Media Mentions

The University of British Columbia plans to introduce a standalone sexual-assault and misconduct policy and establish a centre to support assault survivors, the latest Canadian postsecondary institution to respond to persistent calls for the education sector to address such incidents on campus...But UBC's experience developing the new guidelines also shows the challenges of designing a policy with more ambitious goals than those of a criminal proceeding, from identifying repeat offenders to educating the campus community. Getting it right is like balancing on a "knife's edge," wrote Harvard law professor Jeannie Suk Gersen in an essay in The New Yorker about the experience of American universities in this area.

A former US solicitor general said this week that what will be key to whether President Donald Trump is victorious defending his immigration moratorium in the court system is whether the executive order is interpreted solely based on the text of the document. Charles Fried, who served as solicitor general under President Ronald Reagan and is now a Harvard law professor, told Business Insider that things may not bode well for Trump if the court decides to consider statements he made along the campaign trail about banning Muslims from entering the country. "What shadows any such effort is the question whether these executive orders have to be interpreted within the four corners (purely on the text of the documents) ... or whether various statements — including statements by candidates, including statements by advisers, including 3 a.m. tweets — whether those bare on the constitutionality in the sense that they are considered competent evidence of the intent of the order," Fried said.

The Syrian government commits an atrocity. The United States and the United Nations denounce it. Nothing happens. It’s a pattern that experts say will likely continue with the revelation this week that, since 2011, officials at a military prison in Syria have summarily executed as many as 13,000 people by hanging...The U.N. has several options, said Alex Whiting, a professor at Harvard Law School and former war crimes and genocide prosecutor. The Security Council could refer the matter to the International Criminal Court, as it did in Libya just weeks after fighting began there in 2011. It could create an ad-hoc war tribunal, as it did after reports of war crimes emerged in the former Yugoslavia in 1993. Or if a peace deal were imminent, the U.N. could ensure that its terms included a tribunal, as was agreed to in South Sudan in 2015. “Where there is political will and political agreement the Security Council can act very quickly,” Whiting said. “The problem is that the five permanent members of the Security Council have to agree.”

...Democrats and their progressive allies are marching in lock step to oppose Judge Gorsuch, whose record they find deeply troubling, and gay pundits are painting him as a homophobe. But interviews with his friends — both gay and straight — and legal experts across the political spectrum suggest that on gay issues, at least, he is not so easy to pigeonhole...Gay rights groups draw inferences from Hobby Lobby — Ms. Tiven calls the case ‘‘particularly telling’’ — to argue that Judge Gorsuch would err on the side of religious freedom in cases involving discrimination against gays. But Laurence Tribe, a law professor at Harvard, is unconvinced. “I do not agree that Hobby Lobby is a death knell that proves Judge Gorsuch would say that people can, on religious grounds, violate anti-discrimination laws,” Mr. Tribe, who said he did not have Judge Gorsuch as a student, said in a recent interview. He called the case “an indicator” but not “a slam-dunk predictor.”

A lobbying firm working for Saudi Arabia paid for a room at Donald Trump’s Washington hotel after Inauguration Day, marking the first publicly known payment on behalf of a foreign government to a Trump property since he became president...Lobbying firms typically bill expenses to their client. “If that funneling could launder the emolument, the clause would become a dead letter,” said Laurence Tribe, a constitutional law expert at Harvard who’s also part of the lawsuit.

President Donald Trump is known for shattering political precedent, but experts say the White House's war on Nordstrom for dropping his daughter's clothing line is ordinary behavior. Just not in America. "This is so common in so many parts of the world that perhaps we shouldn't be surprised it eventually happened here," said Matthew Stephenson, a Harvard law professor who studies international corruption. "I'm hoping we find a way to nip it in the bud before it gets out of control."

The White House on Thursday “counseled” Kellyanne Conway, one of President Trump’s top advisers, in an unusual show of displeasure after she urged consumers to buy fashion products marketed by Ivanka Trump, the president’s daughter. Legal experts said Ms. Conway might have violated a federal ethics rule against endorsing products or promoting an associate’s financial interests...Ms. Conway’s remarks amounted to “using your government position as kind of a walking billboard for products or services offered by a private individual,” said Laurence Tribe, a professor of constitutional law at Harvard. “She is attempting quite crudely to enrich Ivanka and therefore the president’s family.” [NYT Quotation of the Day.]

An interview with Nancy Gertner. On Wednesday, Gov. Charlie Baker nominated state Appeals Court Judge Elspeth "Ellie" B. Cypher to serve on the Supreme Judicial Court. This is Baker's fourth nomination in just over two years. Cypher would fill the position held by Justice Margot Botsford, who will be retiring next month.

It’s not every day that a former governor comes before the Supreme Judicial Court, but that’s what happened this week in a case involving Deval Patrick. The Democrat, who left office in 2015, is accused by a former state employee of defamation and is fighting the charge. The unique case raised an equally unique question: Is it wrong for justices who were appointed to the court by Patrick to hear his case? No, said two legal experts. While there are extensive rules governing when justices can and should recuse themselves, this isn’t one of them... Nancy Gertner, a Harvard Law professor and former judge for the US District Court of Massachusetts, agreed, saying the judge would have to have been somehow involved in the case before he or she was on the bench. Gertner said that once a justice is appointed, he or she is expected to be impartial.

Google, Facebook and other online giants like to see their rapid rise as the product of their founders’ brilliance. Others argue that their success is more a result of lucky timing and network effects—the economic forces that tend to make bigger firms even bigger. Often forgotten is a third reason for their triumph: in America and, to some extent, in Europe, online platforms have been inhabiting a parallel legal universe. Broadly speaking, they are not legally responsible, either for what their users do or for the harm that their services can cause in the real world...“The internet is no longer a discrete side activity,” says Jonathan Zittrain of Harvard Law School...The industry would naturally prefer self-regulation. Platforms not only have strong incentives to spot bad actors, but good information to identify them and the means to sanction in response, notes Urs Gasser of the Berkman Klein Centre for Internet & Society at Harvard University.

President Donald Trump engaged in a bitter struggle with the judiciary this week, as he seeks to uphold his controversial ‘Muslim ban’. On February 3, District Judge James Robart of Seattle granted a temporary restraining order on the ban after complaints that it unlawfully discriminated against Muslims. The Department of Justice subsequently filed a request for an emergency stay on the ruling with the Ninth US Circuit Court of Appeals in San Francisco, claiming that there are no legal defects in President Trump’s executive order... Laurence Tribe, professor of constitutional law at Harvard Law School, believes that Judge Robart’s ruling was correct. He told The World Weekly that President Trump’s travel ban was “religiously discriminatory and shockingly arbitrary”.

...Their litigation is now being hailed by some Tennessee walking horse activists as the impetus for an abrupt USDA decision last week to pull from its public website all enforcement records related to horse soring and to animal welfare at dog breeding operations and other facilities...Under the Trump administration, the USDA, which does not yet have a secretary, took less than three weeks to approve the removal of records that had been available for at least seven years. “I think it was probably easier to make this wholesale shutdown under the new administration,” said Delcianna Winders, a fellow at Harvard University’s Animal Law & Policy Program who is deeply familiar with the database.

An op-ed by Charles Fried. Back when Elizabeth Warren was inveighing against sleazy mortgage brokers who were selling mortgages with low rates to unqualified home buyers — mortgages that would balloon to the unaffordable long after the brokers had collected their commissions — she was called out by one miscreant, who asked her if she believed in capitalism. Representatives of big banks and brokerages — not to mention members of Congress — are repeating this line of questioning in defending capitalism against the Department of Labor’s fiduciary rule, which they would like to repeal. The standard Marxist line on capitalism is that it is a sordid scene where the powerful, shrewd, and ruthless enrich themselves by systematically exploiting and immiserating their fellows. And that explanation does come close to describing the crony capitalist kleptocracies that blight many potentially prosperous but miserable nations. But that is not the true face of capitalism.

Since Donald Trump won the presidential election in November 2016, everything’s been busier at the Harvard Immigration and Refugee Clinical Program...The clinic has also hired a new staff attorney, Jason Corral, to work full-time to support undocumented students on campus, and hired clinical instructor Cindy Zapata to oversee the clinic’s expanded programs. Staffers at the clinic also helped pen an additional amicus brief opposing Trump's order. In short, it’s been a hectic month. Maggie J. Morgan ’04, a clinical and advocacy fellow overseeing students at the clinic, said that although it is still unclear how the executive orders will play out, there is already much to do to support clients...As part of its approach to immigration and refugee rights issues, the clinic, in conjunction with the Harvard Immigration Project—a student practice organization at the Law School—has launched the Immigration Response Initiative, an umbrella project with nine sub-projects. Among its other initiatives, members of the project have created a sanctuary campus toolkit and FAQ for students about the immigration executive order, according to Amy E. Volz '18, a Law School student and the co-president of HIP...The clinic also released a report Wednesday called “The Impact of President Trump’s Executive Orders on Asylum Seekers,” written by staff and students affiliated with the clinic...The report has already gained significant traction in Canada, where legislators are considering suspending the refugee agreement, clinic director and Law School professor Deborah E. Anker said.

In 2004, the Canadian and U.S. governments signed a treaty to streamline their refugee systems. The Safe Third Party Agreement dictates that most refugees who first land in the United States cannot then claim asylum in Canada, and vice versa...The case for suspension is put forward obliquely but with particular force in a new report out of the Harvard University Law School. The authors chronicle the grave potential consequences of Trump’s three executive orders on immigration: the large-scale detention of asylum seekers, the removal of refugees without due process, the empowering of local officials to detain individuals on “mere suspicion” of immigration violations, the discrimination based on asylum seekers’ religion and nationality, among other inhuman and arguably unconstitutional outcomes. “We are not going to tell the Canadian government what to do,” the authors write, “but the finding that the U.S. is safe is wrong and unfounded, and should be blown out of the water.”

An op-ed by Noah Feldman. The decision by the U.S. Court of Appeals for the 9th Circuit upholding a nationwide freeze on Donald Trump’s immigration executive order is a powerful rebuff to the administration -- and to the president personally. The court went out of its way in its opinion released Thursday to emphasize the right and the duty of the judiciary to rule on the constitutionality of executive action, even when national security is on the line. The unanimous panel was unwilling to bow to the personal pressure that Trump aimed at it. And, tellingly, the most important recent precedents the court cited were written by Justice Anthony Kennedy, whose vote will be crucial if and when the case goes to the U.S. Supreme Court.

An op-ed by Noah Feldman. White House counselor Kellyanne Conway broke federal ethics rules Thursday by endorsing Ivanka Trump’s clothing line -- that much is open and shut. If Conway worked for a regular government agency, she’d be temporarily suspended for a first offense, and fired for a second. But because her punishment depends on President Donald Trump, she has been “counseled,” not sanctioned. There’s a lesson here about difference between law and morals. It may seem worrisome that ethics rules can be so easily ignored by an administration that chooses to do so. But the truth is that, ultimately, ethics rules are only as good as the administration that applies them. If we don’t like the administration’s morality, we have only one real option: vote it out of office.

An op-ed by Noah Feldman. No matter how the U.S. Court of Appeals for the 9th Circuit rules, the legal challenges to President Donald Trump’s executive order on immigration from seven majority Muslim countries won’t be over. Not even close. That’s because, in addition to the case that currently has the policy on hold, a number of challenges to different aspects of the order by different kinds of plaintiffs are pending in courts across the country. This may seem perverse, given the need for a single immigration policy. But it’s the way challenges to federal action proceed almost all of the time, and it follows the same convoluted path as the arguments against the Affordable Care Act during Barack Obama’s presidency. Ultimately only the U.S. Supreme Court can impose uniformity throughout the federal judicial system. This system isn’t perfect, but it has stood the test of time.

News emerged Wednesday morning from Bloomberg News of an Akin Gump partner who was arrested by the Federal Bureau of Investigation on charges of trying to sell a copy of a secret lawsuit to the company under investigation...Neil Eggleston, former President Barack Obama’s White House Counsel who is now a lecturer at Harvard Law School, said that the news isn’t good publicity for Akin Gump, but that it wouldn’t “have much impact” on the firm. “No partner at Akin Gump is happy reading this morning about one of their partners alleged to be involved in some serious criminal conduct,” said Eggleston. “It’s quite unfortunate. But this will not have a lasting impact on Akin Gump.”

An op-ed by Cass Sunstein. The first weeks of the Trump administration have not exactly been characterized by an excess of regular order. So there’s special reason to applaud a document it released last week that helps to make sense of one of the president's controversial actions -- an unprecedented executive order limiting regulation. The order itself, requiring agencies to eliminate two regulations whenever they issue a new one, produced applause, confusion and alarm when it was announced on Jan. 30. The good news is that the highly professional "interim guidance document" that quietly followed the order three days later answers numerous open questions about it, and does so quite sensibly and in just a few pages.

Less than a month after being sworn in, Donald Trump has begun to destroy the Internet. Well, at least that seems to be the opinion of multiple Internet activists and politicians...Harvard law professor and Net neutrality advocate Susan Crawford likes the idea of Internet rate regulation.“The federal government should be requiring wholesale fiber networks to be available at reasonable prices throughout the country,” she told me. Crawford added that even if the agency didn’t actually set rates, the mere threat would keep Internet providers in line.