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News@Law, 11/16/2016

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
Should the Electoral College Be Abolished?
An op-ed by Charles Fried. We have a direct democracy: Senators, representatives and members of the Electoral College are all elected directly by the people. They do not, however, elect the president directly. This is a feature of the kind of government we have chosen from the beginning in which the states are important subsidiary (in some instances, primary) units of government.
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Harvard Gazette
What’s next for climate change policy
Regulations to fight climate change likely will be casualties of the incoming Trump administration, but environmental experts taking stock of the changing American political landscape said that work in the field will continue elsewhere and that a broad-based rollback of U.S. environmental protection will prove easier said than done...“Trump could unilaterally withdraw from the Paris Agreement, renouncing U.S. leadership on international climate negotiations. And he could try to rescind or weaken some important regulations, like the Clean Power Plan,” said Jody Freeman, the Archibald Cox Professor of Law and director of Harvard Law School’s Environmental Law Program. “But any effort to fully unravel the substantial and meaningful regulatory initiatives of the last eight years will be long, complicated, and difficult, and in the end likely only partial because of the significant legal, political, and practical barriers to doing so.”
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The Washington Post
Why Facebook and Google are struggling to purge fake news
Facebook chief executive Mark Zuckerberg took to the social network’s website over the weekend to dispute allegations that “fake news” had tilted the election for Republican Donald Trump. “More than 99% of what people see is authentic,” he wrote, adding it was “extremely unlikely hoaxes changed the outcome of this election.”...Some civil-liberties experts said it was dangerous to push Facebook to take on a greater editorial role. “If we wouldn’t trust the government to curate all of what we read, why would we ever think that Facebook or any one company should do it?” said Jonathan Zittrain, faculty director at the Berkman Klein Center for Internet and Society at Harvard.
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Open Democracy
Trump and the limits of human rights
An op-ed by Samuel Moyn. The international human rights system, with its diverse global movements, is epoch-making, allowing stigma to be applied to errant states on matters of crucial global concern. But promoting its exclusive relevance in the face of injustice, as if the alternative were apathy or despair, is simply not going to cut it. In fact, the election of Donald Trump furnishes an opportunity to transcend the naïve celebration and apocalyptic criticism of international human rights in the name of balance about their true importance.
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Bloomberg
Blame the British Empire for the Electoral College
An op-ed by Noah Feldman. There are two truths about the Electoral College: It ought to be abolished, and it never will be. Calls for changing the constitutional election system abound now that Hillary Clinton has won the popular vote and lost the electoral vote, as Al Gore did in 2000. But it turns out that the same Constitution that enshrines the Electoral College effectively protects the small states from an amendment they don’t want. The problem goes back to the nation's founding -- and short of abolishing the states as effective sovereigns, it basically can’t be fixed.
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FactCheck
Could Electoral College Elect Clinton?
Q: Can the Electoral College elect Hillary Clinton on Dec. 19? A: Yes, it may be constitutionally possible; but no, it will not happen, according to election experts....“Presidential Electors are theoretically free to vote as their consciences dictate, something the founders anticipated Electors would indeed do under Hamilton’s Electoral College invention,” Laurence Tribe, a professor of constitutional law at Harvard Law School, told us via email. Tribe said the constitutionality of imposing a fine on a “faithless elector” is “open to doubt, and it is even more doubtful that a court would compel any Elector to be ‘faithful’ to the State’s winner-take-all outcome.
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Rhode Island Public Radio
Report: State Medicaid Programs Illegally Restrict Access To Hep C Drugs
State Medicaid programs – including Rhode Island – fail to provide enough access to cures for hepatitis C. That’s the conclusion of a new report from Harvard Law School’s Center for Health Law and Policy Innovation and the National Viral Hepatitis Roundtable. The authors say restricting treatment is illegal. New hepatitis C medications are expensive. That’s why state Medicaid programs like Rhode Island’s restrict access. Patients must have a high level of liver damage. And be abstinent from drugs and alcohol. And only specialists can prescribe. All of that is illegal, says Robert Greenwald with the Center for Health Law and Policy Innovation at Harvard Law School. “Medicaid programs have an obligation under the law to provide medically necessary care. And that cost alone cannot be a justification for access to care.”
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Bloomberg
Republicans Have Two Terrible Ideas for Regulatory Reform
An op-ed by Cass Sunstein. Republicans, including President-elect Donald Trump, have some eminently sensible proposals for regulatory reform. But the party is also pressing two terrible ideas, which seem to have a significant chance of being enacted in 2017. The irony is that both of them would be damaging to the Trump administration itself.
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Associated Press
U.S. urges stronger security for internet-enabled devices
The Obama administration urged companies on Tuesday to make millions of devices safe from hacking, underscoring the risks posed by an increasingly bewildering array of internet-connected products permeating daily life, covering everything from fitness trackers to computers in automobiles. In a report obtained by The Associated Press, the Homeland Security Department described runaway security problems with devices that have been made internet-capable in recent years...To prevent more attacks, the government must increase security regulations for “what are now critical and life-threatening technologies,” according to Bruce Schneier, a fellow at the Berkman Center for Internet and Society at Harvard Law School and a well-known cybersecurity expert. “It’s no longer a question of if, it’s a question of when,” Schneier said in prepared remarks for the hearing.
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Lifezette
Renegotiating NAFTA: How Trump Delivers
Although President-Elect Donald Trump was clear about the North American Free Trade Agreement on the campaign trail — he wanted major changes — how the issue unfolds is far from certain...“In practice, it’s going to be extremely hard because once a deal is done … all sorts of relationships are built,” said Elaine Bernard, executive director of the Labor and Worklife Program at Harvard Law School. “Unwinding all that is difficult.” What’s more, Bernard said, about 90 percent of the provisions of NAFTA were contained in the Canada-United States Free Trade Agreement that preceded it. “Which one is he going to undo?” she said.
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The Washington Post
Donald Trump’s threats work better on some countries than others
Mexico may have reason to fear Donald Trump’s tough talk on trade...Even the smallest of these percentages represent a massive volume of trade. But while a dislocation from the U.S. export market would be highly damaging the Chinese economy, it could be catastrophic for Mexico. “It’s a question of your alternatives to negotiating,” said Daniel Shapiro, director of the Harvard International Negotiation Program and author of “Negotiating the Nonnegotiable.”
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