Media Mentions

In the first few months of Donald J. Trump’s presidency, if recent history is any guide, intelligence officials will meet to discuss a terrorism suspect living abroad. This suspect might become the next target for the nation’s not-so-secret drone force. Or maybe, Mr. Trump’s advisers could decide, he is worth trying to capture....Alex Whiting, a Harvard Law School professor and former war crimes prosecutor, said much has changed since 2002, when Justice Department lawyers accepted C.I.A. assurances that there would be no long-term consequences for prisoners. “Evidence showing that the techniques employed by U.S. officials after 9/11 resulted in lasting psychological trauma will make it much more difficult for future lawyers to sanction these techniques as not amounting to torture,” he said.

An article by David E. White Jr. `17. Winslow Homer (1836–1910) remains one of the most acclaimed American artists of the 19th Century. Although producing noteworthy works as an illustrator, oil and watercolor painter, Homer’s artistic skill is just one part of his illustrious place in history. At a time when it was virtually unthinkable, Homer painted black subjects, and he did so frequently. Moreover, Homer endowed his black subjects with an unmistakable sense of agency, beauty, and personhood—humanistic characteristics conspicuously absent from other works of the era featuring black subjects. Sea Garden, Bahamas (1885) represents Homer’s admirable effort to exhibit blacks as possessing citizenship in a global community, and such an effort, in the face of abject dehumanization, constitutes an act of restorative justice.

An op-ed by Susan Crawford. Those who urge progressive tech policy have no more ideas than anyone about how the surprise results of the 2016 election will affect the issues about which they care the most. But in one area, I see reason for hope. Donald Trump and his colleagues are reportedly warming to the idea of an infrastructure bank, although we don’t have much information about how that bank would operate. We do know that we don’t want the “third world” of today’s LaGuardia Airport — a talking point on which Trump and Vice President Joe Biden are in heroic agreement. I have some specific suggestions for how that bank (or a system of regional or state infrastructure banks) could genuinely drive economic growth in the US.

An op-ed by Carol Steiker and Jordan Steiker. Even as the United States remains the only Western democracy that executes its citizens, the Supreme Court has exempted certain categories of our most vulnerable individuals from execution, including those with intellectual disability. Texas, however, routinely fails to enforce this protection. An upcoming case gives the court the opportunity to bring Texas in line with constitutional requirements.

“This could be one of the most unrestrained governments that we’ve seen in this country in who knows how long,” Ryan Shapiro warned. Shapiro has been described as a “FOIA superhero” — one of his many monikers. The punk-turned-transparency advocate has filed thousands of Freedom of Information Acts requests and sued major government agencies over their refusals to abide by transparency laws. Now he has his sights set on the impending administration of President-elect Donald Trump...When he is not filing FOIA requests, writing his dissertation for MIT or listening to hardcore punk, Shapiro is also a research affiliate at Harvard University’s Berkman Klein Center for Internet & Society.

An op-ed by Alyson Warhit `17. Dear Ivanka, You don’t know me, but last year I passed you on Fifth Avenue outside of Trump Tower. I was on the way to my job and you were presumably on the way to yours. I had the impulse to stop you and talk with you, woman to woman, about the role you were playing in your father’s campaign. I wanted to plead with you to denounce your father’s hateful rhetoric and to honor the Jewish values that you adopted upon your conversion. I wanted to implore you to use your newfound public platform for good. But instead, I kept walking. I told myself that I shouldn’t hound a complete stranger on the street to tell her things she probably already knows. I assumed your relationship with your father’s campaign was complicated and in due time you would say that a ban on Muslims entering the country was certainly not in line with your values as an American or as a Jew. I knew that you would condemn the way your father talked about immigrants, women, veterans and the disabled. She’ll come around, I told myself.

Law professor Mark V. Tushnet ’67 landed on a “watchlist” of liberal professors created by the conservative nonprofit organization Turning Point USA last week. According to the group’s website, the goal of the list is to “expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom.” Turning Point USA aims to instill conservative principles such as support of free markets and limited government in college students...Tushnet said he was unperturbed by his inclusion on the list. “It’s not a big deal,” he said. “It comes with the territory.”

Constitutional lawyers and White House ethics counsellors from Democratic and Republican administrations have warned Donald Trump his presidency might be blocked by the electoral college if he does not give up ownership of at least some of his business empire....Harvard constitutional law professor Laurence Tribe said in an email that the “electors who are to cast their votes for president on 19 December not as automatons but in light of constitutional constraints and principles cannot in good conscience vote for Donald Trump as president of the United States unless he fully divests himself of economic interests dependent on the fortunes, for good or ill, of the private Trump empire”.

An op-ed by Noah Feldman. Donald Trump is inheriting a more powerful presidency than any of his predecessors. And if history is any guide, he will seek to expand the power of the office. But how will he do it? One clue lies in noticing how the personalities of the last two presidents were reflected in their techniques of expansion. Barack Obama’s administration took a very different route to its expansion of executive authority than did George W. Bush’s -- and Trump’s will probably be different still.

An op-ed by Noah Feldman. In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins -- at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing. The rise of fake news therefore poses a serious challenge to our basic ideas about the First Amendment. Much of the debate in recent weeks has focused on social media and search engines. But whether the market for ideas is failing is more fundamental than whether Facebook or Google can be blamed for algorithms that promote and spread false stories.

The Foreign Emoluments clause of the U.S. Constitution — you might have skipped over it in social studies — says that no person holding any office of profit or trust can receive gifts from foreign powers. The idea was to prevent meddling in U.S. policy by other nations. Some scholars [including Laurence Tribe] argue it doesn't apply to the president, but presidents have certainly acted as if it does. And many scholars say it and statutes like it are a mine field for the future Trump Presidency.

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.”