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News@Law, 10/24/2016

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

Bush v. Gore lawyer: Trump’s dangerous nonsense
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.
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NBC News
Cash Bail, a Centerpiece of the Justice System, Is Facing Its Undoing
...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."
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Harvard Gazette
A tension as old as the country
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.
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The Washington Post
This professor devotes her life to countering dangerous speech. She can’t ignore Donald Trump’s.
When Susan Benesch began looking at how speech could incite mass violence, her research took her to far-flung places like Kenya and Burma. Lately, she’s been unable to ignore a case study at home in the United States. The American University law professor and Harvard University faculty associate has grappled for months with whether Donald Trump’s rhetoric constitutes dangerous speech as she has come to define it...Rob Faris, director of the Berkman Klein Center at Harvard, where Benesch is a research associate, described her work as “innovative” in how it attempts to delegitimize dangerous speech rather than try to stifle it, thus protecting freedom of speech.
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On Nov. 9, Let’s Forget Donald Trump Happened
An op-ed by Noah Feldman. With Donald Trump’s chances of winning the White House narrowing, it’s not too soon to ask: If Hillary Clinton wins the presidency in November, what attitude should Democrats and Republicans alike take toward Trump voters? It will be tempting to excoriate or patronize them, or to woo them to your cause. But all of these approaches would be mistaken. A much better strategy -- for both parties -- is to engage in selective memory, and to treat Trump voters as though the whole sorry episode of his candidacy never occurred. That may seem counterintuitive, especially because there’s no doubt that Trump’s candidacy shows the system needs fixing. But it’s based on the solid intuition that Trump voters, many of them alienated already from mainstream party politics, will only be further alienated by anything that associates them with a candidate whose brand was victory and who delivered defeat.
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Why Losing Candidates Should Concede
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.
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The National Law Journal
‘Bush v. Gore’ Lawyers Sound Off on Trump’s Debate Comments
...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.”
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