Media Mentions

As President-elect Donald Trump prepares to take office in January, the legal community has begun to ponder and prepare for the changes the incoming administration may make...Adrian Vermeule ’90, J.D. ’93, the Ralph S. Tyler Jr. Professor of Constitutional Law at HLS, sees two possible prospects for administrative law under Trump. One involves what he called “bipartisan retrenchment.”...Four major signposts during the first 100 days will show whether the Trump administration will transform executive authority or not, said Cass Sunstein, the Robert Walmsley University Professor at Harvard. First, how does the Trump administration handle ostensibly independent regulatory commissions such as the Security and Exchange Commission or the Federal Reserve?...With the executive branch’s role leading the trends in America’s criminal justice system and criminal justice reform, the effect that Trump’s presidency will have in this realm, given that his positions on a number of issues are either unformed or shifting, is still unknown, said criminal law professor Andrew Crespo.

An op-ed by Lawrence Lessig. Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions  — most important, the electors themselves.

...What is an adequate solution for the dark and persistent threat of sexual violence on campus? And what should colleges and universities expect from a very different administration, headed by a president who has himself been accused of sexual assault?...But the Obama approach has its critics. Harvard Law professors Jeannie Suk and Jacob Gersen say it resulted in a “sex bureaucracy,” placing more and more ordinary behavior under federal oversight. And feminist legal theorist Janet Halley, their colleague who has contested the OCR's process in the Harvard Law Review, describes the “Dear Colleague” letter as a case of “administrative overreach.” Halley, who has participated in sexual-violence cases at Harvard, has had concerns about their fairness from the beginning. She took pains to say that she cares deeply about sexual assault, but she worries about an overcorrection, prompted by OCR, that moves universities from ignoring the rights of accusers to trampling on those of the accused.

Members of the Electoral College should not make Donald Trump the next president unless he sells his companies and puts the proceeds in a blind trust, according to the top ethics lawyers for the last two presidents...Eisen’s conclusions are shared by Harvard Law Professor Larry Tribe, one of the nation’s preeminent constitutional scholars. Tribe told ThinkProgress that, after extensive research, he concluded that “Trump’s ongoing business dealings around the world would make him the recipient of constitutionally prohibited ‘Emoluments’ from ‘any King, Prince, or foreign State’ — in the original sense of payments and not necessarily presents or gifts — from the very moment he takes the oath.” The only solution would be to divest completely from his businesses. Failing that, Tribe elaborated on the consequences:

President-elect Donald J. Trump has vowed to dismantle many of the signature policies put in place by the Obama administration to fight the effects of climate change...Under the control of the new administration, the office could slow President Obama’s latest regulatory initiatives by repeatedly sending them back for additional work. “It has been a brake on agency regulation throughout its lifetime,” said Jody Freeman, a professor at Harvard Law School and an expert on environmental regulation. “Some presidents have used it as more of a brake than others.”

President-elect Donald Trump signaled he has no intention to investigate or prosecute his campaign opponent, Hillary Clinton, over her use of private e-mail as secretary of state or her family’s foundation after he’s inaugurated in January..."The power is there, no question," Harvard Law School professor Charles Fried said in an interview. "It’s in the president. The attorney general works for the president." Fried served as U.S. solicitor general, the government’s top courtroom lawyer, during President Ronald Reagan’s second term. "I rather think it’s a good idea that we don’t have the business of pursuing the previous, defeated administration," Fried said.

An obscure line in the Constitution has become a rallying point for some legal experts and critics of Donald Trump, who fear the president-elect has little intention of making a clean break between his business interests and his new White House role...Trump’s determination to cling to his global empire “creates an ongoing risk that foreign individuals and interests will confer commercial benefits on hotels, golf courses, or other businesses” connected to him, argued Laurence Tribe, a constitutional law professor at Harvard University. The greatest worry, according to Tribe, would be that those benefits might induce a President Trump to make or influence decisions “to the disadvantage of national interests” and in favor of his own. “Trump can’t receive any direct payment of any kind from a foreign government, including a fee for services,” argued Noah Feldman, another professor at Harvard and an expert on constitutional law, in a column for Bloomberg View.

An op-ed by Carol Steiker and Jordan Steiker. California’s decision on Nov. 8 to reject Proposition 62 came as no surprise to those of us who study capital punishment. No jurisdiction in human history has ever permanently abolished the death penalty via plebiscite. The reason is simple: referenda ask voters to respond at the level of symbolism, and voters rarely resist abstract appeals to “law and order.” If citizens confront the death penalty in concrete context, however, they’re willing to end it.

An op-ed by Noah Feldman. In a case that could eventually affect the balance of legislatures across the country, a federal court in Wisconsin has for the first time struck down a partisan gerrymander. The U.S. Supreme Court has previously declined to regulate such party-based districting, but this time may well be different. The lower court gave a simple, clear rule for determining whether districting is designed to disadvantage one party systematically. And the growing disparity between Republican and Democratic-controlled state legislatures gives the justices -- especially Anthony Kennedy -- very good reason to intervene.

Despite telling Hillary Clinton that she’d “be in jail” if he became president and egging on his crowds to chant “Lock her up!” it appears that Donald Trump isn’t going to pursue charges against their former Democratic rival...“Under the laws and Justice Department regulations governing federal prosecution, a President Trump would not have legal authority to direct the Attorney General to appoint a special prosecutor to ‘look into’ Hillary Clinton’s email situation or the Clinton Foundation or anything else,” explained Laurence Tribe, professor of constitutional law at Harvard Law School, in an email to Fortune Magazine after the second presidential debate. “That’s not within a president’s power.”

A Harvard Law School visiting professor says he was stumped this week when he received a postcard full of virulently anti-Semitic rhetoric that seems to have been mailed to him all the way from England. The note, written in black ink, was sent to professor Sanford Levinson’s Cambridge office, he said. It also said, “We’re going to drain the swamp,” at the law school, a reference to a slogan of president-elect Donald Trump’s campaign. “It certainly is as hostile as it could be. But I don’t know what to make of it,” said Levinson, 75, in a telephone interview. “It was a card apparently mailed from the [United Kingdom], and, you know, it’s a bit odd that it was mailed to me here at Harvard.”

President-elect Donald Trump will come into power next year with the authority to redefine his predecessor’s ambitious and divisive legacy on climate and energy policy. Just as President Barack Obama has used regulations and executive actions to try and make the U.S. a world leader in cutting planet-warming emissions across much of the nation’s economy—especially targeting the coal industry—Trump can largely act alone to define his own agenda. “I really do think there will be some kind of reversal of Obama-era policies, but there are legal, political, and practical constraints on how far the Trump administration can go,” said Jody Freeman, the director of Harvard University’s environmental law and policy program, in an interview with The Daily Signal.

An op-ed by Cass Sunstein. Many Republicans hope, and many Democrats fear, that Donald Trump's administration will close or shrink a variety of federal agencies and offices. Both the hope and the fear are justified -- even without a supermajority in the Senate, there's a lot Republicans can do to restrict the actions of the executive branch. Let’s start with what Trump can't do: Acting on his own, could he disband an agency or department -- say, the Department of Energy? Absolutely not. He would need Congress for that, and almost certainly 60 votes (and it’s not going to get close to that). But his administration could work to cut staff, if only by refusing to fill vacancies, and it could certainly work with Congress to reduce appropriations.

An op-ed by Noah Feldman. President-elect Donald Trump is poised to violate the foreign emoluments clause of the Constitution, at least according to the chief ethics lawyer of the George W. Bush administration. The idea is that when foreign officials stay in a Trump International Hotel to ingratiate themselves with the president, they’ll be giving him an emolument -- that is, a form of payment -- in violation of Article 1, Section 9, Clause 8 of the Constitution. And the Washington Post recently reported that Trump’s Washington hotel actively solicited diplomats with a reception that included a tour of a 6,300-square-foot suite that goes for $20,000 a night. This suggestion prompts three questions, none of which I could have answered without research: What the heck is the foreign emoluments clause? Does it cover Trump’s conduct? And if it does, who, if anyone, can bring a case in court to do anything about it?

An op-ed by Derecka Purnell `17. I named my son, who was born just days before the election, after Marcus Garvey, a West Indian revolutionary most celebrated for leading the “Back to Africa” movement in the 1920s. Garvey believed that by returning to the motherland, black people, who were oppressed in the United States, would have a greater chance at liberation. I admire Garvey and understand that perspective, and I know that black people today face many similar injustices to the ones he was reacting to. But, in the wake of the election of Donald Trump to the presidency, I don’t want or plan to go anywhere: I’ve decided to stay here and fight as a political organizer, the same way I have for the past several years.

The Electoral College polarized Americans from its inception. Created by the framers of the Constitution during the 1787 Constitutional Convention in Philadelphia, the College was put forth as a way to give citizens the opportunity to vote in presidential elections, with the added safeguard of a group of knowledgeable electors with final say on who would ultimately lead the country, another limit on the burgeoning nation’s democratic ideals..."[Southerners] wanted slaves to count the same as anyone else, and some northerners thought slaves shouldn’t be counted at all because they were treated as property rather than as people," says author Michael Klarman, a professor at Harvard Law School. In his recently released book, The Framers’ Coup, Klarman discusses how each framer’s interests came into play while creating the document that would one day rule the country. “One of two biggest divisions at the Philadelphia convention was over how slaves would count in purposes of apportioning the House of Representatives," he explains. The issue vexed and divided the founders, presenting what James Madison, a slave owner, called a “difficulty…of a serious nature."

An op-ed by Winston Shi `19. It is Nov. 22, 2016, and the newly minted Senior Counselor to Donald Trump is angry. Even if Asians are navigating America fairly, Steve Bannon doesn’t like the fact that there are so many Asian CEOs in Silicon Valley. “A country is more than an economy,” he explained. “We’re a civic society.” Apparently Asians still tear apart the social fabric of this country if we do too well. It is Nov. 22, 2016, and Harvard is about to break for Thanksgiving. And for many people at Harvard, there seems to be awfully little to be thankful for. But let’s just remember that Donald Trump won the election because a lot of white Americans don’t think there’s very much to be thankful for too.

An op-ed by Delcianna Winders, fellow. On the centennial of San Francisco native son Jack London's death, it’s worth reflecting on his legacy for animals. Most known for his writings about animals in the wild, London also cared deeply about their captive counterparts. Shortly before his death, London, having observed — and been appalled by — circus training methods, wrote from Glen Ellen that “behind ninety-nine of every hundred trained-animal” acts lies “cold-blooded, conscious, deliberate cruelty and torment. … Cruelty, as a fine art, has attained its perfect flower in the trained-animal world.” He urged “all humans” to “inform themselves” of the “inevitable and eternal cruelty” inherent in animal acts, and to walk out during animal performances. “Show the management” that animal acts “are unpopular,” and they will stop offering them, London promised. And he was right.

The increasing dominance of Republicans inside statehouses across the nation has spurred talk that a constitutional convention — the very meeting that crafted the US Constitution — could be more than just a Hail Mary thrown to conservatives. Conservative groups and Republican lawmakers have been planning for the possibility for years, although it picked up steam three years ago after a group of state lawmakers met at George Washington’s Mount Vernon estate, just outside Washington...Under the current Constitution, if they could get enough states to approve opening a convention, any changes made in the convention would still have to be approved by at least 38 states — the three-fourths majority of states. But they could also rewrite the rules entirely — like the original framers of the Constitution did in 1787. Mike Klarman, Kirkland and Ellis professor of law at Harvard Law School and a constitutional historian, notes that the delegates to the Constitutional Convention in 1787 had rules they had agreed on and were only supposed to tinker with the existing Articles of Confederation.

President Barack Obama will award Chicago’s legendary Newton Minow a Presidential Medal of Freedom on Tuesday, coming full circle from when Minow met him as a law student spending a summer at his Loop law firm...He is the former Federal Communications Commission chairman who famously called television a “vast wasteland” in a 1961 speech about broadcasting and the public interest. “He found a path that dealt always with mass communications as a way to enhance democracy,” Martha, one of Minow’s three daughters, told me on Monday.

A commentary by David E. White, Jr. `17. Sometime around 1903, an unknown artist framed this map from the U.S. Census in 1900 with gray cardstock matting and superimposed a new title, “Extent of the Negro Problem: Social Conditions, United States Census of 1900, Composition and Distribution of Population.” This re-imagination of chief geographer Henry Gannett’s illustration of the population density of black Americans offers a cartographic diagnosis of an endemic disease: poor social conditions in the South, chiefly caused by Jim Crow’s relegation of black Americans to less than full citizenship despite the recent passage of the Thirteenth, Fourteenth, and Fifteenth Amendments during Reconstruction. History proves that en masse migration to the North and West, popularly known as the Great Migration, emerged as the preferred course of treatment for such a debilitating disease.