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News@Law, 03/29/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Today's News

The New York Times
Republican Rivals Talk Tough, but Even Presidents Have Limits
Senator Ted Cruz, a candidate for the Republican presidential nomination, has proposed surveilling Muslim neighborhoods. His chief rival, Donald J. Trump, says he would deport millions of undocumented immigrants and allow the use of torture. The campaign has also produced calls for carpet bombing in Syria and steps to rein in the press at home. But you have to wonder: If elected, could a new president intent on pushing or exceeding the boundaries of the Constitution or the law actually follow through?...Noah Feldman, a Harvard law professor, said the greatest bulwark against presidential overreach would be the huge number of people needed to carry out the work. Political appointees and career civil servants could refuse directives. Congress could refuse to pass and finance policies. The Justice Department’s Office of Legal Counsel could declare initiatives unconstitutional. But, Mr. Feldman added, another crisis — say, something like the Sept. 11 attacks — could change the dynamic. Officials might back down. A president could invoke President Lincoln’s suspension, over the objection of the Supreme Court chief justice, of habeas corpus, the foundational right to protest one’s detention. “Could a president unilaterally suspend habeas corpus? Well, all you can say is: It happened once,” Mr. Feldman said.
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Reason
How the Government Stole Sex
Fornication. Sodomy. Adultery. Not so long ago, the U.S. criminalized pretty much all sex outside of marriage. As these laws have been struck down by courts or allowed to settle into obsolescence, it would seem that sexual liberty has been vindicated as an important American value. But while the courts have been busy ushering the government out of our bedrooms, it's been creeping right back in under new pretenses. Gone is the language of morals, tradition, and orderr—the state now intervenes in our sex lives bearing the mantles of safety, exploitation, and sex discrimination. "We are living in a new sex bureaucracy," warn Harvard Law School professors Jacob Gersen and Jeannie Suk in an upcoming paper for the California Law Review. Contra court decisions such as Lawrence v. Texas—which decriminalized sodomy in Georgia and affirmed a constitutional right to sexual privacy—"the space of sex" is still "thoroughly regulated" in America, they write. And "the bureaucracy dedicated to that regulation of sex is growing. It operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."
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The Washington Post
The enormous carbon footprint of food that we never even eat
Discussions about how to reduce greenhouse-gas emissions frequently center on clean energy, more efficient transportation and sustainable agriculture. But research suggests that if we really want to pay attention to our carbon footprints, we should also be focusing on another, less-talked-about issue: the amount of food we waste each day...“The first step is really figuring out what is the right amount that we need to produce,” said Emily Broad Leib, director of the Harvard Food Law and Policy Clinic and an assistant clinical professor of law. Much of the food that goes to waste could be used by people who aren’t getting enough to eat. But it’s also likely that we could stand to reduce our overall production as well, cutting some of those emissions entirely. “I do think there’s a sweet spot, and we’re not hitting it right now,” Broad Leib said.
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NBC News
Harvard Law School’s Laurence Tribe Talks Merrick Garland, Supreme Court Fight
The intense political wrangling over Merrick Garland's nomination to the Supreme Court has overshadowed the traditional purpose of Senate confirmation — a serious look at the career and life of the contender...But who is Merrick Garland, and how did he come to be the kind of judge selected to navigate this unprecedented confirmation fight? Harvard Law Professor Laurence Tribe has unique experience to answer the question. He taught both Garland and Obama when they were students at the prestigious school. He continues to advise the White House on legal issues. Tribe discussed Garland's nomination with MSNBC.
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Backchannel
The Tesla Dividend: Better Internet Access
An op-ed by Susan Crawford. I’m looking forward to Tesla’s release of its mass-market Model 3 electric car next week. Owners love their beautiful Teslas, and this one will reportedly cost $35,000 before federal and state tax credits, meaning the net price could be less than the cost of an average American car. But my pulse rate is higher not because of the car itself, or even its pricetag. I’m excited because of what’s inside: a battery that can cost-effectively store enough energy to allow for hundreds of miles of travel. And an operating system that needs constant upgrades.
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The Harvard Crimson
Federal Judge Concerned Over Campus Free Speech Restrictions
Loretta A. Preska, chief judge of the U.S. District Court of Southern New York, said she was concerned about reduced tolerance of free speech on university campuses in a lecture at Harvard Law School on Monday...“I think institutionally, Harvard does a really good job of maintaining free speech,” Hussein E. Elbakri [`18], a student at the Law School, said. “But I think the social pressure not to say certain things, especially in discussions that affect race and gender, has been pretty prevalent in my classes.” Trenton J. Van Oss [`17], a Law School student who coordinated the event, said he was moved by the discussion. Van Oss is a member of the Federalist Society, a group of conservative, moderate, and libertarian Law School students, which sponsored the lecture. “I think one of the things she said that I really appreciated, was the idea that free speech is something that we have to fight for, every generation,” Van Oss said.” We need to work to create a culture of free speech where all views are appreciated.”
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Bloomberg
When You Can’t Find the Fine Print (Or Read It)
An op-ed by Noah Feldman. When was the last time you actually read the terms of service before clicking “I agree” on a website? Unless your answer is “never,” I don’t believe you -- and I don’t think it’s your fault, either. But the U.S. Court of Appeals for the 7th Circuit has a subtler view than mine. On March 25, it held that you’re not bound by a contract if it wasn’t made clear that you were supposed to read it. But if it is made clear, the contract binds you, whether you read it or not.
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Bloomberg
Speedy Trial, Slow Sentencing. That’s Not Justice.
An op-ed by Noah Feldman. The Constitution grants people accused of crimes the right to a speedy and public trial. Does that include a right to speedy sentencing after conviction? The Supreme Court takes up that question on Monday in Betterman v. Montana, the case of a defendant who had to wait 14 months in a county jail to be sentenced after pleading guilty. Then the court refused to include that period as time served. What’s most remarkable about the case is that not only Montana but also the federal government maintain that the speedy-trial right doesn’t include sentencing at all. The court has never said so before – although to be fair, it also hasn’t said that sentencing is part of the trial either.
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