Media Mentions

An op-ed by Jeannie Suk Gersen. President Obama’s mantra for the past year has been that Congress is broken, so the executive will act. And now, as the stage is set for the new executive, it is dawning on Democrats that living by that sword may mean dying by it. A President can unilaterally revoke prior Presidents’ unilateral actions, and we may soon see just that, in response to Obama’s moves on immigration, climate change, and gun control. Among the myriad areas subject to upheaval is the President’s administration of Title IX, the 1972 law that prohibits schools that receive federal funding from discriminating “on the basis of sex.” The civil-rights statute has been the primary federal guarantee of equality in educational opportunity for male and female students.

An op-ed by Noah Feldman. The University of Kentucky is suing its own student newspaper to stop the publication of documents relating to a report of sexual assault and harassment. The case, which is expected to be resolved this month, pits federally guaranteed student privacy rights against the First Amendment and the public’s right to know. It also involves policy questions about how universities should handle sexual misconduct. Privacy for victims -- and for those who might be accused and then cleared -- is extremely important. But freedom of the press outweighs those interests, especially because universities are at the center of a significant struggle to determine the best way to deter and punish such cases.

Donald Trump's business dealings and his family's ongoing involvement in his finances will make the President-elect "a walking, talking violation of the Constitution" when he takes office, according to a legal expert. Professor Laurence Tribe, a constitutional law expert at Harvard University, claimed Mr Trump's involvement in business could cause conflicts of interest, in line with the US Constitution's "emoluments clause"...But Professor Tribe said the President-elect would need to go further and sell off all his business interests to remove himself of emoluments difficulties. "[Mr Trump] is a constant emolument magnet. He thinks of himself as a babe magnet, but he's an emoluments magnet," Professor Tribe added.

On Sept. 5, 2006, Facebook transformed from a technology platform into a media company. That was the day the social media site replaced its chronological list of friends’ updates with its algorithmic news feed...Facebook’s only chance to escape this kind of responsibility may be to open its News Feed to others, says Jonathan Zittrain, a computer science and law professor at Harvard University...Zittrain suggested third-parties build on top of the existing algorithm, offering the News Feed as a customizable stream that others modify to suit their audiences.

Lawrence Lessig, activist, Harvard law professor, and author of Republic, Lost: The Corruption of Equality and the Steps to End It (Twelve, 2015), and Walter Olson, senior fellow at Cato Institute’s Center for Constitutional Studies, preview their debate over the wisdom of convening another Constitutional Convention. Could it bypass the gridlock in Congress?

Newly elected Cook County State's Attorney Kim Foxx detailed her plans Monday for reshaping the second-largest prosecutor's office in the country, including creating a unit to target firearms trafficking and revamping the team that reviews potentially wrongful convictions....Foxx has turned to Harvard Law professor Ronald Sullivan Jr. to reorganize the office's conviction integrity unit, created by Alvarez in 2012. The conviction review unit Sullivan created and ran for the Brooklyn, N.Y., district attorney's office has an independent advisory panel staffed by outside attorneys that issues nonbinding recommendations on whether convictions should be dismissed. Sullivan could not be reached for comment Monday, but Foxx said he "will design a unit that fits for Chicago."

Main Street banks believe they've been unfairly swept up by the tsunami of regulation triggered by the 2008 Wall Street meltdown. But President-elect Donald Trump and his allies have signaled a desire to reverse rules that are seen as burdensome for community banks, freeing them up to give more loans...But Hal Scott, director of a Wall Street-funded nonprofit called the Committee on Capital Markets, complained that Dodd-Frank "lumps in all other banks" beneath that "super level" of regulation. Scott, a Harvard Law School professor, said there is "growing consensus that the regulatory burden should be relieved for small community banks."

A prominent Harvard University law professor is teaming with a California-based law firm to offer legal support for any members of the Electoral College seeking to oppose President-elect Donald Trump in violation of state law. Larry Lessig says his new effort, which he calls “The Electors Trust,” will provide free counsel to electors, provided by the midsize firm, Durie Tangri, whose partner Mark Lemley is a longtime associate of Lessig’s. More significantly, Lessig said, the Trust will offer a platform – with guaranteed anonymity – for electors to strategize about stopping Trump from taking the White House. It’s a platform, he said, that could help electors coordinate to determine whether they’ve gathered enough support to stop Trump from winning the presidency. “It makes no sense to be elector number five who comes out against Trump. But it might make sense to be elector 38,” Lessig said in a phone interview.

At the same time the government urges Americans to eat healthy foods, it heavily subsidizes farmers who produce corn and other crops used in junk foods, and invests little in those who grow fruits and vegetables. The result? A pound of fresh broccoli costs about $2 in any supermarket, while a calorie- and fat-filled cheeseburger is half that price in many fast-food restaurants. This system that makes healthy food expensive and junk food cheap should be fixed, said a panel of experts who gathered at Harvard Law School on Nov. 30...Bittman was joined by...Emily Broad Leib, assistant clinical professor of paw and director of the Food Law and Policy clinic...Leib expressed concern about a House bill that proposes cutting food stamp benefits by $40 billion. “This could be small compared to what we might see coming,” she said. “This program is a safety net for many people that otherwise wouldn’t be able to put food on the table.”

...The top law firms are making fewer and fewer partners, making it trickier for young lawyers to make it to the top. At the same time, there has been a big shift in the legal profession over the past decade, in which associates no longer see partnership at the firm where they started as the ultimate goal...It is every lawyer’s dream: a paid week off work with no access to a smartphone, learning from top professors at Harvard Law School...Best of all — client work is not allowed to get in the way, says Professor Scott Westfahl, the director of executive education at Harvard Law School, who runs the programme...“It’s just an extraordinary investment, the idea that you’re taking associates offline, letting them come together for a week of learning every year for four years — and putting them together with their peers from other offices lets them build relationships that will last for many years,” says Professor Westfahl.

An op-ed by Randall Kennedy. Black people have been struggling to free themselves from racist oppression throughout American history. They have revolted, fled, petitioned, boycotted, exposed abuses through journalism and propaganda, prayed in, stood up, and sat down. An iteration of black resistance that was begun in 2013 marches under the banner of Black Lives Matter...An area that has proven to be peculiarly resistant to racial reform is the administration of criminal justice, perhaps because it consists of literally millions of low-visibility, highly discretionary decisions that are not easily subject to effective regulation. Typically, however, courts, including the Supreme Court, have made no serious effort to supply such regulation. Instead, obtuse interpretations of the Fourth Amendment have permitted police to use race as a factor in traffic stops, leading to the notorious infraction of "driving while black."

A study by the University of Illinois at Urbana-Champaign offers a way to get more people to sign up for expedited security screening and save the government money: make PreCheck free for frequent fliers...Security expert Bruce Schneier has long criticized the enhanced post-9/11 security screenings as "security theater" that do not make anyone safer."I want PreCheck-style screenings for everyone," said Schneier, a fellow at Harvard University's Berkman Klein Center. He worries that giving PreCheck only to frequent travelers or those who pay creates a class divide — the poor get invasive screenings, while the wealthy are in the faster lines.

Donald Trump’s nominee for attorney general, who has a long history of hard-line opposition to marijuana, could unravel the burgeoning recreational marijuana industry across the country, including in Massachusetts. Senator Jeff Sessions, a former federal prosecutor and Alabama attorney general, has been taking on marijuana dealers since the 1970s...The tension between federal law and the law in states where voters have legalized marijuana for recreational use created a practical problem for the Obama administration, said Charles Fried, a former solicitor general of the United States and longtime Harvard Law School professor. The Obama administration has chosen to solve it through nonenforcement, he said. But “somebody who is indicted, prosecuted, and convicted has no defense by saying, ‘It’s legal on the ground in Colorado!’ Now you may have a hard time getting a jury to convict, and it may be extremely unpopular, and it may be a bad idea,” he continued, “but as a legal matter, it’s clear cut.”

On the campaign trail, education often took a backseat to issues like trade and immigration for Donald Trump. He offered few concrete details about his plans, which were often vague and even at odds with what any president has the power to do. Yet the tone of his campaign—and his rhetoric on issues ranging from minorities to climate change—has many educators and academics worried about the future of liberal arts and STEM (science, technology, engineering and math) education. “Donald Trump has shown a contempt for science, a willingness to play fast and loose with the very idea of truth and an absence of intellectual curiosity,” says Laurence Tribe, professor of constitutional law at Harvard Law School. “This leaves me with the sinking feeling that he will have a terribly destructive impact on the entire project of making excellent education broadly available.”

An op-ed by Noah Feldman. You never know what you’re going to get on a visit to Jerusalem. The latest addition to the Holy City is -- I kid you not -- a virtual-reality experience at the foot of the Western Wall. Tackiness aside, the virtual tour of an imaginatively reconstructed ancient Israelite temple does carry a worrisome message for the future of peace in the Middle East: The once-radical idea of rebuilding the temple on the site is gradually getting mainstreamed.

An op-ed by Noah Feldman. Amid rising Hindu nationalism, the Supreme Court of India has ordered theaters to play the national anthem before films and directed moviegoers to stand at attention -- no excuses. The Indian Constitution is a wonder of the world, but this decision undercuts free-speech and individual rights at a moment when the country can ill-afford it. The court, which has the final word in interpreting the constitution, can still reverse itself. And it should, because the court’s job is to protect rights, not to impose duties and obligations when the legislature has not done so.

Far from ending with President-elect Trump’s announcement that he will separate himself from the management of his business empire, the constitutional debate about the meaning of the Emoluments Clause — and whether Trump will be violating it — is likely just beginning...Professor Laurence Tribe, the author of the leading treatise on constitutional law, and others said the Emoluments Clause was more sweeping, and mandated a ban on such dealings without congressional approval. Painter now largely agrees, telling ProPublica that no fair market value test would apply to the sale of services (specifically including hotel rooms), and such a test would apply only to the sale of goods. The Trump Organization mostly sells services, such as hotel stays, golf memberships, branding deals and management services.

On Friday, the university announced a new procedure for considering the renaming of university buildings, along with an official reconsideration of the controversial decision last spring to keep the Calhoun name. A new — and final — verdict is expected early next year. That policy requires anyone calling for a renaming to submit a formal application, including a dossier of historical research justifying the renaming according to a set of general principles created by an independent 12-person committee named in August by the university’s president, Peter Salovey, in response to continuing furor over the Calhoun decision...“They did a very good job fleshing out the issues and creating guideposts on how to deal with a question that is probably going to come up again and again,” said Annette Gordon-Reed, a historian at Harvard Law School and a member of a committee that voted last year to scrap that school’s seal, which honored a family of 18th-century slave owners.

Laurence Tribe, Constitutional law scholar at Harvard University, talks with Rachel Maddow about the possibility that companies competing against Donald Trump's business while he is president could sue him for having an unfair advantage.

A constitutional law professor warned that the day Donald Trump takes the oath of office he will be breaking the law, calling the president-elect a “walking, talking violation of the Constitution,” due to his business dealings. Appearing on MSNBC’s Am Joy with host Joy Reid, Harvard law professor Laurence Tribe detailed the many ways Trump and his family’s continuing involvement with his business is expressly forbidden by the law, specifically citing the “emoluments clause” in the Constitution. “It’s called the emoluments clause and it basically says no officer of the United States can be on the receiving end of any kind of benefit, economic benefit, payment, gift, profit, whatever, from a foreign government or its corporations or agents,” Tribe explained before pointing to Trump’s kids having one foot in his administration and the other in Trump’s businesses. “In this case Donald Jr. or Ivanka or Eric — then there would be a close relationship that could never be disentangled by the American public.”

An op-ed by Lawrence Lessig. My friend and colleague Noah Feldman is angry that I would be so “cavalier” about “following the procedures … that shape our constitutional norms.” In my view, however, it is in understanding those procedures that we should be most careful not to be cavalier. I—along with many others—believe the electors were intended to be something more than mere cogs. That they instead were to exercise judgment in deciding how to cast their ballots. Noah disagrees with this conventional view. The college’s “purpose,” he tells us, “is simply to effectuate the results of the electoral system we have.” That certainly is the view among the commentators and pundits. But that claim needs more support if it is to dislodge the view of many scholars, including, for example, our colleague Larry Tribe (“electors are free to vote their conscience”) and the extensive analysis of Columbia Professor Richard Briffault.