Media Mentions

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.’”

An op-ed by Laurence Tribe and Mark Green. For those worried about corruption and cronyism, Donald Trump’s coming for-profit presidency will hardly “drain the swamp.” Rather, it will create a new one, albeit with large, gold-plated all caps letters branding it a TRUMP property. His recent late-night misdirection by tweet on a busy news day, calling off a planned press conference on potential conflicts of interest, was clever but predictable — and predictably wrong. His effort to combine public service and self-enrichment would be blatantly unethical, unprecedented and unconstitutional.

What will an anti-regulation, climate skeptic do as head of the Environmental Protection Agency? Environmentalists are bracing. But Scott Pruitt will also face limits if he tries to strip the agency of its power...Jody Freeman is the director of the environmental law program at Harvard Law. She also advised the Obama White House and is on the board at ConocoPhillips. She says EPA administrators get most of their power through setting program budgets and deciding which new programs to pursue or not pursue, and Pruitt would have wide discretion on enforcing environmental rules. JODY FREEMAN: And if he wants to slow down enforcement or treat the states more gently, be a little more lax, he can certainly try to do that.

Three of Donald Trump’s adult children attended a Wednesday meeting the president-elect convened with top Silicon Valley executives, prompting backlash from critics with questions about conflicts of interests...Laurence Tribe, a constitutional law professor at Harvard University, pointed out that mixing politics and business comes with inherent issues. “Next time one of those ‘children’ meets or talks with a Silicon Valley leader about a matter of interest to Trump's business empire, that leader will certainly know that he or she is dealing with a member of the President's inner circle of government power,” Tribe said.

VICE News is suing the FBI, demanding the bureau release records related to its curious disclosures, behind-the-scenes actions, and apparent leaks in the days leading up to the U.S. presidential election. The wide-ranging Freedom of Information Act lawsuit was filed Tuesday morning in conjunction with Ryan Shapiro, a doctoral candidate at MIT and research affiliate at the Berkman Klein Center for Internet & Society at Harvard University. Earlier this month, VICE News and Shapiro filed more than 50 FOIA requests with the FBI seeking documents about the bureau’s discussions regarding Donald Trump, along with other documents that would shed light on the FBI’s decision a week before the election to tweet newly posted records from a long-dormant Twitter account about Bill Clinton’s 2000 pardon of financier Marc Rich.

Lawyer Larry Lessig, who briefly ran for president in 2016, discusses why electors shouldn't vote for Donald Trump even though he handily won the electoral college.

Larry Lessig, a Harvard University constitutional law professor who made a brief run for the 2016 Democratic presidential nomination, claimed Tuesday that 20 Republican members of the Electoral College are considering voting against Donald Trump, a figure that would put anti-Trump activists more than halfway toward stalling Trump’s election. Lessig’s anti-Trump group, “Electors Trust,” has been offering pro bono legal counsel to Republican presidential electors considering ditching Trump and has been acting as a clearinghouse for electors to privately communicate their intentions. “Obviously, whether an elector ultimately votes his or her conscience will depend in part upon whether there are enough doing the same. We now believe there are more than half the number needed to change the result seriously considering making that vote,” Lessig said.

More than 40 liberal law professors sent a letter to President-elect Donald Trump on Tuesday, voicing “great concern” with his commitment to the nation’s constitutional system and opposing the nomination of Sen. Jeff Sessions, R-Alabama to be the next attorney general. The letter identified seven areas in which Trump has shown “complete ignorance or indifference toward constitutional values,”...Among the signers are...former federal judge Nancy Gertner of Harvard Law School...Most of the signers are board members or advisers to the liberal American Constitution Society, which posted the letter on its site Tuesday.

...In October, second-year Law students Pete Davis and Nate Szyman launched an initiative called “The Third Century Project.” It challenges the dominance of corporate law firms in shaping Law School students post-graduate plans and aims to create a “Harvard Law School centered on legal vocation-building in the public interest.” The first stage of the students’ project, called HLS 200, asks students and faculty to identify inspiring alumni, current legal challenges, and goals for the future. The Law School student government has committed to supporting the initiative as their official bicentennial activity, student government president Nino Monea said.

The website, Professorwatchlist.org, catalogs 200-some professors from universities across the U.S. who “advance leftist propaganda in the classroom,” the About page states. The list details professors’ alleged views on everything from abortion to the Holocaust, and was created by conservative group  Turning Point USA, which aims to spread conservative ideals to young activists. ... Mark Tushnet, a professor of law at Harvard Law School, echoed Douglas’ sentiments. “I doubt that this list as such will have any effect on what professors on the list do,” Tushnet said. “I certainly don’t intend to modify my teaching or scholarship as a result of being on it.”

From the moment Barack Obama was elected in 2008, he began to disappoint those who had believed in his message of change. ...Two days after the election, we sat down with five leading historians and political observers in the New Republic’s offices in New York City, overlooking Union Square. At the table were Annette Gordon-Reed of Harvard and Nell Painter of Princeton, two of America’s preeminent scholars on American history.