Media Mentions

President Donald Trump's personal attack on the federal judge who blocked his controversial travel executive order could undermine public confidence in an institution capable checking his power, say legal experts...Harvard Law Professor Jack Goldsmith said on his blog that Trump's order actually has a "surprisingly strong basis in law but was issued in haste, without proper inter agency coordination, without proper notice, without adequate consideration of its implications." But, Goldsmith added, Trump's aggressive tweets "will certainly backfire." "The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with the significant deference to the President's broad delegated powers," he wrote. And yet, having a judge strike down the executive order might have been exactly what Trump was aiming for, Goldsmith wrote — "assuming that he is acting with knowledge and purpose." "The only reason I can think of is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration," Goldsmith wrote.

If a refugee commits a crime, will a federal judge have blood on his hands? President Trump says yes...But suppose that "something happens" with one of the new arrivals. Who knows; an individual could become radicalized. It would be understandable for some to blame the "court system"— understandable but wrong, according to Harvard Law School professor Charles Fried. He was the solicitor general , the government's official lawyer before the U.S. Supreme Court, during the Reagan administration. "If [an attack] were to happen it would be the fault of the law," Fried told NPR's Morning Edition, "because the judge would have determined that the law requires this." The job of the courts is to interpret the law — not to bend it to the demands of public officials.

In sentencing a 19-year-old who pleaded guilty to statutory rape last week, a judge in Idaho made clear his punishment would include an extra wrinkle: government-mandated celibacy. The unusual proclamation by Judge Randy Stoker of the Fifth District of Idaho that abstinence would be a condition of probation appears to be based at least partly on an archaic, rarely enforced state law that forbids premarital sex...Nancy Gertner, a lecturer at Harvard Law School and a former federal judge, said fornication laws often stay on the books only because they are enforced so infrequently that they have not been challenged. They would likely crumble under legal scrutiny, she said. She said fornication laws were seen as unconstitutional after the United States Supreme Court 2003 decision in Lawrence v. Texas, which was considered a landmark case for gay rights because it struck down state sodomy laws. At the same time, the decision codified a broader principle that decriminalized the private sexual behavior of consenting adults, Ms. Gertner said. While judges are free to impose specific limitations related to the crimes of those on probation, “there are limits that have to do with dignity and substantive due process,” she said. A judge could not force someone to get a lobotomy or a vasectomy, and limiting a person’s private sex life struck her as a similar overreach.

If the #DeleteUber campaign taught the tech industry anything, it’s that trying to stay neutral on President Trump’s refugee ban can quickly turn into a marketing catastrophe. Little wonder then that late last night, 97 tech companies—including Apple, Facebook, Google, and, yes, Uber—filed a friend-of-the-court brief in the US Court of Appeals for the Ninth Circuit arguing against the ban. In the face of the outcry against Trump’s executive order, such a grand gesture makes for good optics. But legal experts say the brief is about more than Silicon Valley’s public image. In this case, tech’s support could help the plaintiffs prevail against Trump...the case is probably headed to the US Supreme Court, where business has influenced major decisions in the past. “In the most important affirmative action case decided by the Supreme Court in recent years, Grutter v. Bollinger, a brief from the Business Roundtable and another from the military are known to have made a significant difference,” says Laurence Tribe, a professor at Harvard Law School.

ImeIme A. Umana ’14’s historic election as the first black woman president of the Harvard Law Review is one deserving of heartfelt congratulations. We are gratified to see a woman of color breaking barriers in such a high-profile position, and believe that her election shows young girls of color around the country that their futures have limitless potential. Umana is an inspiration to these girls, and this in itself is an admirable path of scholarship and public service. We hope that other girls will similarly run for leadership positions in organizations where they once were not even allowed in the door. Amid the celebration of Umana’s achievement, however, we must not too hastily extrapolate a broader societal point. Too often, media attention focuses on the individual accomplishments of minority students, holding them up as emblematic of broader holistic progress towards equality. This narrative, however, overlooks the disparities that continue to plague our society.

...Democrats should take a page out of the Republican playbook and fight President Trump over his nominee to the Supreme Court, not the nominee himself. And the very practical reason for this tactic came to light during my interview with renowned Harvard Law School professor Laurence Tribe. In the theater that will be the battle over federal judge Neil Gorsuch, only one person watching the drama will matter: Justice Anthony M. Kennedy. Just due to the age of the justices, Tribe thinks there could be three vacancies that need to be filled during Trump’s presidency. But Tribe focused on Kennedy. And because he is the Supreme Court’s swing vote, the battle to seat his successor is bound to make all other confirmation fights look tame. But, as Tribe explained, Kennedy’s decision to retire could hinge on how messy the Gorsuch confirmation battle gets.

Four Harvard faculty members joined in filing an amicus brief in a federal appeals court Sunday night to support another legal challenge to President Donald Trump’s immigration order. Over 200 law professors and clinicians signed the brief filed in the Ninth Circuit Court of Appeals by Fatma Marouf, a Harvard Law School alumna and Director of the Immigration Law Clinic at Texas A&M; University School of Law...Harvard Immigration and Refugee Clinic Director Deborah E. Anker worked with Marouf— her former student—to draft the brief, and assistant director Sabrineh Ardalan helped compile signatures. Anker, Ardalan, Law School professor Bruce Hay, and School of Public Health professor Jacqueline Bhabha are all signatories. The law professors and clinicians argue that their “first-hand” experience working with clients makes their perspectives relevant to the case. The executive order “creates a serious risk of irreparable harm to our clients, students, and colleagues who have nonimmigrant (temporary) visas at United States universities,” they charge.

I always hate talking about myself in a positive way,” said attorney Rowan Wilson [`84] when asked by state Sen. John Bonacic, the Republican chair of the chamber’s Judiciary Committee, if he has the temperament to become an associate judge on New York’s Court of Appeals. Lucky for Wilson, then, that he had been preceded by representatives of the state Bar Association and the Trial Lawyers association who called him an impressive nominee with experience in both commercial litigation and pro bono work at the Manhattan offices of the prominent law firm Cravath, Swaine & Moore.

Constitutional Law Professor Laurence Tribe, a renowned professor at Harvard Law School, believes that President Donald Trump‘s handling of the litigation surrounding his controversial executive order on immigration could end up being grounds for impeachment...Tribe is specifically referring to allegations that the Trump administration purposely slow walked a Virginia judge’s order to provide travelers detained at Dulles airport last weekend with lawyers...This could well be deliberate and knowing failure by the President to comply with a facially lawful court order,” Professor Tribe explained to LawNewz.com.

Late last week, the Department of Agriculture quietly scrubbed thousands of public records about animal abuse from its website, a move that's left animal rights groups and open-government advocates fuming...Delcianna Winders, the academic fellow at Harvard University's Animal Law & Policy Program, told me over the phone that the documents in the database were already redacted to remove private information such as signature and contact information. Winder calls the government's explanation for why they were removed from the USDA's website "Orwellian" and has filed a FOIA request for all the communication around this decision to try to find out precisely what prompted the removal. "This is a really loud signal that the assault on transparency isn't just about hot topics like climate change," said Winders, "but even something we all agree on, that's pretty innocuous, like animal welfare."

During his first news conference as President-elect last month, Donald Trump boasted that even though he could continue to run his sprawling business empire, he wouldn't because he didn't like "the way that looks."..."A revocable trust is a wholly inadequate trust to separate from a conflict of interest," Harvard Law School Professor Robert Sitkoff told the Daily News. "Trump has the power to override any decisions … It is not a functional separation, only a formal separation."

An op-ed by Noah Feldman. One emerging theme of the Trump administration’s foreign policy so far has been destabilization and surprise. President Donald Trump has used phone calls and tweets to shake up previously rock-solid relationships like those with Australia and Mexico. Traditional allies in Europe and Asia are worried about whether they can still rely on the U.S. for protection from Russia and China respectively. Changing the status quo in surprising ways can be an effective foreign policy strategy, as Russian President Vladimir Putin showed with the unexpected takeover of Crimea and his intervention in Syria. But there’s a key difference between Russia, a weakened power seeking to improve its position, and the U.S., the world’s reigning superpower. Change and unpredictability favor rising powers.

An op-ed by Daniel Epps, Leah Litman and Ian Samuel. When President Trump dashed off an executive order banning nationals of several predominantly Muslim countries from entering the United States, he encountered pushback from a surprising source — the federal government itself. At the Department of Justice, Acting Attorney General Sally Yates announced that the order appeared unlawful and directed DOJ lawyers not to defend it in court. Around the same time, more than 1,000 State Department employees signed a “dissent memo” detailing strenuous objections to the ban. Although both incidents involved rebukes to Trump by federal employees ostensibly under his command, he responded to them in remarkably different ways. He swiftly fired Yates and replaced her with someone who was willing to defend the order. But the many dissenting State Department employees were not so swiftly dispatched. Their only punishment so far has been a press conference tongue-lashing. Sean Spicer, Trump’s press secretary, angrily told the “career bureaucrats” who signed the memo that they can “either get with the program or they can go.”

Scott Pruitt, President Trump’s pick to run the Environmental Protection Agency, is drawing up plans to move forward on the president’s campaign promise to “get rid of” the agency he hopes to head. He has a blueprint to repeal climate change rules, cut staffing levels, close regional offices and permanently weaken the agency’s regulatory authority...Mr. Pruitt’s draft climate rule is designed to leave most coal-fired power plants open, but require them to install energy-efficient technology to slightly lower their emissions. “A rule like that might satisfy the letter of the law,” said Richard J. Lazarus, a professor of environmental law at Harvard, “and would probably cut emissions less than a quarter of the Obama rule.”

A broadband vision for the Berkshires crashed and burned one afternoon in December 2015. A year later, people still poke through the wreckage. They want to understand why the Massachusetts Broadband Institute halted its long-running alliance with WiredWest, a nonprofit, grassroots cooperative that had signed up dozens of towns to build and operate a shared internet network...Susan Crawford, a law professor at Harvard University who co-directs the Berkman Klein Center for Internet & Society, says a change from backing municipally owned broadband networks to preferring private-sector solutions is “killing” the communities of Western Massachusetts. In a recent online commentary, Crawford came out swinging: “This is the story of a dramatic failure of imagination and vision at the state level: Governor Charlie Baker’s apparent insistence that Massachusetts relegate small towns to second-rate, high-priced, monopoly-controlled (and unregulated) communications capacity. It’s a slow-rolling tragedy that will blight Western Massachusetts for generations.”

A Massachusetts federal judge ruled Friday against plaintiffs supported by Harvard and other Boston-area universities, declining to extend a temporary stay on President Donald Trump’s immigration order. The suit—filed by five individuals from countries listed in Trump’s order and international non-profit organization Oxfam—called for an extension of a ruling that temporarily opened Massachusetts to travellers from the listed countries...Harvard and seven other universities in the area—Boston College, Boston University, Brandeis, MIT, Northeastern, Tufts, and Worcester Polytechnic Institute—filed an amicus brief Friday morning requesting that the judge grant “declaratory and injunctive relief” to the plaintiffs...Harvard and the other universities outlined an argument similar to Oxfam’s in their 40-page amicus brief, according to Law School professor Gerald L. Neuman, who specializes in immigration law...“The thing that’s so unusual about this is it’s a high-profile event that affects a lot of people in so many different cases, and they’ve been able to mobilize legal representation, and all of a sudden there’s all this parallel litigation moving forward,” Neuman said.

...Chicago’s violence interrupters are in a moment of crisis. Nearly 20 years after epidemiologist Gary Slutkin founded their parent organization, Cure Violence, the program’s Illinois state funding — $4.5 million as recently as two years ago — has evaporated. A $1 million grant it got from Chicago Police in 2012 was never renewed. The Chicago chapter, called CeaseFire, now subsists on just a few small grants from private donors....Thomas Abt, a senior fellow in criminal justice and security at Harvard Law School and the Kennedy School of Government, said that sometimes intervention workers cross the line from being independent to being adversarial with the police. If that happens, he said, “they may reinforce community distrust of law enforcement, and that can aggravate the violence they’re trying to prevent.” Abt favors an arrangement in which outreach workers and police officers can cooperate to prevent violence.

An op-ed by Laurence Tribe and Joshua Matz. As our Supreme Court weighed the First Amendment implications of brutal video games back in 2011, Justice Samuel Alito cut in with a sarcastic jab: “Well, I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” This wasn’t the first time that scientific advances had divided these super-conservative justices—and that speaks to a crucial point. While the confirmation hearings for Judge Neil Gorsuch will involve familiar debates over how to read the Constitution, judicial orientations toward new technology can scramble the fields in surprising ways.

President Trump is barreling into a confrontation with the courts barely two weeks after taking office, foreshadowing years of legal battles as an administration determined to disrupt the existing order presses the boundaries of executive power....Charles Fried, solicitor general under Ronald Reagan, said the ruling by a Federal District Court in Washington State blocking Mr. Trump’s order resembled a ruling by a Texas district court stopping Mr. Obama from proceeding with his own immigration order. But rarely, if ever, has a president this early in his tenure, and with such personal invective, battled the courts. Mr. Trump, Mr. Fried said, is turning everything into “a soap opera” with overheated attacks on the judge. “There are no lines for him,” said Mr. Fried, who teaches at Harvard Law School and voted against Mr. Trump. “There is no notion of, this is inappropriate, this is indecent, this is unpresidential.”...Jack Goldsmith, who as head of the Justice Department’s Office of Legal Counsel under Mr. Bush argued that some of the initial orders went too far and forced them to be rolled back, said on Sunday that there were similarities. “But Bush’s legal directives were not as sloppy as Trump’s,” he said. “And Trump’s serial attacks on judges and the judiciary take us into new territory. The sloppiness and aggressiveness of the directives, combined with the attacks on judges, put extra pressure on judges to rule against Trump.”

An op-ed by Noah Feldman. It’s no surprise that President Donald Trump initiated a Twitter attack Saturday on federal judge James Robart for freezing the executive order on immigration from seven majority-Muslim countries. The ultimate fate of the order will depend on proceedings in the 9th Circuit Court of Appeals, which denied the government's emergency request to reinstate the ban, and possibly even the U.S. Supreme Court. But because judges issue rulings, not press releases, it’s also up to civil society and the news media to defend the judge and the rule of law from the president’s bluster.

An op-ed by Noah Feldman. Confirmation hearings for Judge Neil Gorsuch are likely to feature a somewhat offbeat topic: administrative law, and particularly a key issue known as the “Chevron doctrine.” Central to environmental law and all other forms of federal regulation, the doctrine, adopted by the U.S. Supreme Court in 1984 in a case involving the Chevron oil company, says the courts should defer to agencies’ interpretations of ambiguous laws. Dry as it may sound, the principle is in fact the subject of heated debate among scholars -- and last year, Gorsuch weighed in with a lengthy opinion proposing to abandon the prevailing approach, thus strengthening the judiciary and weakening the agencies. Democratic senators are likely to question him intensively about his views, which for the first time may make Chevron doctrine into a household word -- and a partisan flashpoint.