the same time how finance can help you understand the human condition. It’s by economist and Harvard Business School professor Mihir Desai. He joined Marketplace Morning Report host David Brancaccio to discuss his latest book, "The Wisdom of Finance: Discovering Humanity in the World of Risk and Return."

An op-ed by Philip Heymann. Denying that there was any evidence of his committing an obstruction of justice, President Trump has issued thinly veiled threats to fire Special Counsel Robert Mueller. Like my mentor 45 years ago at Watergate, Archibald Cox, Mueller must take the Department of Justice investigation he heads wherever the relevant facts lead. Like Attorney General Elliot Richardson, Rod Rosenstein is right that, as deputy attorney general, he cannot agree to terminate the special counsel’s investigation without good reason simply because the continuing investigation makes the president uncomfortable or nervous.

An interview with Scott Michelman. A shocking lawsuit accuses the Washington, D.C., police of using sexual abuse as a form of punishment targeting people arrested during protests against President Donald Trump’s inauguration. A complaint by four plaintiffs charges officers stripped them, grabbed their genitalia and inserted fingers into their anuses while other officers laughed. We speak with Scott Michelman, a senior attorney at the ACLU of the District of Columbia and lecturer at Harvard Law School.

...Allco Financial, an affiliate of developer Allco Renewable Energy, was rebuffed twice by a federal court that ruled the company did not have the legal standing to bring the case. But Allco reframed its case and won an injunction in district court barring Connecticut from awarding contracts stemming from its renewable energy solicitation. The injunction was later lifted, but Allco appealed the district court ruling to the appeals court. The appeals court has now upheld the district court ruling. “The opinion is particularly significant because it is the first federal court decision to discuss the scope of the Supreme Court’s 2016 Hughes decision,” said Ari Peskoe, senior fellow in electricity law at Harvard Law School's Environmental Policy Initiative and manager of the State Power Project website.

Warning: Watching TV drug ads may put you to sleep. That’s no surprise to many of us who’ve heard about the countless ways prescription drugs can harm us. But now, the Food and Drug Administration is considering whether bombarding consumers with every last potential side effect might be overkill. The agency, which approves prescription drugs and oversees how they’re marketed, is proposing a new study to look at whether patients are being “over-warned” to the point that they stop paying attention. “You don’t even bat an eyelash that this product could kill you, which is kind of an indicator of how ubiquitous it is,” said Holly Fernandez Lynch, a bioethicist at Harvard Law School.

The Trump administration's travel restrictions blocking foreigners from six Muslim-majority countries and refugees fleeing persecution will take effect Thursday, following the Supreme Court’s decision earlier this week to temporarily uphold portions of the ban...The high court's ruling allowed President Donald Trump to place a 90-day ban on foreign travelers from six countries — Iran, Syria, Sudan, Somalia, Libya and Yemen — as well as a 120-day ban on refugees fleeing persecution from any country when they have no "bona fide relationship" with an entity or person in the United States...Yet Gerald Neuman, co-director of the Human Rights Program at Harvard Law School said whether relatives outside of an immediate family, for example, aunts and cousins, will be allowed to enter is an outstanding question. “I think there’s going to be a gray area and we’ll see how much disagreement there is about it and how people respond to it,” he said.

An op-ed by Carol Steiker and Jordan Steiker. Two terms ago in Glossip v. Gross, Justice Stephen Breyer, dissenting from the Supreme Court’s rejection of a lethal-injection challenge, set forth a comprehensive case against the American death penalty, calling for the court to revisit the question of its basic constitutionality. Over the past 40 years, several justices have questioned the constitutional viability of the death penalty, but Breyer’s dissent seemed more significant because it came at a time when the death penalty appeared newly vulnerable.

An interview with Nancy Gertner. The U.S. Supreme Court said most of President Trump's controversial travel ban could go into effect until the high court takes up the case in the fall. So it's at least a partial and temporary victory for the president to finally make good on a major campaign promise.

...If the Supreme Court’s compromise decision Monday on the travel ban grabbed the headlines on the court’s final day, those who study the court were at least as focused on what they could learn about the 49-year-old Coloradan chosen by Trump to fill the seat of the late Antonin Scalia. The bottom line, according to most accounts, is that Gorsuch is a Scalia 2.0, perhaps further to the right...“He’s asserted himself in a way that is really without precedent for a justice in the modern court,” said Ian Samuel, a former Scalia clerk who teaches at Harvard Law School.

This month the Dutch government debated a proposal to suspend all shareholder rights for a year in the event of an unsolicited takeover bid. This move, which we view as a “backwards step”, is the latest in a salvo of proposals to curb engaged investors. But it is also part of a broader debate about the perceived short-termism in markets, the weaknesses in corporate governance and the role of activists which policymakers, boardrooms and investors wrestle with...So who is going to solve this? Rather than passing new laws, we should welcome activist and engaged investors which can be an important catalyst for change. The best academic study on activism suggests activists are not myopic. Harvard’s Lucian Bebchuk and colleagues looked at 2000 interventions by activists which showed that five years after activist intervention, their operating performance was materially improved.

An op-ed by Cass Sunstein. The executive branch under President Donald Trump is not issuing a lot of new regulations, but congressional Republicans, joined by some Democrats, have been thinking seriously about regulatory reform. They've produced an intelligent, constructive, complex, imperfect bill – the Regulatory Accountability Act of 2017 – that deserves careful attention.

A Fox News panelist made the case Sunday that the Trump campaign did not commit a crime if it colluded with Russia in the country's alleged interference in the U.S. election that went in favor of President Donald Trump...The current investigation under Mueller, and ongoing probes at the FBI and in Congress, are looking at the finances of Trump’s campaign members and associates. Election-law specialist John Coates, of Harvard University Law School, told Politifact that under the law against fraud, “it is a federal crime to conspire with anyone, including a foreign government, to ‘deprive another of the intangible right of honest services.’” Coates added that discussions between a campaign and a foreigner to achieve such a thing would violate the law. "That would include fixing a fraudulent election, in my view, within the plain meaning of the statute," he said.

SHOULD state-funded adoption agencies be able, for religious reasons, to turn down prospective parents? An increasing number of states say they should, or are beginning to consider it...Meanwhile, adopting from abroad has also become harder. According to the State Department, almost 23,000 children were adopted from abroad in 2004; last year, only 5,400 were...The federal government has also become more hostile. The result, says Elizabeth Bartholet of the child-advocacy programme at Harvard University, is that thousands of children linger in grim institutions.

As the U.S. Department of Education readies for an arduous bureaucratic process to overhaul the rule allowing defrauded students to discharge their debt, advocates are wondering when thousands of borrowers who are seeking relief will get a resolution...In its most recent update, the department said in January that it had approved borrower-defense claims for more than 28,000 Corinthian students. But few details have been forthcoming since. Toby Merrill, director of the Project on Predatory Student Lending at Harvard University's law school, said the department still has the tools it needs to process those claims even after delaying the new rule. “The department’s processing of all borrower defenses has essentially stopped,” she said. “While that’s not an acceptable state of affairs, that’s the state of affairs they’re facing.”

In a major property rights decision, the U.S. Supreme Court has delivered a decisive victory to state and local governments and environmental groups. By a 5-to-3 vote, the justices made it much harder for property owners to get compensation from the government when zoning regulations restrict the use of just part of landowners' property...Harvard Law Professor Richard Lazarus called the decision a "clean, big win for both government regulators and environmental protection." "There is no nuance to the ruling," he said. It is a "soup to nuts" win for the government, and environmentalists.

The Supreme Court on Friday fortified environmental land-use regulations against legal challenges, frustrating property-rights activists who hoped their test case would open a host of development restrictions to constitutional attack...For Richard Lazarus, a Harvard law professor who represented St. Croix County, the ruling marked a long-awaited turnabout. In 1992, he was on the losing side of Lucas v. South Carolina Coastal Council, when the late Justice Antonin Scalia expanded the concept of regulatory takings to rein in environmental laws. Friday’s ruling was “a clean, big win for government regulators and environmental protection. There’s no nuance there,” Mr. Lazarus said.

Harvard law professor and ardent Donald Trump critic Laurence Tribe says the president may have violated federal law by tweeting a warning about secret tapes of fired FBI director James Comey. “It could readily be viewed, as Trump himself has conceded, as an effort to influence the ‘due administration of justice,’ defined under 18 USC sec. 1503 as criminal obstruction of justice,” Tribe told TheWrap in an email. 18 USC 1503 is a federal criminal law that makes it a crime to try to interfere with an official government investigation.

It’s not clear whether President Trump, on the day the Senate health-care bill was released, fessed up that he has no tapes of conversations of then-FBI Director James B. Comey (“I did not make, and do not have, any such recordings”) because he wanted to avoid intense media coverage of his embarrassing bluff or because the health-care bill is so bad that any distraction is welcome. Either way, no communications strategy can hide a bad health-care bill and another legal misstep that special prosecutor Robert S. Mueller III can use to ensnare him...Constitutional lawyer Larry Tribe also points me to the federal statute that prohibits sending a “threatening letter or communication” that “endeavors to influence … the due administration of justice.”

An op-ed by Jeannie Suk Gersen. ...On Monday, the Supreme Court unanimously ruled the disparaging-trademarks provision unconstitutional, as a violation of free speech protected by the First Amendment. (The court’s newest Justice, Neil Gorsuch, did not participate because the case was heard before he was confirmed.) Going forward, the government will not be able to deny registration of any trademark simply because it is considered offensive. The ruling makes all manner of racist, sexist, or otherwise insulting terms eligible for federal registration by someone who wishes to use them to identify the goods or services they are selling. Lots of money can be at stake.

An op-ed by Chiraag Bains. A jury recently acquitted Minnesota police officer Jeronimo Yanez in the 2016 killing of Philando Castile, a beloved school cafeteria worker. On Tuesday, the prosecutor’s office released key evidence, including video from Yanez’s squad car and his interview with investigators. Two things are evident from the new material: Castile’s every move was calculated to maintain safety and survive the encounter, and Yanez was responsible for turning the situation deadly.