Media Mentions

An op-ed by Noah Feldman. Muslim girls can be required to participate in swimming classes alongside boys despite their parents’ religious objections, according to the European Court of Human Rights. The outcome would have been the opposite in most U.S. jurisdictions, which have emphasized students’ rights ever since Jehovah’s Witnesses were exempted from the Pledge of Allegiance during World War II. The decision made this week marks the very different situation in contemporary Europe, where children’s interests are contrasted with their parents’ rights, and the schools’ goal of “integration” is getting special weight amid a wave of Muslim immigration.

As we reported, the director of the Office of Government Ethics, Walter Shaub, announced at a press conference on Wednesday that President-elect Donald Trump’s “fix” to his ethics and emoluments clause problems didn’t fix anything...Laurence Tribe also sees this as thinly veiled intimidation. “For a member of Congress to make veiled threats to the federal ethics chief for publicly criticizing the President-elect’s plan to comply with the Constitution’s Emoluments Clause and to avoid ethical conflicts – a plan that Director Shaub of the Office of Government Ethics rightly slammed as meaningless – is profoundly disturbing,” said the legal scholar and litigator. “Such threats can only chill fully protected speech and expression of opinion that is vital to our republic. Nothing about the job description of the Director imposes a gag or compels him to keep his concerns to himself or to limit those concerns to purely internal government memos. Chaffetz has truly gone off the reservation here.”

Dear Betsy: Even students who’ve been accused of sexual assault deserve the chance to defend themselves. Betsy DeVos is President-elect Donald Trump’s pick for secretary of education...In an information vacuum, all sexual assault cases look the same. As Harvard Law School professors Jacob Gersen and Jeannie Suk Gersen declared in the Chronicle of Higher Education earlier this month, “In essence, the federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms.”

...you’d expect the Obama Department of Education to be doing whatever it could to nurture, support, and protect colleges and universities. But instead, it seems to be acting almost as if it were controlled by . . . a cabal of its enemies. For example, in the area of Title IX enforcement Obama’s Department of Education has taken a statute that simply reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” and turned it into an Orwellian nightmare of what Harvard law professors Jacob Gersen and Jeannie Suk call bureaucratic sex creep.”

At long last, Donald Trump on Wednesday unveiled his plan to separate himself from his business interests while president, something he previously promised would be oh-so simple to do at the same time he was finding reasons to delay taking any clear action on the matter. Based on what Trump shared Wednesday, the plan wasn’t worth the wait...“His elaborate-looking scheme constitutes at best a Potemkin trust, to coin a semi-Russian phrase,” Harvard law professor Laurence Tribe told Slate.

An op-ed by Noah Feldman. The world's most dangerous flashpoint got much more dangerous Thursday when China sent its lone aircraft carrier into the Taiwan Strait and Taiwan scrambled fighter jets in response. This is how accidental wars start: provocation and counterprovocation in an environment with too much uncertainty. The uncertainty arises from not knowing the Donald Trump administration’s answer to a pressing foreign policy question: Would the U.S. defend Taiwan from a Chinese attack?

An op-ed by Cass Sunstein. Republicans are putting a great deal of pressure on President-elect Donald Trump to fire Richard Cordray, director of the Consumer Financial Protection Bureau. He should resist that pressure. Any effort to discharge Cordray would be illegal -- and it might even precipitate something close to a constitutional crisis.

It didn’t take long after BuzzFeed leaked an intelligence dossier detailing shocking allegations of collusion between Russian officials and the Trump campaign (as well as claims that Russia has sexual blackmail against Donald Trump himself) for critics of the president-elect to start dropping the “t” word...But when I asked a few lawyers specializing in national security about the BuzzFeed memorandum, they mentioned that its contents — if true, which is a very big “if” indeed — could bring other laws into play. It’s much too early to speculate about actual indictments, but if the dossier is confirmed, there are a few statutes that would be worth examining. One, according to Harvard law professor and Lawfare co-founder Jack Goldsmith, is the Logan Act, an obscure 1799 law that prohibits citizens of the United States from negotiating with foreign governments and trying to influence their policies vis-a-vis a dispute with the United States...Many legal observers don’t take the Logan Act particularly seriously, however, given that it seems to rather clearly violate the First Amendment and would stand a good chance of being struck down should it even actually lead to a prosecution, according to Goldsmith and other legal observers

...A group of scientists and bioethicists is concerned with how one new reproduction technology in particular might make a future of designer babies far more relevant...“What does IVG change? It is really its combination with CRISPR gene editing,” said Glenn Cohen, a Harvard Law professor and one of the authors of a new editorial in Science Translational Medicine that warns IVG may be the bearer of a set of “vexing policy challenges” and ethical dilemmas. “Right now CRISPR is still very much in its infancy, but one could potentially imagine a future a long way off where it was much more sure fire at selecting traits.” IVG, he said, might allow you to very easily produce a large number of embryos, and CRISPR might allow you to then easily edit those eggs and simply select the most attractive genetic options prior to implantation. “It is a little like the difference between Michelangelo painting the sistine chapel, and someone trying to create a similar piece of art on their computer with Photoshop,” Cohen told Gizmodo.

An essay by Samuel Moyn. The foreign policy consequences of Donald Trump’s election are agonizingly unpredictable. As with any schoolyard braggart, Trump says so much that nobody can ever know which parts he might actually mean. Unlike the devil we knew, Trump defies any attempt to forecast his choices, and therefore to anticipate a response. But if progressives stick to a popular front strategy, uniting in a grand coalition allowing liberals and neoconservatives to define a more responsible approach to Trump’s foreign policy, they could miss the ripest opportunity they have had in a generation to indict the Democratic Party’s profound mistakes.

Sugar was in the dock at Harvard Law School this week, accused of a prime role in the twin epidemics of obesity and diabetes sweeping the country. Science journalist and author Gary Taubes ’77 made his case that sugar consumption — which has risen dramatically over the last century — drives metabolic dysfunction that makes people sick. The hour-long talk was sponsored by the Food Law and Policy Clinic and drawn from Taubes’ new book, “The Case Against Sugar.”

Staffers from Harvard Law School’s Immigration and Refugee Clinic clarified definitions of “sanctuary” spaces in an online seminar Wednesday, offering Harvard’s undocumented students individual legal consultation as President-elect Donald Trump prepares to take office. Philip L. Torrey, a Law School lecturer who led the seminar, said the label “sanctuary” could mean a number of things in practice, ranging from the physical prevention of immigration enforcement officials from entering a space to the guarantee that those officials have valid warrants before entering. “The term ‘sanctuary’ has no specific legal definition,” Torrey said...Torrey and fellow Law School lecturer Sabrineh Ardalan also briefed attendees on how to navigate immigration issues as Trump transitions to the White House.

Past comments by President-elect Donald Trump are prompting some to think that his administration may lessen enforcement of laws prohibiting bribery of foreign officials. The Foreign Corrupt Practices Act, enacted in 1977, generally prohibits paying bribes to foreign officials to assist in obtaining or retaining business. For the last five years, biopharmas have been in the cross-hairs of the Department of Justice and the Securities Exchange Commission, which jointly enforce the FCPA...What will Trump advocate once he is sworn in as president? Matthew Stephenson, a law professor at Harvard University, told me in an interview for my special report that he was more pessimistic than others. "I don’t expect much to change in the short term, but I am concerned about the mid- and long-term. There is a tremendous amount of uncertainty,” he said.

An op-ed by Noah Feldman. The U.S. Supreme Court took up this challenging policy question Wednesday: How much is a school district obligated to educate a disabled child? The justices will have to choose from a smorgasbord of options offered by the lower courts, the Department of Justice, and the parents and schools in the case. The choices range from just a little more than nothing to the same level of education available to other kids. The outcome will have major consequences for tens of thousands of students -- and for the schools where they study.

Well-known legal scholar, recognized constitutional law expert and member of the faculty at Harvard Law School, Professor Laurence Tribe, went on a Twitter rampage for the ages on Wednesday. It was all in response to President-elect Donald Trump’s major press conference at which his lawyer, Sheri Dillon, was tasked with explaining the plan devised by Trump’s legal team for how his businesses will be run while he is serving as president. Tribe even went on to tell LawNewz.com that “the whole phony setup would make President Trump a living, walking, talking, tweeting violation of the Emoluments Clause each time banks or funds linked to foreign sovereigns are allowed to take steps that Trump will necessarily know are enriching the total value of his family’s mega-business.”

President-elect Donald Trump’s announcement Wednesday that he’ll transfer management of his business empire to his sons — but will not divest the assets — won’t ease concerns about his conflicts of interest, say legal specialists...“It does not solve any of the problems,’’ Harvard Law School professor Laurence H. Tribe said of the plan. “It’s a complete ruse.”...Harvard’s Tribe, a constitutional law professor, said Trump’s trust plan still allows foreign governments to curry favor with the president and enhance his wealth, in violation of the Constitution’s emoluments clause. This is a provision that bars presidents from receiving funds from foreign governments. “Everyone in the world knows when they play golf at one of his courses or pay a lot of money at one of his hotels, that they are benefiting him and benefiting his brand,’’ Tribe said.

The director of the US Office of Government Ethics has criticised Donald Trump's plan to hand control of his business empire to his sons before his inauguration on 20 January..."As I listened, my jaw dropped. Trump's workaround is a totally fraudulent runaround," tweeted Professor Laurence Tribe of Harvard University, one of the leading constitutional lawyers in the US. "Trump's announced structure is cleverly designed to dazzle and deceive, but it solves none of the serious ethical or legal issues. Trump's lawyer would flunk constitutional law at any halfway decent law school. At least if the lawyer wasn't just joking."

President-elect Donald Trump’s strategy on addressing his conflicts of interest seemed to be to throw out as many bells and whistles as possible, sprinkle some remarks from highly compensated lawyers and hope he could muscle his way through concerns that he is setting up a scheme that will invite corruption and run afoul of the Constitution...His lawyer also claimed that the emoluments clause does not cover arm’s-length transactions. This is blatantly false. In a detailed legal memo prepared by Laurence Tribe, Richard Painter and Norman Eisen, they found: To start, the text supports this conclusion; since emoluments are properly defined as including “profit” from any employment, as well as “salary,” it is clear that even remuneration fairly earned in commerce can qualify...Tribe separately commented to me, “The steps he is taking constitute at best a Potemkin trust, to coin a phrase. He remains a walking, tweeting violation of the Emoluments Clause from the moment he takes office.”

An op-ed by Noah Feldman. In New York and nine other states, merchants are barred from charging credit-card purchasers a surcharge, but are allowed to offer discounts for paying in cash. The U.S. Supreme Court on Tuesday took up the fascinating question of whether this requirement violates the merchants’ freedom of speech. It’s a juicy constitutional question: Are prices subject to the First Amendment at all? And it sweetens the pot with an intellectual problem in law and economics: Given that we know customers react differently to surcharges and discounts, even when they’re economically equivalent, should the state be allowed to ban one and require the other?

An op-ed by Noah Feldman. U.S. law can reach American sex offenders abroad so long as they haven’t resettled in another country, according to a federal appeals court. The decision, issued last week, extends U.S. law beyond its borders through an expansive interpretation of Congress’s authority under the Constitution’s commerce clause. It bucks the U.S. Supreme Court’s recent trend of limiting laws’ reach abroad, at least in part because of the powerful desire to condemn sex with minors. But as a precedent, the decision will apply to other, more ordinary crimes committed by Americans abroad, with potentially troubling consequences.

President Obama will deliver his farewell address to the nation this evening before a room full of supporters in Chicago. We discuss a little of the Obama legacy and look ahead to tonight’s speech with two historians, “NewsHour” regular Michael Beschloss, and Annette Gordon-Reed of Harvard University..."This is a chance to cement his legacy and talk about the kinds of things that he wanted to do as president. And he is facing a situation where people might try to undo a good amount of that. So, I think this is a good way for him to sort of lay a template, perhaps, for historians later on, even though that’s almost an impossible thing to do. But I think it’s a way for him to talk about his legacy, to sort of say to the American people what was important to him, what he thinks he accomplished as president."