Media Mentions

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.”

An op-ed by Noah Feldman. Only two presidents have had to deal with private lawsuits while in office. One was John Kennedy, who settled a suit involving a car crash that happened during his campaign. The other was Bill Clinton, sued by Paula Jones for making sexual advances toward her when he was governor of Arkansas. President-elect Donald Trump is involved in 75 pending lawsuits. That’s a problem -- potentially a serious one.

An op-ed by Noah Feldman. Vice President-elect Mike Pence has told evangelical leader James Dobson that the next administration will reverse President Barack Obama’s contraceptive mandate rules and transgender bathroom guidance -- both of which it can do without Congress. If Pence speaks for President-elect Donald Trump, both decisions would have major implications for cases now before the U.S. Supreme Court.

Dr. Lawrence Lessig is more than just another academic with a keen interest in Iceland. He has also been following Iceland’s experiment with a constitutional draft for years now, has written extensively on the subject, and has visited the country on a number of occasions to meet and consult with the people working most closely with the process. In the run-up to the parliamentary elections, the constitutional draft was a subject raised by a number of parties, so we touched base with Dr. Lessig to get his thoughts on what this draft means, and why it matters not just to Iceland, but possibly to the rest of the world.

A letter by Simon Hedlin `19. After a deeply polarizing election, Donald Trump’s priority should be bipartisanship. So, here are three things President Trump ought to do: 1. Nominate a moderate Supreme Court justice, such as Judge Consuelo María Callahan of the Ninth Circuit. Ms. Callahan, who is Hispanic, was nominated by George W. Bush and was confirmed 99 to 0 by the Senate. 2. Select several Democrats for high-profile cabinet positions. Senators Joe Manchin and Joe Donnelly, both of whom are known for their bipartisanship, would be good candidates. 3. Resist the temptation to fill vacancies with partisan surrogates like Newt Gingrich and Rudy Giuliani. Instead, Mr. Trump should look to outsiders, such as Paul Brest, former dean of Stanford Law School, and the activist investor Carl Icahn.

About 100 students, faculty, and staff from several of Harvard’s schools chanted and heard speeches around University Hall Thursday to protest Donald Trump’s victory in the presidential election. Reclaim Harvard Law—a student activist group at the Law School—organized the rally, dubbed “Harvard Against Hate.” Congregated around the John Harvard statue, students, activists, a custodial worker, and Cambridge city government representatives spoke about their reactions to Trump’s victory and called on Harvard affiliates to take action in response. They also urged attendees to support Harvard’s custodians’ demands in their ongoing contract negotiations with the University. Second-year Law student and Reclaim Harvard Law organizer Collin P. Poirot led attendees in chants of “Stand up, fight back”—a common refrain during last month’s dining services workers’ strike—and “Hey, hey, ho, ho, Donald Trump has got to go.” “A lot of people woke up on Wednesday in a country that basically told them that they hate them,” Poirot said in an interview.

Enforcement of the U.S. law against foreign bribery, considered a hallmark in the global fight against corruption, may drop during the Trump administration, some experts said. Others disagreed, however, saying it was too early to tell or that the new administration may want to show it’s serious...Matthew Stephenson, a professor at the Harvard Law School, wrote a post on the Global Anti-Corruption Blog this week saying the “era of vigorous FCPA enforcement…is over.” “It’s hard for me to imagine that the attorney general of a Trump administration…would make prosecuting foreign bribery a significant priority, or would devote substantial resources to this area,” he wrote. “It might take a little while for the change to become apparent–there are still some cases in the pipeline, after all–but I’d be shocked if the U.S. maintained anything like its current level of FCPA enforcement.”

An op-ed by Glenn Cohen, Dan Pedrotty, Jason Schmitt and Mario Nguyen `17. Midway through the first semester of the school year is a time when many college students begin struggling with exams, roommate disputes, and career plans. But the one-third of college students who are first in their families to attend college (“first-gens”) face a different formidable set of challenges. For two-thirds of these first-gens, college reality likely involves living at home and working while commuting to local community colleges or earning online degrees. Only 40 percent of first-gens will graduate from four-year colleges within six years, earning that critical degree that helps open doors to higher earnings and good jobs. This trend can be reversed but requires addressing challenges faced specifically by first-gens.

President-elect Donald Trump's vows to single-handedly gut Obama administration environmental regulations will be more difficult than he has portrayed, legal experts say. And any effort by Trump's U.S. EPA to rescind or revoke major scientifically based rules — like the air standard for ozone pollution — would be met with a barrage of lawsuits. "Lots of threats of this kind have come in the past," said Jody Freeman, a Harvard Law School professor and former climate adviser to President Obama. "Virtually every Republican administration comes in and says they want to deregulate. But when the rubber hits the road, there is little of it."

A letter by Simon Hedlin `19. The Nov. 9 editorial “If ‘boys are boys,’ they can’t play men’s soccer” was correct that the “boys will be boys” norm has helped enable sexual assault, especially on college campuses. But another crucial reason behind the high prevalence of sexual assault is simple ignorance. Other unwanted conduct is better understood and, therefore, easier to combat. People know, for example, that taking property directly from another person by force is robbery. By contrast, research shows that many people are unaware that sexual assault encompasses any type of sexual contact that occurs without consent.

An op-ed by Adrian Vermeule: In transitional justice, the "thick line" is a deliberate policy of forgetting what went before. I want to suggest a version of the thick line for the 2016 election campaign; more specifically, a one-year moratorium on pointing out the inconsistency or even hypocrisy of others, based on statements they made during the campaign.

An op-ed by Cass Sunstein. The Donald Trump presidency, coupled with the new Congress, is likely to produce major changes in federal law. But for the Supreme Court, expect a surprising amount of continuity -- far more than conservatives hope and progressives fear. If, as expected, Trump is able to replace Justice Antonin Scalia, the court will look a lot like it did until Scalia died in February: four relative liberals (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor); two moderate conservatives (John Roberts and Anthony Kennedy); and three relative conservatives (Clarence Thomas, Samuel Alito, and the new justice).

An op-ed by Noah Feldman. The financial markets thought Donald Trump’s conciliatory victory speech early Wednesday morning meant something. That interpretation seems plausible. If nothing else, Trump’s tone suggested that he realized the markets were getting volatile and that he wanted to calm the waters by giving the most conventional speech he’s ever delivered.

In November 2000, as the Florida recount gripped the nation, a newly elected Democratic senator from New York took a break from an upstate victory tour to address the possibility that Al Gore could wind up winning the popular vote but losing the presidential election. She was unequivocal. “I believe strongly that in a democracy, we should respect the will of the people,” Hillary Clinton said, “and to me that means it’s time to do away with the Electoral College and move to the popular election of our president.” Sixteen years later, the Electoral College is still standing...Some states have discussed a possibility that would not necessarily require amending the Constitution: jettisoning the winner-takes-all system, in which a single candidate is awarded all of a state’s electoral votes — regardless of the popular vote — and instead apportioning them to reflect the breakdown of each state’s popular vote. Two states, Maine and Nebraska, already do this. But even that approach could face a constitutional challenge from opponents, said Laurence H. Tribe, a professor at Harvard Law School.

Time spoke with Jack Goldsmith, a Harvard Law School professor, a senior fellow at the Hoover Institution and former Assistant Attorney General in the George W. Bush Administration, about the role of executive power in a Donald Trump presidency. What checks will there be on a Donald Trump presidency? The potential checks are many, including Congress and the Courts, the free press and many internal Executive branch watchdogs like inspectors generals, lawyers and the permanent bureaucracy. And of course the people in the next election.

...For some perspective on what, exactly, Obama can do between now and January 20 to make life trickier for Trump, I called up Mark Tushnet. He's a professor at Harvard Law School who clerked for Supreme Court Justice Thurgood Marshall and specializes, among other things, in constitutional law and legal history. Here's what he had to say about what to expect over the next few weeks...Professor Mark Tushnet: As a formal matter, no, he hasn't exhausted his authority until noon on January 20 next year. As a practical political matter, of course, it's very unlikely he'll be able to do anything substantial during that period because he could do it and President Trump on the 21st could revoke all that he had done. As a technical matter, though, he still has all the power that a president has.

Jo B. Laird, a lawyer known for her work on art sales, cautioned Harvard Law School students Wednesday that legally defending artistic creation has become more urgent after the 2016 presidential election...Kate Wiener, a student at the Law School, said she enjoyed hearing Laird speak. “Laird struck an incredible tone about an interesting subject in a very important moment in history,” Wiener said. “I really appreciated the conversation that Laird led since it was so relevant in the political world.” Heather Lee, another Law School student, echoed this sentiment. “It was refreshing that Laird connected what happened in the presidential election to art, and that this connection can be seen throughout the past as well,” she said.

In the wake of Donald Trump's election, several Big Law leaders are calling on the profession to take a more vocal and visible stand to protect the rule of law. "Given the election and its many implications, there has been no moment in recent memory when it has been more important for lawyers to fulfill their professional responsibilities," says William Lee, former co-chairman of Wilmer Cutler Pickering Hale and Dorr. "As a profession, we must ensure that the rule of law that is our fundamental core value is our highest priority and applicable and available to everyone."...Two years ago, Wilmer's Lee and two other prominent lawyers made a clarion call in an article entitled "Lawyers as Professionals and as Citizens." Lee and the two other authors—former General Electric Corp. general counsel Benjamin Heineman Jr. and Harvard Law School professor David Wilkins—argued that law firms should play a bigger role defending the rule of law. The article, published by the Center on the Legal Profession at Harvard Law School, called for the emergence a new generation of leaders in the mold of Robert Fiske of Davis Polk & Wardwell and the late Lloyd Cutler of Wilmer.

An article by Zalman Rothschild `18. Rabbi Joseph Soloveitchik (1903-93) has long been considered the spiritual and intellectual leader of American Modern Orthodoxy in the 20th century. His extensive command of the Talmud, Jewish codes and Jewish philosophy, coupled with a doctorate from the University of Berlin (now Humboldt University of Berlin), made him the natural figurehead of a movement that identifies with the currents of both modernity and tradition. Soloveitchik’s concurrent loyalty to Jewish orthodoxy on the one hand, and rigorous modern philosophic thinking on the other, has spurred much debate regarding where his “true” allegiances lay.