HLS faculty weigh in

A selection of analyses and opinions from Harvard Law School experts.

Why Obama Hasn’t Closed Guantanamo Bay—and Probably Never Will

An op-ed by Jack Goldsmith. For months the Obama administration has raised the stakes on its seven-year pledge to close the Guantanamo Bay detention center. In November three former senior Obama administration attorneys argued that the president had the constitutional power to ignore the legal restrictions Congress has placed on bringing dangerous detainees to the United States. Presidential aides suggested that the White House was taking the argument seriously. And then last week, in preview interviews for the President’s State of the Union address, Chief of Staff Denis McDonough put down a marker about Guantanamo.

Continue Reading at Time »

Constitutional Cruz control

An op-ed by Laurence Tribe. There’s more than meets the eye in the ongoing dustup over whether Ted Cruz is eligible to serve as president, which under the Constitution comes down to whether he’s a “natural born citizen” despite his 1970 Canadian birth. Senator Cruz contends his eligibility is “settled” by naturalization laws Congress enacted long ago. But those laws didn’t address, much less resolve, the matter of presidential eligibility, and no Supreme Court decision in the past two centuries has ever done so. In truth, the constitutional definition of a “natural born citizen” is completely unsettled, as the most careful scholarship on the question has concluded. Needless to say, Cruz would never take Donald Trump’s advice to ask a court whether the Cruz definition is correct, because that would in effect confess doubt where Cruz claims there is certainty.

Continue Reading at The Boston Globe »

Is Cruz ‘Natural Born’? Well … Maybe

An op-ed by Cass Sunstein. As just about everyone knows by now, Senator Ted Cruz was born in Canada, to a Cuban-born father and a mother who was a U.S. citizen. Cruz held Canadian citizenship for nearly all of his life, relinquishing it only in 2014, when he was planning to run for the presidency. Is he eligible to hold the office he seeks? This is a question of constitutional law, not of politics; it should be approached as such. Respected analysts have shown that the question is not simple to answer. The Constitution states that the president must be “natural born,” but doesn’t define that term. The Supreme Court has never ruled on the issue; if it did, it would find a murky history.

Continue Reading at Bloomberg »

Big Cable’s Sledgehammer Is Coming Down

An op-ed by Susan Crawford. I want to talk about the sledgehammer of usage-based billing. I take no pride in saying that I’ve been talking about it for years. The sledgehammer is not something I welcome, and I would have been happy if my fears about it never materialized. After all, the sledgehammer could cost internet users billions of dollars, enrich monopolists, and defeat the spirit — if not the law — of net neutrality. In a big way, the sledgehammer will also beat down our economic growth. This is one evil sledgehammer. And it sounds so innocent! Usage-based billing. Kind of like paying for what you use, right? Don’t be fooled.

Continue Reading at Medium »

Congress is playing with fire over Fed power

An op-ed by Hal Scott. The United States House of Representatives recently passed the Fed Oversight Reform and Modernization (FORM) Act, which would effectively eliminate the Federal Reserve’s authority to act as a lender of last resort to much of the financial system. Without a strong lender of last resort in a financial crisis, as we had in 2008, our financial system could collapse, and our economy and country with it, all in a matter of weeks as people panic unable to get their money. The FORM Act, as Fed Chair Janet Yellen wrote in a letter to congressional leaders before the vote, would effectively prohibit the Fed from lending to non-banks in a crisis.

Continue Reading at CNBC »

Politicians Talk Nonsense Because It Works

An op-ed by Cass Sunstein. Do you think that this is a profound statement? “Intention and attention are mystery’s manifestation.” What about this one? “Hidden meanings transform unseen beauty.” Both statements are, of course, bullshit, understood in a particular sense: not a lie, but a kind of verbal smokescreen, designed to suggest depth and insight but actually vague, vacuous or meaningless. As we’ll see, an understanding of pretentious-sounding gibberish and its frequent power tells us something important about contemporary politics. But we need a little social science first.

Continue Reading at Bloomberg »

Black Lives Matter occupies an important space

An op-ed by Ronald Sullivan Jr. The meme “All Lives Matter” is yet another effort to undermine legitimate calls to end antiblack police practices that characterize far too many interactions between police and citizens of color. Covered with a veneer of neutral and inclusive language, this mantra cleverly hides an intent to silence those who insist that police treat black citizens justly. Perhaps the cry “All Lives Matter’’ would register as genuine if police unions expressed the same opprobrium when a fellow officer kills a person of color as they do when an officer is killed. But this rarely happens. Instead, police unions tend either to support or remain deafeningly silent when their own misbehave.

Continue Reading at The Boston Globe »

Olympics out, UN sports conference in?

An op-ed by Charles Nesson. Boston’s Olympic bid spurred a remarkable community deliberation. It gave us a chance to talk about our visions for sports and the city. The discussions were exciting, and we felt a spirit of democracy. But the subsequent withdrawal of the bid left many with an empty feeling. It truncated deliberation about the future of Boston’s engagement with sport by removing its focal point. Suddenly, we had no place to go. We moved on to the issue of chewing tobacco at Fenway. Without an Olympic focal point, our energy dissipated. But we now have an opportunity to regain that energy. The United Nations, through UNESCO, is seeking a host city for its next all-nations sports conference, the International Conference of Ministers and Senior Officials Responsible for Physical Education and Sport, or MINEPS VI, to be held in May 2017. Boston should bid for it.

Continue Reading at Boston Globe »

The Imaginary Problem of Corporate Short-Termism

An op-ed by Mark Roe. Corporate “short-termism” may not be as interesting as Donald Trump’s latest gaffe, but it’s becoming an issue in the 2016 presidential race. Corporations, the idea goes, are being run too much with an eye toward quarterly earnings instead of the long-term good of their businesses, their employees and the economy. Investors are to blame, and something needs to be done. Hillary Clinton has proposed making changes to capital-gains taxes and holding periods to encourage long-term investments. But it isn’t just Democrats who are concerned about short-termism…Among those who opine on the topic, most take for granted that corporate short-termism is pervasive, and more important damaging to the U.S. economy. But is it? Or is it a small issue on which we could do better but that’s been blown out of proportion by those fearful of change? I see it as just that.

Continue Reading at The Wall Street Journal »

US should not negotiate free trade behind closed doors (registration)

An op-ed by Mark Wu. Many Americans who think free trade can be good for them nevertheless doubt whether the same can be said for the international trade agreements that are actually being written, often in conditions of secrecy. The Trans-Pacific Partnership, an agreement that the US is negotiating with 11 Pacific Rim countries, is a case in point. Beyond the few paragraphs on the White House website, most Americans have little idea what it contains. Even members of Congress have to go to a secure room in the basement to read the latest negotiating text…As a former trade negotiator, I know that so-called trade promotion authority and some degree of secrecy is vital for getting a deal done. But the current level of secrecy may be going too far. Instead of dismissing critics as misguided, the White House should strike a better balance between retaining flexibility for negotiators and keeping the public informed during the process.

Continue Reading at The Financial Times »

Do Human Rights Increase Inequality?

An article by Samuel Moyn. Imagine that one man owned everything. Call him Croesus, after the king of ancient lore who, Herodotus says, was so “wonderfully rich” that he “thought himself the happiest of mortals.” Impossibly elevated above his fellow men and women, this modern Croesus is also magnanimous. He does not want people to starve, and not only because he needs some of them for the upkeep of his global estate. Croesus insists on a floor of protection, so that everyone living under his benevolent but total ascendancy can escape destitution. Health, food, water, even paid vacations, Croesus funds them all. In comparison with the world in which we live today, where few enjoy these benefits, Croesus offers a kind of utopia. It is the one foreseen in the Universal Declaration of Human Rights (1948), a utopia that, though little known in its own time, has become our own, with the rise in the past half-century of the international human rights movement — especially now that this movement has belatedly turned its attention to the economic and social rights that the declaration promised.

Continue Reading at The Chronicle of Higher Education »

Battling with the too-big-to-fail banks

An op-ed by Mark Roe. Headlines about banks’ risks to the financial system continue to dominate the financial news. Bank of America performed poorly on the US Federal Reserve’s financial stress tests, and regulators criticised Goldman Sachs’ and JPMorgan Chase’s financing plans, leading both to lower their planned dividends and share buybacks. What was also of interest was Citibank’s hefty build up of its financial trading business that raises doubts about whether it is controlling risk properly. These results suggest that some of the biggest banks remain at risk. And yet bankers are insisting that the post-crisis task of strengthening regulation and building a safer financial system has nearly been completed, with some citing recent studies of bank safety to support this argument. So which is it: are banks still at risk? Or has post-crisis regulatory reform done its job?

Continue Reading at World Finance »

A Death Sentence for Tsarnaev

An op-ed by Noah Feldman. In retrospect, it seems inevitable that Boston Marathon bomber Dzhokhar Tsarnaev would get the death penalty. He’s a self-acknowledged terrorist who killed and maimed adults and children in the middle of a major American city, which happens to be my own. The jury that sentenced him was limited to citizens who apparently believed that capital punishment was justified under at least some circumstances. If he’s not going to be sentenced to death, who is? Yet I confess that, despite this ironclad logic, I still feel surprised and unsettled by the verdict — because here in Massachusetts, where I was born and have lived most of my life, the death penalty has over the last several generations come to seem distant, foreign and unfamiliar.

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We all chose death for Dzhokhar Tsarnaev

An op-ed by Nancy Gertner. We all chose death for Dzhokhar Tsarnaev. Make no mistake about it. The death penalty law was passed in our name. Attorney General Holder and US Attorney Carmen Ortiz are employed by the government we elected. They sought death for Tsarnaev for the victims, including the Richard family, whose tragedy they highlighted, even though the Richards were opposed to Tsarnaev’s death. The government sought it for Boston — also a victim — even though the majority of the citizens of the city opposed it. The verdict in the United States v. Tsarnaev was literally brought in our name.

Continue Reading at The Boston Globe »

Boston Bomber Trial Verdict: Analysis (video)

Dzhokhar Tsarnaev was convicted of 30 charges in the Boston Marathon bombing trial and may now face the death penalty. Harvard Law School professor Ron Sullivan offers analysis.

Continue Reading at The Wall Street Journal »

Was Dzhokhar Tsarnaev trial necessary?

An op-ed by Nancy Gertner. The first phase of the trial of Dzhokhar Tsarnaev was supposed to be about liability. In reality, it felt like a penalty hearing, albeit in slow motion. Now that Tsarnaev has been found guilty for his role in the 2013 Boston Marathon bombing, the jury will deal directly with the only critical question — should Tsarnaev get life in prison or the death penalty? But, even at this late stage, the real question is: Why was this trial necessary? Why did the US attorney general insist on the death penalty here, while calling for its moratorium elsewhere? Why did the US government press for the death penalty when the defendant would have pled to life without parole? That was, after all, the defense message from the outset with the opening statement of Judy Clarke, Tsarnaev’s lawyer — “it was him.” “We will not sidestep Tsarnaev’s responsibility for his actions,” she said, actions which were “incomprehensible” and “inexcusable.”

Continue Reading at The Boston Globe »

Boston Bomber, Killer Without a Cause

An op-ed by Noah Feldman. It was sleeting hard in Boston on Wednesday afternoon as the jury returned a guilty verdict on all 30 counts against Dzhokhar Tsarnaev for carrying out the 2013 Boston Marathon bombing that killed an 8-year-old and two women and wounded at least 260 people. Somehow the weather seems appropriate, even though it’s after Easter. Throughout this intensely cold, snowy winter in Boston, the specter of the Tsarnaev trial has been a constant and unwelcome reminder that for all its liberalism and toleration, this city isn’t immune from the troubles that plague the rest of the world.

Continue Reading at Bloomberg »