Media Mentions

U.S. Supreme Court Justice Stephen Breyer has given a talk — entirely in French — about the artistry of courtroom sketches. Breyer spoke in French on Monday during the hour-long forum at the French Cultural Center in Boston. The event was a dialogue with artist Noëlle Herrenschmidt, who draws courtroom scenes in France. Holger Spamann, a Harvard Law School professor who attended the talk, says Breyer also made a case for the professionalism of judges and the importance of their detachment from politics.

Put the records back on the internet. That’s the demand made in a lawsuit filed today against the U.S. Department of Agriculture (USDA) by an animal law expert at Harvard University, together with the People for the Ethical Treatment of Animals (PETA) and several other animal welfare groups. The plaintiffs allege that USDA violated the federal Freedom of Information Act (FOIA) earlier this month when it removed thousands of animal welfare inspection reports and other records from a publicly accessible website. “Our lawsuit seeks to compel the USDA to reinstate the records, which it had no right to remove from its website in the first place,” said Delcianna Winders, currently the Academic Fellow of the Harvard Animal Law & Policy Program, in a statement. “The government should not be in the business of hiding animal abusers and lawbreakers from public scrutiny."

Shortly after Thursday’s appeals court decision blocking his travel ban, President Trump vowed to fight on. “SEE YOU IN COURT,” he wrote on Twitter. But which court? Here is a look at Mr. Trump’s options...Richard J. Lazarus, a law professor at Harvard, said the justices should take a different approach in this case if the administration files an emergency application, recalling that the court heard arguments in very short order when the Nixon administration in 1971 unsuccessfully sought to block The New York Times and The Washington Post from publishing a secret history of the Vietnam War. “The court should receive briefs from both sides, hear oral argument, deliberate among themselves in person and then decide,” Professor Lazarus said. “They can do so quickly, as they have done in the past, for example in the Pentagon Papers case.”

When online crowdfunding sites like Kickstarter and GoFundMe debuted, people hoping to invent and sell a better bottle opener, those in need of help with medical bills and all sorts of personal would-be fundraisers talked about the concept in grand, world-changing ways. This, they said, was a disruptive, potentially transformative financial development. A new website aims to mash up that kind of popular Internet fundraising with legal work, hoping to turn legal cases into publicly funded — and backed — social causes...Third-party litigation finance — such as crowdsourcing — is a relatively new field, one that has emerged within the past decade, said Bruce Hay, a Harvard law professor who specializes in procedures and ethics. In the past three years, Hay said, he has seen some of his students graduate and become litigation financiers focused on corporate cases, not public-interest law and nonprofit causes. Regulators and courts have been generally accepting of the practice, so long as firewalls are established to keep the financiers out of decisions lawyers must make, Hay said. Before such funding practices, lawyers sometimes took out bank loans to finance cases, Hay said.

...Over the past couple of years, a small number of people have been sneaking across the border at Manitoba from the United States and then filing for asylum, Canadian Border Service Agency statistics show. But since the fall, refugee workers in Winnipeg say, there has been a noticeable surge...On Wednesday, the immigration and refugee clinical program at Harvard Law School issued a report stating that Mr. Trump’s executive orders on immigration made the United States “not a safe country of asylum” for people fleeing persecution and violence.

“Hidden Figures” was the big winner at the 48th NAACP Image Awards...Special honors were presented to Harvard Law School professor Charles J. Ogletree Jr. and Lonnie G. Bunch III, the director of the National Museum of African American History and Culture in Washington, who won the chairman’s award and the president’s award, respectively. Both received standing ovations. “I’m very honored to receive this amazing award, thank you very much,” said Ogletree

Donald Trump has long talked about reining in the Environmental Protection Agency (EPA), which is in charge of enforcing federal laws on air and water pollution. It’s a top priority for his supporters in the fossil-fuel industry...By the way, it’s unlikely that Pruitt can tear up the EPA’s Endangerment Finding, the 2009 analysis establishing that greenhouse gases were a threat and therefore need to be regulated, without Congress. “That has a voluminous scientific foundation behind it,” said Jody Freeman, a Harvard law professor and former Obama climate advisor. “The Trump administration couldn’t just come in and say nope, no more endangerment! There’s almost no chance that would be upheld [in court].” Plus, in a weird twist, if the EPA’s authority were repealed, that could open the door for common law suits against polluters in the states — a potential nightmare for companies.

Are we in a constitutional crisis?...Luckily, the legal literature has developed other, arguably clearer, categories for talking about heated conflict like this. In 2004, Mark Tushnet, now at Harvard Law, introduced the concept of "constitutional hardball": when political actors are clearly acting within their legal and institutional limits, but are violating past practices or norms in a way that feels unprecedented and provides advantage to their side...“In the current spat, if there is hardball going on, it takes the form of White House people bypassing the established systems for vetting executive orders,” Tushnet told me. “Not submitting them to career people in the Office of Legal Counsel, but sending it apparently only to the political, shadow person they sent over there. They can say, ‘We did send it to OLC,’ but the person who got it is not the kind of person who’d ordinarily be used to vet these issues.”

An op-ed by Noah Feldman. U.S. President Donald Trump’s phone call with Chinese President Xi Jinping and the weekend visit of Japanese Prime Minister Shinzo Abe are important reminders of a basic reality: While we Americans obsess over the constitutionality of the president’s executive order on immigration, the rest of the world keeps on going. Measured by number of people it affects, foreign policy outranks domestic affairs. If Trump manages to create diplomatic chaos in Asia, history won’t pay much attention to the rest of his presidency.

An op-ed by Martha Minow and Robert Post. Last Saturday, President Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In mocking Judge James L. Robart, the federal district court judge who stayed the president’s executive order banning travel for individuals from seven predominantly Muslim countries, Trump risks making an enemy of the law and the Constitution. He then expressed contempt for the deliberations of the three-member appellate court convened to review Robart’s order, calling the legal argument “disgraceful,” and remarking that a “bad high school student would understand this” — before the appellate panel unanimously left Robart’s order in place. Now Trump is attacking anyone who calls him to account — senators, scientists, the civil service, the media, and the Democratic Party, to name a few.

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”.