Media Mentions

The can of worms opened with a teasing tweet from @tribelaw, the Twitter account of Harvard Law School professor Laurence Tribe. Tribe, a frequent social media critic of Republican presidential candidate Donald Trump, disclosed that Trump had called him for legal advice 20 years ago. Saying he kept his notes from the call and implying he might release them, the constitutional law scholar mused whether his discussion with Trump in 1996 would fall under the attorney-client privilege. (Tribe's tweet came in response to Democratic consultant Bob Shrum, who called Trump a blowhard — a charge with which Tribe appears to agree.)

An op-ed by Cass Sunstein...Which brings us to Donald Trump. No one should deny that Islamic terrorists want to kill Americans, and Trump is right to emphasize the need for careful screening procedures to keep Americans safe. But by branding his political opponents as in league with terrorists, and in calling for a new kind of Cold War, Trump is engaging in a form of 21st-century McCarthyism. In some ways, he’s outdoing McCarthy. The most alarming line in Trump’s national security speech this week has received far too little attention. It wasn’t his claim that we should admit only those people who “share our values.” Nor was it his vague proposal for a new “immigration screening test.” The most alarming line was his identification of “the common thread linking the major Islamic terrorist attacks that have recently occurred on our soil,” which turns out to be “that they have involved immigrants or the children of immigrants.”

An op-ed by Noah Feldman. It’s never the wrongdoing -- it’s the lying about it. Pennsylvania Attorney General Kathleen Kane, who announced her resignation Tuesday in the face of a possible 14-year sentence for her conviction on perjury charges, proves the truth of that adage for public corruption cases. Leaking grand jury proceedings to embarrass a political rival would not have gotten her sent to prison. But lying about it under oath could and will. How could a state’s top law enforcement official be so dumb? Why are perjury charges so serious? And why don’t people, even lawyers, realize it?

A quarter century after the end of the cold war, Donald Trump has proposed restoring ideological tests for immigrants, a move that legal experts say raises a tangle of practical and even constitutional concerns. In a speech on Monday devoid of policy details or specifics, the Republican nominee called for the “extreme vetting” of immigrants, including a screening process to root out applicants who do not uphold “American values”. Laurence Tribe, a liberal constitutional law professor at Harvard University, said Trump’s proposal was “a nonstarter”. “The proposal ... is very deeply un-American, is probably unconstitutional, would almost certainly fail in Congress and is another example of Trump having no idea what he’s talking about,” he said. Restricting immigrants on the basis of ideology is anathema to American values, Tribe argues. Freedom of speech and religion are enshrined under the first amendment of the constitution and the enduring symbol of freedom is the Statue of Liberty welcoming weary immigrants to its shores.

An op-ed by Adrian Perkins `18. Police departments across the country should draw heavily from military veterans to fill their ranks. Many already do this, but they should take it a step further and adapt the United States Army’s sensitivity training program, which soldiers take before deployment. This program includes mock engagements with communities, as well as religious and cultural classes. The cultural and demographic divide between local law enforcement and the communities they police can be enormous. When there is a cultural gap as wide as the one in cities like Ferguson and the north side of Baton Rouge, inadequate training, military grade equipment and cell phone and body camera technology can turn neighborhoods into tinderboxes. Ideally, our police departments should focus on improving diversity within the force, but cultural training would also be good. Actively recruiting from the military could help on both fronts.

An op-ed by Jonathan Zittrain. This month, Apple previewed some changes to its next generation of iPhones and iPads with the promise that “all the things you love to do are more expressive, more dynamic and more fun than ever.” That especially includes emojis, those little icons that, according to one study, 92 percent of the online population now make part of their everyday communication. One change in particular, though, is not delighting everyone. Apple’s new suite of operating systems appears to replace its pistol emoji, which was an image of a six-shooter, with a squirt gun...To eliminate an elemental concept from a language’s vocabulary is to reflect a sweeping view of how availability of language can control behavior, as well as a strange desire for companies — and inevitably, governments — to police our behavior through that language. In the United States, this confuses taking a particular position on the Second Amendment, concerning the right to bear arms, with the First, which guarantees freedom of speech, including speech about arms.

Nearly a year after the Boston Police Department launched a mediation program to reduce a backlog of minor grievances against officers, not a single complaint has been mediated because the officers involved have refused to participate. The program, which began in September, was billed as a way to quickly resolve routine complaints such as allegations of disrespectful treatment, which would allow the department to spend more time investigating more serious allegations of misconduct or use of excessive force. But for a complaint to be mediated, both parties must agree to participate. Under the program, managed by the Harvard Mediation Program at Harvard Law School, officers are asked first if they want to participate. If they refuse, the party who filed the complaint is not offered the option of mediation...It’s not unusual that officers are reluctant, officials say. “Officer resistance” is the primary reason similar programs fail to catch on during the first year, said Rachel A. Viscomi, assistant director of the mediation program. “It’s not a process [officers are] familiar with,” she said. “It’s a challenge anytime you’re starting something new, especially when it’s so different from what they’re used to.” “It is disappointing, but not out of the norm by any stretch,” Viscomi said.

...During the controversy, [Bryan] Stevenson visited the University of Texas Law School, in Austin, for a conference on the relationship between the death penalty and lynching. Jordan Steiker, the professor who convened the meeting, told me, “In one sense, the death penalty is clearly a substitute for lynching. One of the main justifications for the use of the death penalty, especially in the South, was that it served to avoid lynching. The number of people executed rises tremendously at the end of the lynching era. And there’s still incredible overlap between places that had lynching and places that continue to use the death penalty.” Drawing on the work of such noted legal scholars as David Garland and Franklin Zimring, Steiker and his sister Carol, a professor at Harvard Law School, have written a forthcoming book, “Courting Death: The Supreme Court and Capital Punishment,” which explores the links between lynching and state-sponsored executions. The Steikers write, “The practice of lynching constituted ‘a form of unofficial capital punishment’ that in its heyday was even more common than the official kind.”

...In 2010, the International Criminal Court (ICC), the Hague-based tribunal created in 1998 to try the worst atrocities on earth — war crimes, crimes against humanity and genocide — announced plans to charge six Kenyans for orchestrating the postelection violence. The most important suspect was Uhuru Kenyatta; the son of Kenya’s first president, Jomo Kenyatta, he was considered by many Kikuyu to be their natural leader...Alex Whiting, a onetime federal prosecutor in Boston who became Moreno-Ocampo’s prosecutions coordinator, told me the Kenyatta case “was like trying to prosecute an organized-crime case without the tools the Department of Justice uses to prosecute organized crime” — though, for this reason, Moreno-Ocampo’s temperament was an asset. “You have to have a big ego, because you don’t have much else.”

...An examination of 75 think tanks found an array of researchers who had simultaneously worked as registered lobbyists, members of corporate boards or outside consultants in litigation and regulatory disputes, with only intermittent disclosure of their dual roles. With their expertise and authority, think tank scholars offer themselves as independent arbiters, playing a vital role in Washington’s political economy. Their imprimatur helps shape government decisions that can be lucrative to corporations...“I think we have too much influence of funded research with clear interests at stake that is treated as though it is independent and academic research,” said Yochai Benkler, a professor at Harvard Law School and co-director of its Berkman Klein Center for Internet & Society. “There is no culture in the discipline to mark funded research clearly, or systematically treat it as less reliable.”

Amateur psychoanalysts have put Donald Trump on the couch, calling him a sociopath, unhinged, a narcissist. Amid all this psych-talk, there is one group of people who aren't talking as much: the professionals. Or at least they're not supposed to. Professional ethics dictate that psychiatrists and psychologists avoid publicly analyzing or diagnosing someone they've never examined, but there is new and unusually vocal dissension against this long-held gag rule because of what some of them think they hear and see in Trump...In 1973, the psychiatry association adopted the Goldwater rule. Dr. Alan Stone, a professor of psychiatry and the law at Harvard, was the lone board member to vote against it. "I believe in free speech," Stone said. "If psychiatrists want to make fools of themselves, they have that right."

In nearly eight years in office, President Obama has sought to reshape the nation with a sweeping assertion of executive authority and a canon of regulations that have inserted the United States government more deeply into American life. Once a presidential candidate with deep misgivings about executive power, Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history...The new president had a skeptical streak when it came to the value of regulation, influenced by his friend Cass R. Sunstein, a Harvard Law professor who had long argued that the government should more rigorously assess the benefits of new regulations. Mr. Obama liked that idea so much that he named Mr. Sunstein to lead the White House office that oversees rule-making.

Khizr Khan, the father of a Muslim-American soldier who was killed in the Iraq War, accused Donald Trump of not reading the Constitution. Rep. Chris Collins, a Trump supporter, turned the claim around on Hillary Clinton. During an interview on MSNBC, Collins made assertions about Clinton’s views on the Constitution in the context of the Gold Star father’s Democratic National Convention speech. "He stood next to Hillary Clinton, who has already said she's going to wipe out the Second Amendment..."...We spoke to constitutional law experts Laurence Tribe from Harvard Law School and Matthew Steilen from the University at Buffalo about Collins' claim. In this case, they said executive actions and orders typically do not directly contradict the 10th Amendment.

A talk from the Aspen Ideas Festival about the state of America's democracy. Harvard Law professor Lawrence Lessig believes we've ended up with a democracy where there is unequal freedom to vote, unequal representation, and unequal status as citizens. The good news? He says it's completely fixable. Lawrence Lessig is professor of law at Harvard University. He spoke June 30, 2016 at the Aspen Ideas Festival in Colorado.

Crypto-currency exchange Bitfinex's plan to impose losses on all its trading clients for the theft by hackers of $72 million in Bitcoin rests on two flawed pillars, according to lawyers. The Hong Kong-based exchange said on Aug. 2 that hackers had stolen 119,756 bitcoins from some clients' accounts, the second-biggest such hack in dollar terms, and later said it would spread the losses across all its customers, whether or not they had been hacked or even held bitcoin...Patrick Murck, a fellow at Harvard University's Berkman Klein Center for Internet & Society, said the Bitfinex plan was unlikely to survive a legal challenge. "It might be a pyrrhic victory. You might still end up with less money," said Murck, who is also co-founder of the Bitcoin Foundation and its former general counsel, but the "odds are fairly low" that nobody will test it in court. "It takes one grumpy hold-out ... to blow the whole thing up,” he said.

An article by I. Glenn Cohen and Eli Y. Adashi. A potentially renewable provision of the Consolidated Appropriation Act of 2016 forestalling the prospect of human germline modification was signed into law on 18 December 2015. The provision...stipulates that “none of the funds made available by this Act [to the FDA] may be used to review or approve an application for an exemption for investigational use of a drug or biological product… in which a human embryo is intentionally created or modified to include a heritable genetic modification”. Destined to expire at the conclusion of this fiscal year (30 September 2016), the rider has since been incorporated yet again into the House and Senate appropriation bills for the fiscal year ending 30 September 2017. Subject to ongoing annual renewal, this congressionally legislated ban undermines ongoing conversations on the possibility of human germline modification, its likely distant time horizon notwithstanding. Also affected are ongoing efforts of the FDA to review the prevention of mitochondrial DNA diseases through germline modification of human zygotes or oocytes at risk.

An op-ed by Cass Sunstein. At the Olympics, we’re witnessing some serious cases of public shaming. Victorious competitors are publicly ostracizing those who once used performance-enhancing drugs. To take just one example, Australian Mack Horton, gold medalist in the 400-meter freestyle, pointedly refused even to acknowledge China’s silver medalist Sun Yang, who had been suspended for doping. “I don’t have time or respect for drug cheats,” Horton said later. Horton and others are aggressively asserting the social norm against drug use. By ostracizing those who violate that norm, they’re giving some important clues about the functions of norms in general -- and how they can be fortified.

An op-ed by Cass Sunstein. A federal court this week upheld the approach that the government uses to calculate the social cost of carbon when it issues regulations -- and not just the cost imposed on Americans, but on people worldwide. It’s technical stuff, but also one of the most important climate change rulings ever. The social cost of carbon is meant to capture the economic damage of a ton of carbon emissions. The assumptions that go into the analysis, and the resulting number, matter a lot, because they play a key role in the cost-benefit analysis for countless regulations

An op-ed by Noah Feldman. How much leeway should Marines have to express their religious beliefs? According to Congress, religious liberty laws apply with full force to the military. But last week the highest court in the armed forces put some limits on claims by active-duty personnel. Those limits cut against recent trends in Supreme Court jurisprudence -- but they make a lot of sense in a military context, even if they shouldn’t necessarily be copied by other courts for civilians.

An op-ed by Noah Feldman. A century ago, Donald Trump might have gone to prison for suggesting that “the Second Amendment people” might find a way to stop Hillary Clinton’s agenda as president. Today, the First Amendment protects him -- barely. It’s still a federal crime to threaten the life of the president, and people go to jail for it all the time, despite the apparent abridgment of free speech. But while Trump’s words would probably get him a Secret Service visit if he were an ordinary crazy person, they wouldn’t lead to prosecution.

It’s no secret that there’s a crisis in the lower rungs of America’s criminal defense system. Public defenders, overloaded with cases, struggle to offer even bare-bones defense for defendants who can’t afford their own lawyers. But for the first time, research now shows that the scales of justice are tilted against poor defendants all the way to the Supreme Court, with as many as two-thirds of them represented by lawyers relatively inexperienced in the ways of the nation’s highest court...A recent study was able to quantify the advocacy gap between criminal defense lawyers and the rest of the Supreme Court bar, which many regular court watchers have long suspected. The study – published by Harvard Law Prof. Andrew Manuel Crespo – examined 10 years of Supreme Court arguments ending in June 2015. In two-thirds of the cases, they had argued fewer than two cases before the high court.