Media Mentions

An op-ed by Cass Sunstein...To be sure, no one is above the law. Political opponents of a president cannot claim immunity from prosecution. But the bar must be set very high. That conclusion is vindicated not only by principle, but also by longstanding traditions. Whether Republican or Democratic, American presidents have been extraordinarily reluctant to call for prosecution of their political rivals. They have looked forward rather than backward. With his enthusiasm for prosecuting Hillary Clinton, President Donald Trump is breaking that longstanding norm of American democracy.

...Tomiko Brown-Nagin, professor of history in the Faculty of Arts and Sciences, Daniel P.S. Paul Professor of Constitutional Law, faculty director of the Charles Hamilton Houston Institute, and co-director of the Program in Law and History at Harvard Law School, grew up in the Deep South in the 1970s and was among the first African-Americans in her area to attend an integrated school. “Many will say desegregation is too costly for black students; there’s social isolation, low expectations, and a lot of other disadvantages,” Brown-Nagin said. “But at bottom the benefits outweigh the costs. Students who attend desegregated schools end up with higher career aspirations and in a higher place in our world.”

The first time a woman made a very public allegation of sexual harassment before Congress, against a very prominent man, she was greeted with skepticism and hostility by male members of Congress...More than a quarter century later, public people in politics, entertainment and journalism are battling sexual harassment or assault charges...But one things appears to be changing, something that was voiced by Senate Majority Leader Mitch McConnell when he was asked about the Alabama man hoping to join McConnell's caucus next month. "I believe the women," McConnell said in his characteristic, low-key intonation...Catharine MacKinnon, who pioneered the legal concept of sexual harassment, notes the change in attitude – if not necessarily behavior. "Women reporting sexual harassment, for the moment at least, are being believed. The biggest difference as a result is that what was a privilege of power has become a disgrace," says MacKinnon, who teaches law at both Harvard Law School and the University of Michigan.

An open letter to the Massachusetts Legislature from Chelsea Barabas, Christopher Bavitz, Ryan Budish, Karthik Dinakar, Cynthia Dwork, Urs Gasser, Kira Hessekiel, Joichi Ito, Ronald L. Rivest, Madars Virza, and Jonathan Zittrain. Dear Members of the Massachusetts Legislature: We write to you in our individual capacities¹ regarding the proposed introduction of actuarial risk assessment (“RA”) tools in the Commonwealth’s criminal justice system. As you are no doubt aware, Senate Bill 2185² — passed by the Massachusetts Senate on October 27, 2017 — mandates implementation of RA tools in the pretrial stage of criminal proceedings...As researchers with a strong interest in algorithms and fairness, we recognize that RA tools may have a place in the criminal justice system. In some cases, and by some measures, use of RA tools may promote outcomes better than the status quo. That said, we are concerned that the Senate Bill’s implementation of RA tools is cursory and does not fully address the complex and nuanced issues implicated by actuarial risk assessments.

Peggy Fontenot has had a successful career as a Native American artist working in beading, silver jewelry and black-and-white photography. She's won numerous awards at art shows and has shown her work at top-tier museums. Today her career is in jeopardy because of a 2016 state law that says only members of federally-recognized tribes can market their work as "Native American" or "Indian made." Fontenot is a part of the Patawomeck tribe, which is recognized only in the state of Virginia. Now she's suing the state on the grounds that the law violates her First Amendment rights. "To call every state-recognized tribe fake and illegitimate is just broad sweeping and wrong," Fontenot told Reason...Rebecca Tushnet, a Harvard law professor, says the Oklahoma law may have been poorly crafted, but was well-intentioned. She says fraud in the Native American art market is big problem.

An op-ed by Gabriella Blum. Wars used to be justified by their goals. Territorial expansion, restitution or claiming property, securing a throne, and mass religious conversion were all acceptable goals under the tenets of Just War Theory; and they all justified war to begin with, particularly if you ended up attaining them at the end. But since we no longer live in a legal world that sees war as the continuation of diplomacy, when we do end up going to war, it is becoming harder to define our goals. Indeed, our preoccupation with the legality or the justification for war often clouds our ability to see war – and judge it – in terms of goals sought and achieved.

...The Harvard Trademark Program licenses the University’s trademarks and investigates unauthorized use of the Harvard name. Within the College, the Office of Student Life places careful restrictions on how a student group can claim Harvard affiliation. Similar bodies exist for the University’s other schools. “The law here is actually a little murky because in general, you do have the right to say true things,” says Rebecca L. Tushnet ’95, a Law School professor who specializes in trademark law. “But Harvard can get around your right to say true things by making it part of the deal—that if you want to be recognized by the University, and if you want access to these other campus resources, you have to agree to their guidelines for using the Harvard name.”

State attorneys general have operated in an increasingly partisan manner in recent years -- both in terms of how they campaign and what cases they pursue. State AGs have a long history of working together in a bipartisan fashion -- pursuing consumer cases, for example, that affect people across state lines. That still happens. But now, incumbent AGs are targeting their peers in other states in a way they've never done before...Now that Donald Trump is president, it's Democratic AGs who are regularly suing the administration over issues such as immigration and the environment. The homepage for the Democratic Attorneys General Association boldly states: "Democratic Attorneys General are the first line of defense against the new administration." "All the Democrats are pretty well lined up on these Trump investigations," says Jim Tierney, who runs a program on AGs at Harvard Law School. "The presumption is that everyone will be in on the Democratic side."

On May 23, an email landed in the sales inbox of a San Francisco startup called HiQ Labs, politely asking the company to go out of business. HiQ is a “people analytics” firm that creates software tools for corporate human resources departments...In other words, as far as LinkedIn was concerned, HiQ was the tuna. When the larger company’s lawyers made that clear to Weidick, he hired the law firm Farella Braun & Martel. Deepak Gupta, a partner there, thought the case might interest his former professor, Laurence Tribe...When Gupta called, talking about a battle over control of social media data, Tribe says, “my constitutional nostrils flared.”

An op-ed by Noah Feldman. Fasten your seatbelts. If all the relevant actors are guided primarily by their political self-interest, Roy Moore is headed for the U.S. Senate. And if that happens, we are in for a major national fight about expelling him from his seat, which could function as a partial preview of an impeachment trial of President Donald Trump. The logic behind this analysis is that Moore will almost certainly be elected in Alabama’s special election next month. It’s effectively too late for Republicans to stage a write-in campaign against him even if they wanted to try.

An op-ed by Cass Sunstein. In all the talk these days about the Constitution’s impeachment provision, there is widespread confusion about the meaning of the document’s mysterious words making the president, the vice president and other high-level officials impeachable for “Treason, Bribery, or other high Crimes and Misdemeanors.” If you want to know what impeachment is all about, it’s best to put contemporary issues to one side and start with a document that should unite each and every American: the Declaration of Independence.

An op-ed by Mihir Desai. In the annals of U.S. tax overhauls, 1986 is the modern guidepost. That was when a Republican White House joined forces with a divided Congress to modernize and simplify the U.S. tax code, cutting taxes on most Americans and raising them for some powerful interest groups. It was the last piece of tax legislation to deserve the label “reform.” Republicans promised another set of reforms this year, but have pretty much abandoned comprehensive change in favor of tax cuts, mainly for companies and wealthy individuals. Lacking offsetting revenue increases as significant as those of 1986, the proposals are likely to increase U.S. budget deficits and the national debt.

On Friday, the Wall Street Journal reported that retired general Michael Flynn was under investigation for allegedly taking part in discussions about a plot to kidnap and extradite a controversial Turkish cleric in exchange for $15 million. Both Flynn’s lawyer and the Turkish regime quickly denied knowledge of or involvement in any such plot, which one source told the paper might involve use of a private jet and a Turkish prison island. But word of the investigation, reportedly part of special counsel Robert Mueller’s probe into possible collusion between the Trump campaign and Russia, represented just the latest humiliation for the man whose stint as national security advisor was, at 26 days, a historically short one...“It is not clear that there is a direct link between the allegations of Flynn’s involvement in a plot to kidnap or extradite Gulen to Turkey and collusion with Russia,” said Alex Whiting, a Harvard legal scholar and criminal prosecution tactics expert. “But Mueller’s appointment as special counsel permits him to pursue any matters that arise during the investigation.”

Cyber-attacks are on the rise, threatening power grids, driving up geopolitical tensions, and even crippling hospitals. Countries should agree a new “Digital Geneva Convention” to contain the risk and set up a new international organisation to police the new rules. These proposals from Microsoft’s chief legal officer, Brad Smith, also say that neutral companies dealing with the fallout should win protected status, like a technological Red Cross. Opinions differ on where the gaps are, if any, in international law, and whether Microsoft is a credible voice on the issues or just looking after its own vested interests...Dustin Lewis, senior researcher at the Harvard Law School Program on International Law and Armed Conflict, told IRIN: "the legal and political aspects are difficult, if not impossible, to completely dissociate".

While corporate profits might seem incongruous with doing social good, Howard Schultz, the executive chairman of Starbucks, would counter that the opposite is true. There is a great need, Mr. Schultz said, “to achieve the fragile balance between profit, social impact, and a moral obligation” to do everything possible “to enhance the lives of our employees and the communities we serve.”...The discourse about how companies should make money dates to the early 1600s in Amsterdam. The Dutch East India Company, the world’s first publicly listed company, profited “by war, rape, pillage and colonization,” said Stephen Davis, associate director and senior fellow of the Harvard Law School Program on Corporate Governance. “A group of Dutch burghers protested, arguing that the company should abide by ethical principles, so they launched what became the world’s first shareholder boycott of company stock on social grounds,” Dr. Davis said.

As the LPGA Tour prepares for the final tournament of its 2017 season, sports law expert and current Harvard Law School instructor Peter Carfagna has been elected as the incoming Chair of the Ladies Professional Golf Association's (LPGA's) Board of Directors, effective January 1, 2018..."I'm absolutely delighted to take on the role as Chair of the LPGA’s Board of Directors," said Carfagna. "Mike Whan and his executive team are true 'major league' players in the sports world - it will be my pleasure to work closely with them, and with our player and other independent directors, to accomplish the very ambitious Strategic Plan which will continue to showcase the LPGA as the premier women’s professional sports organization in the world."

With his term of office nearing a close, Mayor Kasim Reed has replaced the lawyer who headed up the Municipal Public Defender Office since 2010, tapping PD managing attorney Kenneth Days III to take over. The decision to oust interim PD Rosalie Joy comes after several lawyers and civil rights organizations expressed alarm at what they described as a campaign by some municipal court judges to fire Joy...Jon Rapping, Gideon’s Promise president and a law professor at Atlanta’s John Marshall Law School and Harvard Law School, said he hoped incoming PD Days would not face the same sort of judicial pressure Joy has alleged. “Ms. Joy’s removal appears to be retaliation for her challenging unconstitutional practices,” said Rapping via email. “That some judges may have unethically interfered with the independence of the public defender is of grave concern for poor people in Atlanta trapped in [the] Municipal Court’s system.

...Led by Wendy Jacobs, the Emmett Clinical Professor of Environmental Law and director of the Emmett Environmental Law and Policy Clinic at Harvard Law School, and developed in collaboration with the Harvard Office for Sustainability, the three-year research and teaching project was funded by the University as part of its living lab initiative to use the campus as a test bed for innovative sustainability solutions that can then be replicated across much broader levels. “No single professional discipline can tackle climate change in isolation; collaboration is critical,” said Jacobs...“The science behind a nitrogen fertilizer emissions-reduction strategy is already solid, but the challenge was developing an economical and practical implementation plan that could transform the concept into a feasible project,” said Harvard Law School student Chaz Kelsh [`18].

A month after his light-hearted appearance at Harvard Law School’s Bicentennial Summit, U.S. Supreme Court Chief Justice John G. Roberts ’76 was all business when he returned to the Law School Tuesday night to preside over the final round of the Ames Moot Court Competition...Henry J. Druschel [`18], a third-year Law student and the captain of the winning team, said that the prospect of writing briefs and arguing before a Supreme Court Justice was “nerve-racking.” “It certainly drives you to put the most effort that you can into this, and make sure that the product that you put out is as close to professional quality as we can do as inexperienced law students,” he said. “We’re dealing with live issues of law and so it’s all very exciting.”...David Phillips [`18], a third-year student, won the award for best oralist for his arguments before the moot court. The teams argued a case about gender equity in the military draft process.

President Trump did not need to send a memo or telephone his attorney general to make his desires known. He broadcast them for all the world to see on Twitter. The instruction was clear: The Justice Department should investigate his defeated opponent from last year’s campaign. However they were delivered, Mr. Trump’s demands have ricocheted through the halls of the Justice Department, where Attorney General Jeff Sessions has now ordered career prosecutors to evaluate various accusations against Hillary Clinton and report back on whether a special counsel should be appointed to investigate her...“I have no idea what will happen but this letter is entirely consistent with the A.G. later saying, ‘we followed normal process to look in to it and found nothing,’” said Jack L. Goldsmith, a former top Justice Department official under Mr. Bush. “The letter does not tip off or hint one way or another what the A.G.’s decision will be.”

Troves of recent comments from supporters and critics of a Trump administration plan to support coal and nuclear power generation are just the beginning of what promises to be a bitter battle over the future of electricity markets. As the Federal Energy Regulatory Commission sifts through arguments over a Department of Energy proposal to prop up "fuel-secure" generators to boost the grid's resilience, one thing is clear: The embrace of any approach that appears to favor coal and nuclear over other fuel sources will spark a mad dash to the courtroom..."FERC can only order a change in rates if it first concludes that current rates are unjust and unreasonable," said Harvard Law School electricity expert Ari Peskoe, who noted that FERC's previous proposals for market rules through the years have included such a finding. "That's fundamental to the Federal Power Act. It's to protect utilities and the public from arbitrary rate changes."