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News@Law, 12/19/2016

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

The Harvard Crimson
Law School Professor Claims to Have Flipped 20 Electoral Votes
Continuing years of long-shot efforts to reform the American electoral system, Harvard Law School professor Lawrence Lessig said Tuesday that at least 20 Republican members of the Electoral College may not cast their votes for President-elect Donald Trump. Since Donald Trump’s upset victory in the 2016 presidential election, Lessig, who briefly ran for the Democratic presidential nomination, and his anti-Trump group, "Electors Trust," have been working to offer legal advice to members of the Electoral College who are considering voting for a candidate that did not win the popular vote in their state...Law School professor Michael J. Klarman wrote in an email that he finds it unlikely that electors will actually vote against Trump, citing the personal consequences and logistical difficulties as barriers to flipping votes. “People are picked as electors because of their partisan reliability. The personal consequences—including death threats, I suspect, and certainly the end of their political careers—would be enormous,” Klarman wrote. “The system was intentionally designed to make it difficult to coordinate among the electors and to enforce any agreement among them.”
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The American Prospect
The Case for Resistance
An op-ed by Randall Kennedy. Donald J. Trump will be the next president of the United States. That is sobering because he is glaringly unsuited for any significant public office, much less the most important in our country and indeed the world. Nothing about his pre-candidacy record recommends him. To the contrary, it is so lacking in relevant achievement, so marred by embarrassment, that many onlookers thought that his run for the presidency was nothing more than a publicity stunt. Then his campaign itself was so repulsive, so saturated with bigotries of various sorts, so ostentatiously crass, so glaringly demagogic, that it prompted many leading figures in his own party to repudiate him.
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Bloomberg
Lessons From a Dark Year in Syria
An op-ed by Noah Feldman. The fall of Aleppo at the close of 2016 signals an especially depressing future for the civil war, the region, and the vast number of refugees within Syria and beyond. For all practical purposes, the end of this battle means that the Syrian dictatorship has, with Russian help, won its war for survival. However, there is no clear path for the Assad regime to wipe out the last of the rebels.So fighting will continue, and a rump Syrian Sunni statelet will persist. And because displaced Sunnis will remain deeply wary of going home to places now controlled by the hostile regime, the long war's refugee problem may become permanent. That's no small matter. In scope it dwarfs the Palestinian refugee crises of 1948 or 1967.
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Boston.com
Here’s why Somerville shouldn’t be too worried about Trump pulling its federal funding
Shortly before the election, President-elect Donald Trump laid out a 100-day plan articulating his administration’s top priorities. Of the 18 commitments, one concrete pledge hit very close to Boston’s borders. “Cancel all federal funding to sanctuary cities.” Somerville—like its neighbor, Cambridge—is considered a “sanctuary city,” a catch-all term for cities that do not cooperate with federal efforts to detain undocumented immigrants...“The federal government cannot use its taxing and spending powers to coerce states and local governments to enact, administer, or enforce federal law,” Harvard Law School professor Phil Torrey told Boston.com Torrey, whose background is in immigration law, says it would be “difficult, if not impossible” for Trump to force sanctuary cities to enforce federal immigration efforts at the risk of losing large amounts of federal funding.
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CNN
Why it could be good for Trump to skip some intelligence briefings
As he does with considerable regularity, Donald Trump has elevated the eyebrows of the foreign policy establishment with his practice of undergoing intelligence briefings only once a week on average, instead of daily. Now his team says that he is getting the President's Daily Brief three times a week, along with daily briefings from his appointee for national security adviser...Jack Goldsmith, an avid consumer of the process when he was in the Bush administration, stresses that, "It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch." Former CIA Director George Tenet says that, "Virtually every day you would hear something about a possible impending threat that would scare you to death." This, writes Goldsmith, captures "the attitude of every person I knew who regularly read the threat matrix." Every person.
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NBC News
What Could a Trump Administration Mean for the Environment?
As Donald Trump continues to announce administration roles, environmental experts and advocates are sounding the alarm over what they say are "extreme" selections that will put the government at odds with science and the health of the Earth..."You look at that set up and it's not a recipe for optimism," said Jody Freeman, a former counselor for energy and climate change in the Obama White House and director of Harvard's Environmental Law Program. "I think there's this undercurrent of threatening the legitimacy of climate science and I think that's very dangerous."
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Harvard Magazine
A Conservative Counterrevolution
...In his new book The Framers’ Coup, Michael J. Klarman explains how this brief, geographically isolated, and seemingly thwarted uprising fundamentally shaped American governance. The Bancroft Prize-winning legal historian and Kirkland & Ellis professor of law writes, “Shays’s Rebellion played a critical role in the creation of the Constitution.”
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Harvard Magazine
The Watchers
Do people behave differently when they think they are being watched?...Jon Penney was nearing the end of a fellowship at Harvard Law School’s Berkman Klein Center for Internet & Society in 2013, and he realized that Snowden’s disclosures presented an opportunity to study their effect on Americans’ online behavior...“The fact that you won’t do things, that you will self-censor, are the worst effects of pervasive surveillance,” reiterates security expert Bruce Schneier, a fellow at the Berkman...Bemis professor of international law and of computer science Jonathan Zittrain, faculty chair of the Berkman Klein Center, worries that the ubiquity of privacy threats has led to apathy. When a hacker released former Secretary of State Colin Powell’s private assessments of the two leading presidential candidates prior to the recent election, “I was surprised at how little sympathy there was for his situation, how it was treated as any other document dump,” Zittrain explains.
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Politico
Legal clash brewing over threat to remove Colorado electors
Colorado’s Republican secretary of state is brushing aside a federal ruling that questioned his authority to remove presidential electors who defy the statewide popular vote, setting up a potential legal clash less than two days before the Electoral College meets to choose the president...Lemley is part of Electors Trust, a group of prominent constitutional lawyers — including Harvard University’s Larry Lessig — advising electors who wish to break from Trump. They celebrated Friday’s appeals court decision as the first evidence ever issued by a federal court to suggest electors may be constitutionally free to vote for whoever they want...Laurence Tribe, who isn’t officially affiliated with the group but has lent support, agreed that the 10th Circuit ruling should take precedence over Colorado’s law. “This is a federal constitutional issue. The text of Article II and the 12th Amendment, and the reasoning of the U.S. Court of Appeals for the 10th Circuit, carry far more weight than the state court's opinion here,” he said.
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Financial Review
Donald Trump attacked bribery law hanging over Rio Tinto
The strict anti-bribery law that United States authorities could apply against resources giant Rio Tinto was once attacked by Donald Trump as a "horrible" rule that "should be changed". Rio has self-reported to US law enforcement agencies a $US10.5 million payment to a Guinean government-linked consultant who five years ago helped smooth the passage of an iron ore project in West Africa...Harvard Law School professor Matthew Stephenson said Mr Trump might seek to work with the Republican-controlled Congress to weaken the anti-bribery law or "place substantially less emphasis on FCPA enforcement".
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The Guardian
Donald Trump will violate the US constitution on inauguration day
An op-ed by Laurence Tribe. When Donald Trump swears at the inauguration that he will “faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the constitution of the United States”, he will be committing a violation of constitutional magnitude. The US constitution flatly prohibits any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”.
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Lexington Minuteman
Senator Mike Barret, D-Lexington, wants presidential candidates’ tax returns to run for office in Massachusetts
Up to five years of tax returns could be required to run for president in Massachusetts in 2020 if state Sen. Mike Barrett has anything to do with it...Larry Tribe, a professor of constitutional law at Harvard University, told The Minuteman Barrett's efforts are a step forward in financial and political transparency. "Senator Mike Barrett's tax-return-release bill is just the kind of effort through which the Commonwealth can set an example of good government for the rest of the nation to follow," Tribe said in an email. "I congratulate Mike on his creativity and on the care he's taking to meet all federal constitutional requirements."
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Bloomberg
Closing the Safe Harbor for Libelous Fake News
An op-ed by Noah Feldman. As things stand, Comet Ping Pong, the Washington restaurant falsely smeared as a hub for child sex trafficking in the Pizzagate mess, doesn’t have much in the way of a legal remedy. It could sue the anonymous conspiracy theory purveyors for libel, but even if it can find them, they probably don’t have any money to recover, and the damage to the restaurant’s reputation is already done. In Europe, however, things might be different. The European Union recognizes a “right to be forgotten” on the internet, which under some conditions allows posts to be removed or blocked from search engines. Extending that kind of right to the American victims of demonstrably false news stories might actually help victims like Comet Ping Pong, who’ve been tagged with a falsehood that otherwise just won’t go away.
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