Media Mentions

An op-ed by Noah Feldman. If Donald Trump loses the election and doesn’t concede, it won’t violate the U.S. Constitution. But it would break a tradition of concession that dates back more than a century and has achieved quasi-constitutional status. And like most enduring political customs, its value goes beyond graciousness: It helps ensure the continuity of government and offers a legitimating assist to democracy itself.

...Harvard Law School professor Laurence Tribe, who was a member of Gore’s legal team, said in an email that the timing and nature of Trump’s statements made comparisons to Bush v. Gore “off-point.” “Launching challenges after the election based on such demonstrated irregularities bears no resemblance to deliberately withholding the standard agreement that, once the official results have been certified after all postelection challenges have been resolved, one will abide by the final outcome,” Tribe said. Asked if he would accept the election results, Trump said at the debate that he would “look at it at the time.” He later said that he would accept the results if he won. Tribe said that the candidate’s comments were “totally disqualifying.” “To create mystery and suspense over one’s willingness to live by democracy’s verdict after repeatedly claiming that the only way one could lose would be as a result of a ‘rigged election’ is to challenge the very principles that have made our national transitions of power peaceful throughout our history,” Tribe said. “It is to invite nothing short of civil war.”

Native Americans currently represent 1 percent of the U.S. population, but thousands of years ago they were the indigenous inhabitants of the territory known to some of them as Turtle Island and eventually to others as North America. Today, there are 567 federally recognized tribes. The largest are the Navajo Nation and Cherokee Nation. Harvard Law School, the Harvard University Native American Program, and the Harvard Native American Law Students Association held a conference last week to examine relations between Native Americans and state and federal governments. Keynote speakers included University of Colorado Law School Dean S. James Anaya, Quinault Indian Nation President Fawn Sharp, and U.S. Ambassador to the United Nations Keith Harper. The Gazette interviewed Kristen Carpenter ’98, Oneida Indian Nation Visiting Professor of Law at HLS, Council Tree Professor at University of Colorado Law School, and one of the event organizers, on the history of American Indian law, the friction between federal and tribal laws, and the rise of the indigenous rights movement in the United States.

An op-ed by Laurence Tribe. As the countdown to the November 8 election proceeds, one major party candidate continues his jihad against American democracy, twisting the knife ever deeper not just into himself and his unhinged quest for the most powerful position on the planet but into the very heart of our body politic. And he defends doing so by deliberately misapplying what happened 16 years ago in Bush v. Gore, a case in which I represented Vice President Gore both as lead counsel in all the briefs filed on his behalf in the Supreme Court and as the oral advocate in the first of the two Supreme Court arguments in that fateful case.

...America's bail system has become a central issue in the fight to reverse mass incarceration and to ease the disproportionate burden shouldered by the poor and minorities. In courthouses, statehouses and ballot boxes across the country, civil rights lawyers and progressive policymakers are working to curb the practice of demanding money in exchange for freedom before trial, an effort tied to a broader crackdown on other money-based penalties, such as fees and fines...Larry Schwartztol, executive director of the newly formed Criminal Justice Policy Program at Harvard Law School, said he sees it happening already. "There's been this amazing pendulum swing from what had been a bipartisan coalition in the 1990s for a punitive approach to criminal justice to a broad convergence now of people thinking about ways to be smart on crime, to move away from mass incarceration and to account for the harmful effect the criminal justice system has had," Schwartztol said. He added, "I think there may be a tipping point for sweeping change."

An op-ed by Noah Feldman: Senator John McCain may not have meant to say that a Republican Senate would refuse to vote, either up or down, on any Supreme Court nominee put up by Hillary Clinton. But what if Republican senators just said they would vote down any candidate Clinton nominated? Would the resulting political standoff amount to a constitutional crisis?

An op-ed by Cass Sunstein: t’s hard to imagine a presidential election with higher stakes than the current one: Hillary Clinton and Donald Trump offer radically different ideas about the country's direction, and many people believe that one or the other would be catastrophic. Yet new evidence raises the possibility that we will see an unusually low voter turnout.

With racial disparity in incarceration rates greater in Massachusetts than the country as a whole, Supreme Judicial Court Chief Justice Ralph Gants on Thursday said the courts are taking steps to study and address that issue. ... "We need to find out why," Gants said. Gants said Dean Martha Minow of Harvard Law School has agreed to investigate ethnic disparity in the state's incarceration rate.

Mary T.W. Robinson, a former president of Ireland and current United Nations Special Envoy on El Niño and Climate, spoke about widespread human displacement due to climate change at a discussion at Harvard Law School on Thursday evening. Law School Dean Martha L. Minow moderated the discussion in front of a packed audience. “There is nobody on earth who is more involved, who has done more on the subjects that bring us here today,” Minow said when introducing Robinson. ... “The piece that really stood out to me was the need for us to most recognize the problem, but to think about it in a way that is proactive so that we are doing things that are active,” clinical professor of law Tyler R. Giannini said.

U.S. securities regulators are set to soon propose dramatic changes to how investors choose between board candidates offered by activist investors and those offered by a company. The Securities and Exchange Commission is expected as early as next week to propose rules that would make it easier for shareholders to vote on board candidates nominated by investors, in competition with those pushed by the company’s management, according to people familiar with the matter...The current rules’ limit on choosing from both slates may have resulted in the wrong candidates being elected inasmuch as 22% of all votes conducted from 2008 through 2015, according to a forthcoming study by Scott Hirst, a professor at Harvard Law School. The study, aimed at providing the first set of data to the debate about universal proxies, looked at what would happen if shareholders were able to vote freely for their favored candidates by reviewing “withhold” votes. These withhold votes come up when a shareholder votes on one card, either from management or the dissident, but doesn’t cast shares for one or more of those candidates in what amounts to a protest abstention.

Representatives from NASA, Space Systems Loral, and SpaceX discussed the future of laws governing outer space during a panel at the Law School Wednesday. As technology advances and the possibility of humans populating other planets comes ever closer, panelists proposed potential methods of expanding current law practices to fit a new frontier that is not on Earth—a sort of “space law.” Stephen F. Meil, a Law School student and editor of the Harvard Journal of Law and Technology, the organization that organized the event, said there were few formal programs in "space law" in the country. For NASA Chief of Staff Michael J. French, it was precisely this unknown territory that drew him to the industry in the first place. “I foresaw an upcoming intersection of business, law, politics, and all those unique things in a new and undefined way,” French said.

Fatima Al Qubaisi [LL.M. `17] has gone from being the first Emirati female student to graduate with a law degree from Paris-Sorbonne University in Abu Dhabi to the first Emirati woman to join Harvard law school in the US. It’s probably no surprise because she comes from a family of pioneers known for their achievements. "I belong to a family that likes to break records. My aunt, Amal Al Qubaisi, is one of my role models as she is the first female President of the Federal National Council," says Ms Al Qubaisi, 25.

An op-ed by Noah Feldman. Compared with the rest of the third presidential debate Wednesday night, the opening conversation about the Constitution was practically Lincoln-Douglas-like as the candidates answered questions and didn't interrupt each other. But the discussion of the seminal gun control case D.C. v. Heller was borderline incomprehensible unless you've recently taken constitutional law. And in giving an answer intended to express moderation on gun rights, Hillary Clinton missed a chance to express support for the original meaning of the Constitution.

An op-ed by Noah Feldman. An extraordinary poll released Wednesday showed Democratic presidential candidate Hillary Clinton and Republican nominee Donald Trump both losing in Utah to Evan McMullin, a conservative Mormon ex-CIA officer only on the ballot in 11 states. The best explanation for the rise of this independent candidate is that Mormons, who tend to have deeply conservative values, are genuinely repulsed by Donald Trump. And not just by the crude comments and allegations of sexual assault that recently came to light, but also by Trump’s anti-Muslim sentiment, which the Church of Jesus Christ of Latter-day Saints implicitly condemned 10 months ago.

An op-ed by Noah Feldman. Is Brexit unconstitutional? That’s the key issue in a suit argued this week before the High Court in London. What makes the question especially piquant is that Britain doesn’t have a single written constitution, but rather a complex tradition of constitutional law made up of principles, precedents and practices accrued over generations. Under those principles, the answer to whether the U.K. can leave the European Union without a parliamentary vote is … maybe. It seems most likely that the High Court -- or the Supreme Court, which will hear an appeal next -- will say that Brexit can be accomplished without it. But to reach that conclusion, the British courts will have to expand existing principles, and grapple with the meaning of the referendum as a political tool. It’s a sad day for the country that arguably invented representative government.

An op-ed by Noah Feldman. The Israeli press and government are in an uproar about a resolution submitted to UNESCO, the United Nations’s cultural agency, by seven Arab states that, they say, denies the connection between the Jewish people and the Temple Mount. The resolution, ratified Tuesday, is hopelessly one-sided, which is not a shock for a UN entity that operates on a majority vote and without a Security Council veto. But what’s fascinating is that the Israelis are treating the resolution as an assault on their religious-historical claims to the site, which the report addresses only obliquely. This is a deepening problem on both sides of the Israeli-Palestinian conflict: the slow transformation from a national struggle into a religious one. And the religious struggle never seems more intractable than when the topic is the Temple Mount.

One junk-bond trader at Goldman Sachs Group Inc. earned more than $100 million in trading profits for the firm earlier this year, an unusual gain at a time when new regulations have pushed Wall Street to take fewer risks. The gains were the work of Tom Malafronte, a managing director on the bank’s high-yield-bond desk in New York. The 34-year-old trader bought billions of dollars in junk corporate debt on the cheap starting in January, then locked in profits as prices recovered, according to people familiar with the matter...It is difficult—if not impossible—to define clearly the difference between trades made to meet clients’ demands and those conducted just to make money, said Hal Scott, a professor with Harvard Law School who has testified before Congress about efforts to regulate the banking industry. “No one has been able to distinguish between market making and prop trading,” Mr. Scott said.

Lawrence Lessig is a professor at Harvard Law School, a leading advocate for campaign finance reform, and short-lived presidential candidate. He was also, in the view of the Clinton campaign, circa August 2015, a “smug,” “pompous,” loathsome guy whom a reasonable person might wish “to kick the shit out of on Twitter.”...On Tuesday, these private barbs became public, thanks to WikiLeaks. And so, as Lessig made his way to New York to see his sick father, his inbox filled up with notifications about how much Neera Tanden once claimed to despise him. Reading through the email, Lessig was outraged — on Tanden’s behalf. Per Lessig’s blog: I’m a big believer in leaks for the public interest. That’s why I support Snowden, and why I believe the President should pardon him. But I can’t for the life of me see the public good in a leak like this — at least one that reveals no crime or violation of any important public policy.

On Aug. 11, 2015, the news media picked up on the plans of Larry Lessig, the Harvard Law professor and anti-corruption activist, to run for president in the Democratic primaries. Neera Tanden, the president of the Center for American Progress, apparently was not pleased. “You know what average Americans need?” Tanden appears to have written in an email allegedly obtained in a massive hack of Hillary Clinton campaign chairman John Podesta's account. “The smugness of Larry Lessig.”...“I can’t for the life of me see the public good in a leak like this — at least one that reveals no crime or violation of any important public policy,” wrote Lessig. “We all deserve privacy. The burdens of public service are insane enough without the perpetual threat that every thought shared with a friend becomes Twitter fodder. Neera has only ever served in the public (and public interest) sector. Her work has always and only been devoted to advancing her vision of the public good. It is not right that she should bear the burden of this sort of breach.”

The Affordable Care Act prohibits insurers from discriminating against people with serious illnesses, but some marketplace plans sidestep that taboo by making the drugs that people with HIV need unavailable or unaffordable, complaints filed recently with the Department of Health and Human Services' Office for Civil Rights allege. The effect may be to discourage people with HIV from buying a particular health plan or getting the treatment they need, according to the complaints. The complaints – brought by Harvard Law School's Center for Health Law and Policy Innovation – charge that plans offered by seven insurers in eight states are discriminatory because they don't cover drugs that are essential to the treatment of HIV or require high out-of-pocket spending by patients for covered drugs.

...In 2009, the American Law Institute—the most prestigious organization in the country engaged in improving the law—removed the death penalty from the options it had long recognized that states could choose from to punish a convicted murderer...The genesis of that change was the strong sentiment among the institute’s membership to formally oppose capital punishment. Lance Liebman, then its director, turned to the sister-and-brother team of Carol S. Steiker ’82, J.D. ’86, RI ’11, and Jordan M. Steiker, J.D. ’88, for counsel. They were “the most influential legal scholars in the death penalty community,” wrote criminal-justice scholar Evan J. Mandery in his book A Wild Justice...In the past seven years, the report has played a quiet yet decisive role in helping shift debate among scholars and policymakers about the death penalty. The focus has moved from whether the penalty is just, which cannot be answered empirically, to an emphasis on whether states apply it fairly and consistently, which can. The Steikers’ approach shaped the policy of America’s most respected legal organization. With its imprimatur, their report has influenced decisions of people who shape American law.