Media Mentions

Facebook chief executive Mark Zuckerberg took to the social network’s website over the weekend to dispute allegations that “fake news” had tilted the election for Republican Donald Trump. “More than 99% of what people see is authentic,” he wrote, adding it was “extremely unlikely hoaxes changed the outcome of this election.”...Some civil-liberties experts said it was dangerous to push Facebook to take on a greater editorial role. “If we wouldn’t trust the government to curate all of what we read, why would we ever think that Facebook or any one company should do it?” said Jonathan Zittrain, faculty director at the Berkman Klein Center for Internet and Society at Harvard.

Mexico may have reason to fear Donald Trump’s tough talk on trade...Even the smallest of these percentages represent a massive volume of trade. But while a dislocation from the U.S. export market would be highly damaging the Chinese economy, it could be catastrophic for Mexico. “It’s a question of your alternatives to negotiating,” said Daniel Shapiro, director of the Harvard International Negotiation Program and author of “Negotiating the Nonnegotiable.”

An op-ed by Samuel Moyn. The international human rights system, with its diverse global movements, is epoch-making, allowing stigma to be applied to errant states on matters of crucial global concern. But promoting its exclusive relevance in the face of injustice, as if the alternative were apathy or despair, is simply not going to cut it. In fact, the election of Donald Trump furnishes an opportunity to transcend the naïve celebration and apocalyptic criticism of international human rights in the name of balance about their true importance.

An op-ed by Cass Sunstein. Republicans, including President-elect Donald Trump, have some eminently sensible proposals for regulatory reform. But the party is also pressing two terrible ideas, which seem to have a significant chance of being enacted in 2017. The irony is that both of them would be damaging to the Trump administration itself.

An op-ed by Noah Feldman. There are two truths about the Electoral College: It ought to be abolished, and it never will be. Calls for changing the constitutional election system abound now that Hillary Clinton has won the popular vote and lost the electoral vote, as Al Gore did in 2000. But it turns out that the same Constitution that enshrines the Electoral College effectively protects the small states from an amendment they don’t want. The problem goes back to the nation's founding -- and short of abolishing the states as effective sovereigns, it basically can’t be fixed.

Although President-Elect Donald Trump was clear about the North American Free Trade Agreement on the campaign trail — he wanted major changes — how the issue unfolds is far from certain...“In practice, it’s going to be extremely hard because once a deal is done … all sorts of relationships are built,” said Elaine Bernard, executive director of the Labor and Worklife Program at Harvard Law School. “Unwinding all that is difficult.” What’s more, Bernard said, about 90 percent of the provisions of NAFTA were contained in the Canada-United States Free Trade Agreement that preceded it. “Which one is he going to undo?” she said.

The Obama administration urged companies on Tuesday to make millions of devices safe from hacking, underscoring the risks posed by an increasingly bewildering array of internet-connected products permeating daily life, covering everything from fitness trackers to computers in automobiles. In a report obtained by The Associated Press, the Homeland Security Department described runaway security problems with devices that have been made internet-capable in recent years...To prevent more attacks, the government must increase security regulations for “what are now critical and life-threatening technologies,” according to Bruce Schneier, a fellow at the Berkman Center for Internet and Society at Harvard Law School and a well-known cybersecurity expert. “It’s no longer a question of if, it’s a question of when,” Schneier said in prepared remarks for the hearing.

Q: Can the Electoral College elect Hillary Clinton on Dec. 19? A: Yes, it may be constitutionally possible; but no, it will not happen, according to election experts....“Presidential Electors are theoretically free to vote as their consciences dictate, something the founders anticipated Electors would indeed do under Hamilton’s Electoral College invention,” Laurence Tribe, a professor of constitutional law at Harvard Law School, told us via email. Tribe said the constitutionality of imposing a fine on a “faithless elector” is “open to doubt, and it is even more doubtful that a court would compel any Elector to be ‘faithful’ to the State’s winner-take-all outcome.

State Medicaid programs – including Rhode Island – fail to provide enough access to cures for hepatitis C. That’s the conclusion of a new report from Harvard Law School’s Center for Health Law and Policy Innovation and the National Viral Hepatitis Roundtable. The authors say restricting treatment is illegal. New hepatitis C medications are expensive. That’s why state Medicaid programs like Rhode Island’s restrict access. Patients must have a high level of liver damage. And be abstinent from drugs and alcohol. And only specialists can prescribe. All of that is illegal, says Robert Greenwald with the Center for Health Law and Policy Innovation at Harvard Law School. “Medicaid programs have an obligation under the law to provide medically necessary care. And that cost alone cannot be a justification for access to care.”

Regulations to fight climate change likely will be casualties of the incoming Trump administration, but environmental experts taking stock of the changing American political landscape said that work in the field will continue elsewhere and that a broad-based rollback of U.S. environmental protection will prove easier said than done...“Trump could unilaterally withdraw from the Paris Agreement, renouncing U.S. leadership on international climate negotiations. And he could try to rescind or weaken some important regulations, like the Clean Power Plan,” said Jody Freeman, the Archibald Cox Professor of Law and director of Harvard Law School’s Environmental Law Program. “But any effort to fully unravel the substantial and meaningful regulatory initiatives of the last eight years will be long, complicated, and difficult, and in the end likely only partial because of the significant legal, political, and practical barriers to doing so.”

An op-ed by Charles Fried. We have a direct democracy: Senators, representatives and members of the Electoral College are all elected directly by the people. They do not, however, elect the president directly. This is a feature of the kind of government we have chosen from the beginning in which the states are important subsidiary (in some instances, primary) units of government.

An op-ed by Noah Feldman. Donald Trump’s comments on “60 Minutes” suggest that the president-elect has assimilated a version of the traditional moderate Republican position on abortion rights: call for the repeal of Roe v. Wade, while hoping that in practice, abortions will still be available somehow. The logic of this position is purely political. At least some of the Republican base wants abortion outlawed, but lots of people who voted for Trump would be extremely upset if they or a woman they cared about couldn’t actually get an abortion.

An op-ed by Noah Feldman. Four thousand: That’s the number of political appointees President-elect Donald Trump’s transition team will have to pick in the next few months for the government to continue running effectively after President Barack Obama leaves office. The challenge is great for any new administration; it’s especially daunting for a political outsider whose staff, according to the Wall Street Journal, was surprised to hear last week that it would have to replace everyone in the West Wing.

An op-ed by Cass Sunstein. Democrats and progressives, you lost. You can fight President-elect Donald Trump, or you can join him. There will be time enough for fighting, but for now, I suggest that you join him -- at least on some of his high priority items. As it turns out, several of them are your priorities too.

An op-ed by Bradley Pough [`18]. The Democratic Party is in shambles. Come the new year, Republicans will control the presidency, Congress, and the Supreme Court soon after. They will control 69 of the 99 state legislative chambers and at least 34 governor's mansions. As the Democrats pick up the pieces from last week's debacle, few can look to 2018 for much solace, understanding that the midterm elections will likely carry even deeper losses. Although 2020 offers a glimmer of hope to a party sorely lacking bright spots, much of that hope is tempered by the reality of an aging Democratic bench without clear ideological leadership.

Michael Klarman, Harvard Law Professor and author of The Framers’ Coup: The Making of the United States Constitution, and Patrick Spero, Librarian at the American Philosophical Society and editor of The American Revolution Reborn, discuss their new books, putting a human face on America’s Framers and reassessing the clashes that helped define the Founding era. Tom Donnelly, senior fellow in constitutional studies at the National Constitution Center, moderated the discussion on Monday, November 14.

Massachusetts' attorney general is launching a new hotline to report harassment and intimidation of minority groups...Harmann Singh [`19], a Cambridge, Massachusetts resident, told necn that he experienced a racial incident over the weekend when a man came up to him in a store on Massachusetts Avenue and heckled him for his appearance. Singh is a Sikh but heard a clerk at a counter say, "there is a (expletive) Muslim." “I’m a Sikh, it’s the fifth largest religion in the world,” Singh recalled. “He continued to ask, ‘are you from Morocco,’ he kept guessing.” He believes the incident was just another racist feeling emboldened by Donald Trump’s presidential win. “There are a lot of feelings of not feeling safe in our own country,” Singh said. Singh, who’s also a Harvard Law student, fears more discrimination is likely. He says what made his most recent encounter more painful, is that no one spoke up or came to his defense.

Over the past two years, state Medicaid programs have done a better job of disclosing information about access to hepatitis C medicines and are also making progress in reducing or eliminating restrictions that pose a barrier to treatment, according to a new preliminary analysis...“We’re making progress, but many state Medicaid programs still limit access due to cost concerns and are dragging their feet,” said Robert Greenwald, who heads the Center for Health Law and Policy Innovation of Harvard Law School, which conducted the analysis and has filed lawsuits against two state programs over restrictions.

Cities and towns can constitutionally refuse to actively help President-elect Donald Trump in his move to deport millions of illegal immigrants — but the new administration could pull millions in federal funding if municipalities don’t oblige, according to legal analysts. “Most federal grant statutes would allow the president to withdraw funds if cities don’t comply,” said Mark Tushnet, a constitutional law professor at Harvard Law School. “You start out assuming the president can do it.”

[Correction from yesterday's news@law] With the election over, the next big question is: What next? To find out, we reached out to a collection of historians, hoping to get their thoughts on whether The Donald calls to mind, in one way or another, any of the nation’s previous leaders. From Trump’s policies to his rhetoric to his unbridled ambition — did anything about the man remind them of presidents past? And what might that tell us about the future?...“I’d compare Trump to Andrew Jackson because of both men’s populist rhetoric and xenophobic appeals. I also see shades of Richard Nixon in Trump’s ambition and temperament, as revealed on the campaign trail. Fortunately, campaigning for office and governing in a constitutional democracy are distinct enterprises.” Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law and professor of history at Harvard University

After President-elect Donald J. Trump promised to “drain the swamp” that he sees in the nation’s capital, his millions of supporters are expecting vast changes in the sprawling federal bureaucracy, and conservative activists are drooling at the chance to remake, resize or reduce the reach of government...“He doesn’t possess the executive power to reorganize the government at whim,” said Jody Freeman, a law professor at Harvard University who served in the first Obama administration. “There are some minor things presidents can do, in terms of creating new offices in cabinet agencies. But the notion that he can single-handedly abolish agencies is fanciful.”