Media Mentions

An op-ed by Cass Sunstein. Well, no one saw that coming. “Rogue One,” the new stand-alone Star Wars movie, is the best since the beloved original trilogy. With a new tale, it’s much better, and far fresher, than last year’s fun but nostalgic “The Force Awakens.” The surprise is fitting, for here’s a little secret about Star Wars: Its narrative arc wasn’t fully planned out in advance. Some of the most important plot points came to George Lucas, author of the first six episodes, awfully late. At the early stages, he had no clue that Darth Vader would turn out to be Luke Skywalker’s father. And Luke and Leia as twins? That was a late inspiration -- an ingenious (if also creepy) way of resolving the romantic triangle involving Luke, Leia and Han.

Hillary Clinton’s top advisers never publicly backed an effort by Democrats on the Electoral College to block Donald Trump’s election. When it failed on Monday, one aide mocked it as an unserious “coup” attempt. But a batch of correspondence obtained by POLITICO shows members of Clinton’s inner circle — including senior aides Jake Sullivan and Jennifer Palmieri — were in touch for weeks with one of the effort’s organizers as they mounted their ill-fated strategy. And despite repeated requests for guidance, Clinton’s team did not wave them off...Lawrence Lessig, a Harvard University constitutional law professor deeply involved in recruiting Republicans to rebel against Trump, said he sensed a Clinton team that was undecided about “to what extent they should be encouraging this.” “I imagine that in the end, nobody was sure they could survive the political blowback if you became president because you flipped the college,” he said.

An op-ed by Noah Feldman. This became the year of the obscure, unlitigated constitutional clause. The First and 14th Amendments usually hog all the glory, and each did get a few big moments over the last year. But much more important were ignored and unheralded provisions like the "advice and consent" clause, the Electoral College clauses, and most improbably, the emoluments clause, which since the election has featured prominently as one of the only defenses against conflicts of interest in the Trump White House.

In the last twenty years, capital punishment has fallen out of favor in the United States. Death sentences have dropped from 315 a year in the mid-1990s to 49 in 2015. Executions have declined from 98 in 1999 to 28 in 2015. The number of states with the death penalty has fallen to 31. And polls indicate that opposition to capital punishment (fueled in part by DNA evidence of wrongful convictions, a dramatic drop in crime rates, and the isolation of the United States among western democracies in retaining the death penalty) is rising. Carol Steiker (a professor of law at Harvard University) and Jordan Steiker (a professor of law at the University of Texas) believe that the death penalty deserves to die. In Courting Death, the authors trace the judicial history of capital punishment, starting with the Supreme Court’s declaration that the death penalty is capricious and arbitrary in Furman v. Georgia in 1972, and its decision to lift its de facto moratorium four years later in Gregg v. Georgia. And the Steikers deliver an extraordinarily well-documented, forceful and ferocious assault on state and federal administration of capital punishment since then. Courting Death is, almost certainly, the best book on this subject.

An op-ed by Hal Scott. Under the Trump Administration we can expect that there will be many changes at the Securities and Exchange Commission. One important area that has gone largely ignored and is ripe for reform is the system of “unelected directors” for public companies. The Committee on Capital Markets Regulation—a policy group with executives from across the financial sector and leading academics—recently studied how boards of directors of public companies respond to unfavorable votes by their shareholders. The Committee’s startling discovery is that, in 85% of cases where a director does not receive a majority of shareholder votes, the director will continue to serve on the board for at least two more years.

In 1981, the Louisiana Legislature passed a law that forbade public schools to teach evolution without also instructing students on “creation science.” The Creationism Act was challenged in court for breaching the constitutional wall between church and state, in a case that reached the Supreme Court in 1986. For seven justices, the decision involved a simple constitutional question. They saw the law as an effort to force religious belief into the science curriculum, and they struck it down. Justice Antonin Scalia dissented...When his colleagues reached results that matched their politics, he derided them with the phrase “any stick to beat a dog,” according to another former clerk, Bruce Hay, now a law professor at Harvard.

A Portland judge ruled this year that a double murderer could not be executed for his crimes. Michael Davis suffers from an intellectual disability, Multnomah County Circuit Judge Michael Greenlick said. His IQ was measured at 61 or 62. And executing people with intellectual disabilities is unconstitutional, the U.S. Supreme Court ruled in 2002, because it amounts to cruel and unusual punishment. Despite that ruling, according to a report released Tuesday, most of the inmates on Oregon's death row are much like Davis. Two-thirds suffer from impaired mental and emotional capacity, Harvard Law School's Fair Punishment Project found.

An op-ed by Noah Feldman. The story of the Supreme Court in 2016 can be summarized in a statistic: It’s been 311 days since Justice Antonin Scalia died on Feb. 13, and his seat remains unfilled. That’s not the longest Supreme Court vacancy in the modern era, but it’s about to enter second place -- and it will become the longest if Donald Trump’s nominee isn’t confirmed before the end of March. This striking fact will be front and center when the history of the court in 2016 is written. But what really matters isn’t the length of the vacancy. It’s the election in the middle of it. The Republican Senate changed the rules of confirmation drastically by refusing even to consider Judge Merrick Garland’s nomination. And against the odds, it paid off for them...More recently, the confirmation process for Robert Bork in 1987 had epochal consequences. For the first time, judicial philosophy was the focus. No one disputed Bork’s intelligence or qualifications. Instead liberals, including law professors like my colleague Laurence Tribe, criticized Bork’s conservatism as opposition to fundamental rights...As it turned out, that also meant that Tribe’s generational successor in that role, Cass Sunstein...also had little chance of being nominated, despite being much more centrist than Tribe and just as qualified in his own right. The rules of the game had changed.

...It is stories like these that propelled the New Mexico legislature to approve a state constitutional amendment to reform the use of bail for defendants awaiting trial. The amendment became law after winning the support of 87 percent of voters in this year's election. The state thus joined an increasing number of U.S. jurisdictions that have begun to implement risk-based systems of pre-trial detention as a potentially fairer and more effective alternative to traditional money bail...Six states — Colorado, Hawaii, Nevada, New Jersey, Vermont and West Virginia — recently passed legislation to establish or expand pre-trial service agencies to administer conditions for release such as monthly phone calls, drug testing and electronic monitoring, according to a report by Harvard Law School's Criminal Justice Policy Program.

...In recent years, civil rights groups have taken cities to court to compel changes to their operation of so-called debtors' prisons, where those who cannot afford to pay fines are jailed until their debts are paid off. The practice was first barred under federal law in 1833. In 1983, the Supreme Court ruled that the act of imprisoning someone unable to settle their debt unconstitutional. Yet lawsuits and a federal investigation into policing and court practices in Ferguson following the death of Michael Brown shed light on how municipal courts locked up poor residents who couldn't pay off their debts as a way to generate revenue...."One thing that has been revealed over and over again in the Ferguson investigation and these lawsuits is that the worst practices tend to arise when courts and other officials perceive a financial necessity in funding their operation through fees and fines," says Larry Schwartztol, executive director of Harvard University's Criminal Justice Policy Program. "That creates conflicts of interest and distorts the justice system."

After eight years of feeling “like an outcast” as a Christian, David Cox has been walking a lot lighter the past few weeks.Given an election where more evangelical Americans voted for thrice-divorced Donald Trump than they did for church-going George W. Bush, Mr. Cox has witnessed a major mind-set shift among many fellow Evangelicals – from trepidation, even fear, to hope – a sense, he says, of “being accepted again.”...But the battles between religious conservatives and the LGBT community show how quickly the terms of the fight have changed. North Carolina Gov. Pat McCrory (R) lost reelection this year partly because of his support for a bill that nullified significant protections for the LGBT community. “Ten years ago, who would have thought a politician would get into trouble for taking the position [Governor McCrory] did? And that’s a significant fact: It’s an indication of how far the battle line has moved into the territory of religious conservatives,” says Harvard University law professor Mark Tushnet, author of “Why the Constitution Matters.”

On Monday, the 538 members of the Electoral College met in their respective states to cast votes to confirm Donald Trump as the next president of the United States. But this year, the presidential candidate who won the popular vote by a significant margin did not win the Electoral College, raising old questions about a system that’s usually taken for granted..Lawrence Lessig, Former Presidential Candidate: Our goal is to let the electors exercise their judgment. The Electoral College was made for this election, precisely.

An op-ed by Wendy Jacobs, Robert Bordone, and Hrafnhildur Bragadottir. Economic growth and success depend on innovative and resourceful management of natural resources. In Israel and Palestine, among the world’s most arid regions, where high population growth strains natural resources, finding ways to cooperate around water quality and quantity issues is imperative. Cooperation is essential for public health and safety from untreated sewage and agricultural runoff and to meet everyone’s increasing needs for safe water. Water quality and quantity depends on cooperation precisely because water flows without regard to political boundaries.

An op-ed by Cass Sunstein. I have coauthored a lot of academic essays, but finally, I’ve produced something that everyone absolutely loves. Wow. Just wow. In a recent paper, Harvard law fellow Meirav Furth-Matzkin and I explore this question: Do people’s views about policies shift after they learn that majorities support them? Psychologists call it “social proof”: If you find out that most people like a new product, you’re more likely to buy it. Evidence also suggests that for drug use, energy consumption, and tax compliance, people’s behavior shifts as a result of learning what most other people do. But are policy judgments similarly malleable? Yes. Across a wide range of issues, a lot more people will support a policy if they think that the majority supports it.

As he does with considerable regularity, Donald Trump has elevated the eyebrows of the foreign policy establishment with his practice of undergoing intelligence briefings only once a week on average, instead of daily. Now his team says that he is getting the President's Daily Brief three times a week, along with daily briefings from his appointee for national security adviser...Jack Goldsmith, an avid consumer of the process when he was in the Bush administration, stresses that, "It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch." Former CIA Director George Tenet says that, "Virtually every day you would hear something about a possible impending threat that would scare you to death." This, writes Goldsmith, captures "the attitude of every person I knew who regularly read the threat matrix." Every person.

An op-ed by Noah Feldman. The fall of Aleppo at the close of 2016 signals an especially depressing future for the civil war, the region, and the vast number of refugees within Syria and beyond. For all practical purposes, the end of this battle means that the Syrian dictatorship has, with Russian help, won its war for survival. However, there is no clear path for the Assad regime to wipe out the last of the rebels.So fighting will continue, and a rump Syrian Sunni statelet will persist. And because displaced Sunnis will remain deeply wary of going home to places now controlled by the hostile regime, the long war's refugee problem may become permanent. That's no small matter. In scope it dwarfs the Palestinian refugee crises of 1948 or 1967.

An op-ed by Noah Feldman. As things stand, Comet Ping Pong, the Washington restaurant falsely smeared as a hub for child sex trafficking in the Pizzagate mess, doesn’t have much in the way of a legal remedy. It could sue the anonymous conspiracy theory purveyors for libel, but even if it can find them, they probably don’t have any money to recover, and the damage to the restaurant’s reputation is already done. In Europe, however, things might be different. The European Union recognizes a “right to be forgotten” on the internet, which under some conditions allows posts to be removed or blocked from search engines. Extending that kind of right to the American victims of demonstrably false news stories might actually help victims like Comet Ping Pong, who’ve been tagged with a falsehood that otherwise just won’t go away.

As Donald Trump continues to announce administration roles, environmental experts and advocates are sounding the alarm over what they say are "extreme" selections that will put the government at odds with science and the health of the Earth..."You look at that set up and it's not a recipe for optimism," said Jody Freeman, a former counselor for energy and climate change in the Obama White House and director of Harvard's Environmental Law Program. "I think there's this undercurrent of threatening the legitimacy of climate science and I think that's very dangerous."

...In his new book The Framers’ Coup, Michael J. Klarman explains how this brief, geographically isolated, and seemingly thwarted uprising fundamentally shaped American governance. The Bancroft Prize-winning legal historian and Kirkland & Ellis professor of law writes, “Shays’s Rebellion played a critical role in the creation of the Constitution.”

Do people behave differently when they think they are being watched?...Jon Penney was nearing the end of a fellowship at Harvard Law School’s Berkman Klein Center for Internet & Society in 2013, and he realized that Snowden’s disclosures presented an opportunity to study their effect on Americans’ online behavior...“The fact that you won’t do things, that you will self-censor, are the worst effects of pervasive surveillance,” reiterates security expert Bruce Schneier, a fellow at the Berkman...Bemis professor of international law and of computer science Jonathan Zittrain, faculty chair of the Berkman Klein Center, worries that the ubiquity of privacy threats has led to apathy. When a hacker released former Secretary of State Colin Powell’s private assessments of the two leading presidential candidates prior to the recent election, “I was surprised at how little sympathy there was for his situation, how it was treated as any other document dump,” Zittrain explains.

Continuing years of long-shot efforts to reform the American electoral system, Harvard Law School professor Lawrence Lessig said Tuesday that at least 20 Republican members of the Electoral College may not cast their votes for President-elect Donald Trump. Since Donald Trump’s upset victory in the 2016 presidential election, Lessig, who briefly ran for the Democratic presidential nomination, and his anti-Trump group, "Electors Trust," have been working to offer legal advice to members of the Electoral College who are considering voting for a candidate that did not win the popular vote in their state...Law School professor Michael J. Klarman wrote in an email that he finds it unlikely that electors will actually vote against Trump, citing the personal consequences and logistical difficulties as barriers to flipping votes. “People are picked as electors because of their partisan reliability. The personal consequences—including death threats, I suspect, and certainly the end of their political careers—would be enormous,” Klarman wrote. “The system was intentionally designed to make it difficult to coordinate among the electors and to enforce any agreement among them.”