Media Mentions

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.”

Colorado’s Republican secretary of state is brushing aside a federal ruling that questioned his authority to remove presidential electors who defy the statewide popular vote, setting up a potential legal clash less than two days before the Electoral College meets to choose the president...Lemley is part of Electors Trust, a group of prominent constitutional lawyers — including Harvard University’s Larry Lessig — advising electors who wish to break from Trump. They celebrated Friday’s appeals court decision as the first evidence ever issued by a federal court to suggest electors may be constitutionally free to vote for whoever they want...Laurence Tribe, who isn’t officially affiliated with the group but has lent support, agreed that the 10th Circuit ruling should take precedence over Colorado’s law. “This is a federal constitutional issue. The text of Article II and the 12th Amendment, and the reasoning of the U.S. Court of Appeals for the 10th Circuit, carry far more weight than the state court's opinion here,” he said.

The strict anti-bribery law that United States authorities could apply against resources giant Rio Tinto was once attacked by Donald Trump as a "horrible" rule that "should be changed". Rio has self-reported to US law enforcement agencies a $US10.5 million payment to a Guinean government-linked consultant who five years ago helped smooth the passage of an iron ore project in West Africa...Harvard Law School professor Matthew Stephenson said Mr Trump might seek to work with the Republican-controlled Congress to weaken the anti-bribery law or "place substantially less emphasis on FCPA enforcement".

Shortly before the election, President-elect Donald Trump laid out a 100-day plan articulating his administration’s top priorities. Of the 18 commitments, one concrete pledge hit very close to Boston’s borders. “Cancel all federal funding to sanctuary cities.” Somerville—like its neighbor, Cambridge—is considered a “sanctuary city,” a catch-all term for cities that do not cooperate with federal efforts to detain undocumented immigrants...“The federal government cannot use its taxing and spending powers to coerce states and local governments to enact, administer, or enforce federal law,” Harvard Law School professor Phil Torrey told Boston.com Torrey, whose background is in immigration law, says it would be “difficult, if not impossible” for Trump to force sanctuary cities to enforce federal immigration efforts at the risk of losing large amounts of federal funding.

An op-ed by Laurence Tribe. When Donald Trump swears at the inauguration that he will “faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States”, he will be committing a violation of constitutional magnitude. The US constitution flatly prohibits any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”.

Up to five years of tax returns could be required to run for president in Massachusetts in 2020 if state Sen. Mike Barrett has anything to do with it...Larry Tribe, a professor of constitutional law at Harvard University, told The Minuteman Barrett's efforts are a step forward in financial and political transparency. "Senator Mike Barrett's tax-return-release bill is just the kind of effort through which the Commonwealth can set an example of good government for the rest of the nation to follow," Tribe said in an email. "I congratulate Mike on his creativity and on the care he's taking to meet all federal constitutional requirements."

An op-ed by Randall Kennedy. Donald J. Trump will be the next president of the United States. That is sobering because he is glaringly unsuited for any significant public office, much less the most important in our country and indeed the world. Nothing about his pre-candidacy record recommends him. To the contrary, it is so lacking in relevant achievement, so marred by embarrassment, that many onlookers thought that his run for the presidency was nothing more than a publicity stunt. Then his campaign itself was so repulsive, so saturated with bigotries of various sorts, so ostentatiously crass, so glaringly demagogic, that it prompted many leading figures in his own party to repudiate him.

During the campaign, Donald Trump railed against powerful corporations and promised to prevent blockbuster mergers like the proposed $85.4 billion deal between AT&T and Time Warner. That was then. Since the election, Mr. Trump has been decidedly less interested in constraining the power of big companies, especially those in the telecommunications industry...The Senate would have to confirm the Democratic appointee as it would Mr. Trump’s choices. Democrats ought to pick a strong consumer advocate who will use the position to speak out forcefully for more competition in the industry and common-sense approaches like net neutrality rules. Susan Crawford, of Harvard Law School, and Tim Wu, of Columbia Law School, are two experts who specialize in telecommunication issues and fit that bill. Proper oversight, equitable access to services and fair pricing in telecommunications ought to be bipartisan concerns.

Anniversaries should be happier than that on December 11th, marking China’s 15 years as a member of the World Trade Organisation (WTO). On that day, China expected to be unshackled from its legal label as a “non-market economy” and attain “market-economy status”. In the event, America and the European Union refused to give it the nod. On December 12th the Chinese reacted: see you in court...The full scope of what they can do is still legally uncertain. Mark Wu, an assistant professor at Harvard Law School, thinks that “what we’re seeing now is the opening salvo of a long series of litigations.” The underlying difficulty is that China’s particular type of capitalism makes it difficult to fit into a binary view of a market, or non-market, economy. “That makes it really hard for the WTO to adjudicate this type of issue,” says Mr Wu.

...After writing several best-selling books that examined unsung mavericks who changed the way people think about and operate in baseball and on Wall Street by using data to help sidestep such cognitive blind spots, author Michael Lewis set his sights on the two men who first identified the flaws embedded in our thinking. In his new book, “The Undoing Project,” Lewis explores the colorful lives of Daniel Kahneman and the late Amos Tversky, who were sometimes called the “Lennon and McCartney of psychology.”...Lewis said the early spark for the book, whose title came from the pair’s effort to “undo the false view of human nature” as well as the unfinished work left after they ended their collaboration, came from Harvard Law School’s Cass Sunstein ’75, J.D. ’78, and Richard Thaler, a behavioral economist at the University of Chicago. In their New Yorker review of Lewis’ 2003 blockbuster “Moneyball,” about the then-emerging use of data analytics to exploit “market inefficiencies” in the way baseball scouts evaluated talent, Sunstein and Thaler pointed Lewis in the direction of Kahneman and Tversky’s research, noting that it was the intellectual foundation for such analysis.

...Harvard University constitutional law professor Lawrence Lessig earlier this week suggested as many as 20 Republican electors were considering changing their minds about Trump, though that report has not been confirmed...Many constitutional lawyers question whether those laws are constitutionally enforceable. However, the effort to allow the electors to vote their conscience was dealt a blow earlier this week when a Colorado judge ruled that electors in that state were not allowed to switch their votes. Given the hurdles, the anti-Trump revolt is unlikely to succeed, admits Larry Tribe, another professor at Harvard Law School. But Tribe insists that electors “have a responsibility to the country and the Constitution, in extreme enough situations.” “And I think this is a pretty extreme situation,” he said.

...we asked two foreign-born, radical observers of law and civil society – Ugo Mattei and Roberto Unger – to play Tocqueville’s role today...Roberto Unger is the Brazilian professor of law at Harvard University who once served as Obama’s teacher and mentor. Not unlike Cornel West, he later turned against his former pupil, becoming one of the president’s most vociferous critics. Unger identifies himself as a “man of the left” but he also views Trump as the “lesser evil” in this election. He believes that the hypocrisies exposed by Trump’s election will reveal the fundamental weakness of political parties in the U.S. Now, he says, progressives will be forced to return to higher goals: they can no longer be satisfied by minor amendments and material redistribution.

An op-ed by Noah Feldman. One of the most remarkable things about voting where I do, in Cambridge, Massachusetts, is that no one asks you for identification: Who you are is based on trust. But that charming civic experience may not be long for this world. Although several voter ID provisions were struck down before the 2016 election, an appeals court has now upheld Virginia’s law -- and in essence provided a road map for how states can require ID without violating the Voting Rights Act or the Constitution.

An op-ed by Noah Feldman. The Cherokee Nation, one of the largest registered Native American tribes in the U.S., has officially decided to recognize same-sex marriage. The tribe, as a separate sovereign, isn’t bound by the U.S. Supreme Court’s landmark 2015 gay-marriage decision, Obergefell v. Hodges. But its judgment relies in part on evidence of historical recognition of same-sex relationships among Cherokees -- a basis for contemporary gay rights that is different from, and in some ways deeper than, the equality and dignity rationales that the Supreme Court used.

When a company reorganizes itself through a bankruptcy, is it the same company? And if so, is it liable for alleged wrongdoing committed by the previous version of itself? These are questions raised by General Motors’ efforts to dodge hundreds of lawsuits related to a potentially fatal ignition-switch flaw in millions of its older sedans...Mark Roe, a Harvard Law School professor who specializes in corporate bankruptcy, says GM’s use of the 363 Sale process doesn’t conform to the reason why the doctrine exists. “The GM sale was not a true third-party sale,” Roe told Salon. “It was General Motors selling to a reorganized version of itself. The factories were the same, the employees were the same. There isn’t the same reason to protect a third-party buyer.”

The Army made a stunning admission earlier this month when it announced its decision to require a deeper environmental review and more extensive consultation before deciding whether to grant an easement for the Dakota Access Pipeline. In its consultations with the Standing Rock Sioux about the pipeline crossing underneath Lake Oahe within a half mile of the reservation, the U.S. Army Corps of Engineers purposefully withheld key studies that could have helped the tribe evaluate the risks...Kristen Carpenter, Oneida Indian Nation visiting professor of law at Harvard Law School, was amazed to learn that the government had denied these documents to the tribe. “To me that’s stunning,” she says. “People have been camped out and facing violence for months, when this information has been available all along. It’s the very information that would have allowed them to participate more substantially. The tribes didn’t have enough information at their hands to be fully informed.”

...As Democrats steel themselves for the day next month when the White House door will slam on their backs, some of the country’s more liberal state attorneys general have vowed to use their power to check and balance Mr. Trump’s Washington...For the moment, the precise shape of Trump-branded targets is hard to make out. At the annual meeting of the National Association of Attorneys General in Fort Lauderdale, Fla., two weeks ago, bipartisan bewilderment about the president-elect’s true intentions abounded...“People are coming up to me and saying, ‘What’s going to happen?’” said James E. Tierney, a former attorney general of Maine, who ran a program studying attorneys general at Columbia Law School. Mr. Tierney, a Democrat, now lectures at Harvard Law School. “There’s a lot of eye-rolling down here, in both parties, like, ‘Oh my God.’”