Media Mentions

“No matter whether the country follows the flag or not, the Supreme Court follows the election returns,” wrote the Chicago humorist and author Finley Peter Dunne in 1901. More than a century later, many legal scholars and historians take Dunne’s famous quip—which identified a relationship between Supreme Court decisions and popular opinion—as gospel...However, it may be important to distinguish between the ability and the willingness of justices to make sweeping decisions that challenge the status quo. Michael Klarman, a legal historian and professor at Harvard Law School, told the HPR that in a majority of cases, “[justices] have a lack of inclination to do things that are dramatically contrary to public opinion.” Klarman attributes this reluctance to a variety of reasons.

A letter by fellow Delcianna Winders. The Department of Agriculture’s stunning assault on transparency by removing thousands of animal-welfare-related records from its website (“Agriculture Dept. Removes Animal-Welfare Data From Website,” The Chronicle, February 6) leaves all of us in the dark about how animals across the country are being treated. As Harvard Law professor and former head of the federal government’s Office of Information and Regulatory Affairs Cass Sunstein has noted, “the Animal Welfare Act is designed partly to ensure publicity about the treatment of animals.” That purpose has now been thwarted, leaving consumers and state and local governments unable to find out if, for example, those seeking to sell dogs and cats locally have records of abuse, or circuses wanting to pitch their tents in town have histories of dangerous animal attacks or escapes.

Even before Donald Trump entered the White House, many were predicting federal courts would serve as an important check on his use of presidential power, particularly given his aggressive style and a GOP-led Congress that has so far been loath to confront him. But few expected the first constitutional clash would occur in Trump’s third week on the job...Jack Goldsmith, a national security lawyer in the Bush administration and professor at Harvard Law School, predicted Trump’s tweets “will certainly backfire” against him. “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 significant deference to the president’s broad delegated powers from Congress and to the president’s broad discretion in foreign relations,” Goldsmith wrote Monday on the Lawfare blog.

An op-ed by Noah Feldman. A law passed Monday by Israel’s Knesset potentially puts the country in violation of international law by retroactively legalizing 4,000 homes built by Jewish settlers on private Palestinian land. But remarkably, the possibility of war-crimes charges isn’t the most worrisome thing about the law. What’s more upsetting is that the Knesset passed a law that the country’s own attorney general had already determined was unconstitutional and in violation of 40 years of Israeli judicial rulings. That the law passed -- with the support of Prime Minister Benjamin Netanyahu’s Likud government -- raises serious concerns about Israel’s direction as a rule of law society.

Martha Minow recently announced that she will step down as the dean of Harvard Law School at the end of this academic year. She began her tenure in 2008, in the midst of the financial crisis. In the intervening years, the law school faced serious questions of diversity and racism. Minow ends her tenure this year, as parts of the legal profession is feeling a new ripple of energy around the Presidency of Donald Trump.

A group of lawyers on Tuesday filed a motion in federal court in New York asking a judge to force the Trump administration to disclose a list of any individuals detained by his ‘extreme vetting’ Executive Order. The motion also seeks the return of any individuals who were removed from the United States as a result of the order. The lawyers, in court paperwork filed Tuesday afternoon, accuse the Trump administration of failing to comply with prior judicial orders issued in the case..."If the allegations in this legal memorandum — allegations that are shocking but seem entirely plausible on their face and appear to be supported by the affidavits and other materials referenced in the memo — are indeed true, then the President and those acting under his direction have a great deal to answer for and are skirting ever closer to outright defiance of lawful judicial orders or perhaps even crossing the line. Needless to say, such defiance is powerful grist for the awesome mill of impeachment,” Harvard Law Professor Laurence Tribe told LawNewz.com.

A letter by Ryan Cohen `17 and more than 100 HLS students. We are writing to commend U.S. Sens. John McCain (R-Ariz.), Lindsey Graham (R-S.C.), and Benjamin Sasse (R-Neb.) for their leadership in these troubling times (“Trump’s ban of refugees, travel from seven Muslim nations sparks chaos, protests,” Jan. 29). As a diverse group of students with political views on both sides of the aisle, we are heartened to see elected officials who are willing to stand up for what is right, irrespective of politics. Decisions that impact many individual lives as well as our national security should not be made lightly, and should account for the rights and values upon which our nation is built. We hope that other Senate Republicans follow these senators’ lead by speaking out in the face of irresponsibility and injustice, and thereby faithfully serving the nation that has elected them to represent it.

...The 45th president, Donald Trump, might pose the gravest threat to the constitutional order since the 37th. Of course, he might not...“Civil society had a huge and unprecedented impact during the Bush administration,” [Jack] Goldsmith told me. The networks that constrained Bush are still there, and Trump has put them on red alert. “Every single thing he does will be scrutinized with an uncharitable eye,” Goldsmith said. “That’s true of most presidents, but it’s true to an even greater degree with Trump.”

The costumed characters at George Washington’s gracious estate here are used to handling all manner of awkward queries, whether about 18th-century privies or the first president’s teeth. So when a visitor recently asked an African-American re-enactor in a full skirt and head scarf if she knew Ona Judge, the woman didn’t miss a beat. Judge’s escape from the presidential residence in Philadelphia in 1796 had been “a great embarrassment to General and Lady Washington,” the woman said, before offering her own view of the matter...“He’s a much more mythic figure than Jefferson,” said Annette Gordon-Reed, the author of “The Hemingses of Monticello” and a Harvard professor. “Many people want to see him as perfect in some way.”But his determined pursuit of Judge, she said, as much as his will freeing his slaves, reflects the basic mind-set of slave owners. “It’s saying, ‘Whatever I might think about slavery in the abstract, I should be able to do what I want with my property,’” she said.

When it comes to the study of the Constitution, there is no one better to talk to than Harvard Law School professor Laurence Tribe...Listen to the podcast to find out why I called Tribe the Beyonce of constitutional law professors, hear what he thinks Democrats should do about the nomination of Neil Gorsuch to the high court and what he expects the justices to do if presented with the legal excesses of Trump.

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."