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News@Law, 11/28/2016

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

The Washington Post
The Constitution lets the electoral college choose the winner. They should choose Clinton.
An op-ed by Lawrence Lessig. Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions  — most important, the electors themselves.
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ThinkProgress
Electoral College must reject Trump unless he sells his business, top lawyers for Bush and Obama say
Members of the Electoral College should not make Donald Trump the next president unless he sells his companies and puts the proceeds in a blind trust, according to the top ethics lawyers for the last two presidents...Eisen’s conclusions are shared by Harvard Law Professor Larry Tribe, one of the nation’s preeminent constitutional scholars. Tribe told ThinkProgress that, after extensive research, he concluded that “Trump’s ongoing business dealings around the world would make him the recipient of constitutionally prohibited ‘Emoluments’ from ‘any King, Prince, or foreign State’ — in the original sense of payments and not necessarily presents or gifts — from the very moment he takes the oath.” The only solution would be to divest completely from his businesses. Failing that, Tribe elaborated on the consequences:
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The New York Times
Trump Has Options for Undoing Obama’s Climate Legacy
President-elect Donald J. Trump has vowed to dismantle many of the signature policies put in place by the Obama administration to fight the effects of climate change...Under the control of the new administration, the office could slow President Obama’s latest regulatory initiatives by repeatedly sending them back for additional work. “It has been a brake on agency regulation throughout its lifetime,” said Jody Freeman, a professor at Harvard Law School and an expert on environmental regulation. “Some presidents have used it as more of a brake than others.”
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The Jerusalem Post
An open letter to Ivanka Trump
An op-ed by Alyson Warhit `17. Dear Ivanka, You don’t know me, but last year I passed you on Fifth Avenue outside of Trump Tower. I was on the way to my job and you were presumably on the way to yours. I had the impulse to stop you and talk with you, woman to woman, about the role you were playing in your father’s campaign. I wanted to plead with you to denounce your father’s hateful rhetoric and to honor the Jewish values that you adopted upon your conversion. I wanted to implore you to use your newfound public platform for good. But instead, I kept walking. I told myself that I shouldn’t hound a complete stranger on the street to tell her things she probably already knows. I assumed your relationship with your father’s campaign was complicated and in due time you would say that a ban on Muslims entering the country was certainly not in line with your values as an American or as a Jew. I knew that you would condemn the way your father talked about immigrants, women, veterans and the disabled. She’ll come around, I told myself.
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The Harvard Crimson
Law Professor Included on Conservative Nonprofit’s ‘Watchlist’
Law professor Mark V. Tushnet ’67 landed on a “watchlist” of liberal professors created by the conservative nonprofit organization Turning Point USA last week. According to the group’s website, the goal of the list is to “expose and document college professors who discriminate against conservative students and advance leftist propaganda in the classroom.” Turning Point USA aims to instill conservative principles such as support of free markets and limited government in college students...Tushnet said he was unperturbed by his inclusion on the list. “It’s not a big deal,” he said. “It comes with the territory.”
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Bloomberg
The Presidency Can Bend to Fit Trump’s Personality
An op-ed by Noah Feldman. Donald Trump is inheriting a more powerful presidency than any of his predecessors. And if history is any guide, he will seek to expand the power of the office. But how will he do it? One clue lies in noticing how the personalities of the last two presidents were reflected in their techniques of expansion. Barack Obama’s administration took a very different route to its expansion of executive authority than did George W. Bush’s -- and Trump’s will probably be different still.
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Harvard Gazette
Trump and the law
As President-elect Donald Trump prepares to take office in January, the legal community has begun to ponder and prepare for the changes the incoming administration may make...Adrian Vermeule ’90, J.D. ’93, the Ralph S. Tyler Jr. Professor of Constitutional Law at HLS, sees two possible prospects for administrative law under Trump. One involves what he called “bipartisan retrenchment.”...Four major signposts during the first 100 days will show whether the Trump administration will transform executive authority or not, said Cass Sunstein, the Robert Walmsley University Professor at Harvard. First, how does the Trump administration handle ostensibly independent regulatory commissions such as the Security and Exchange Commission or the Federal Reserve?...With the executive branch’s role leading the trends in America’s criminal justice system and criminal justice reform, the effect that Trump’s presidency will have in this realm, given that his positions on a number of issues are either unformed or shifting, is still unknown, said criminal law professor Andrew Crespo.
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WBUR
The Obama Administration Remade Sexual Assault Enforcement on Campus. Could Trump Unmake It?
...What is an adequate solution for the dark and persistent threat of sexual violence on campus? And what should colleges and universities expect from a very different administration, headed by a president who has himself been accused of sexual assault?...But the Obama approach has its critics. Harvard Law professors Jeannie Suk and Jacob Gersen say it resulted in a “sex bureaucracy,” placing more and more ordinary behavior under federal oversight. And feminist legal theorist Janet Halley, their colleague who has contested the OCR's process in the Harvard Law Review, describes the “Dear Colleague” letter as a case of “administrative overreach.” Halley, who has participated in sexual-violence cases at Harvard, has had concerns about their fairness from the beginning. She took pains to say that she cares deeply about sexual assault, but she worries about an overcorrection, prompted by OCR, that moves universities from ignoring the rights of accusers to trampling on those of the accused.
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Bloomberg
Fake News May Not Be Protected Speech
An op-ed by Noah Feldman. In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins -- at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing. The rise of fake news therefore poses a serious challenge to our basic ideas about the First Amendment. Much of the debate in recent weeks has focused on social media and search engines. But whether the market for ideas is failing is more fundamental than whether Facebook or Google can be blamed for algorithms that promote and spread false stories.
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Marketplace
This arcane constitutional clause could be trouble for Trump (audio)
The Foreign Emoluments clause of the U.S. Constitution — you might have skipped over it in social studies — says that no person holding any office of profit or trust can receive gifts from foreign powers. The idea was to prevent meddling in U.S. policy by other nations. Some scholars [including Laurence Tribe] argue it doesn't apply to the president, but presidents have certainly acted as if it does. And many scholars say it and statutes like it are a mine field for the future Trump Presidency.
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Salon
“FOIA superhero” launches campaign to make Donald Trump’s administration transparent
“This could be one of the most unrestrained governments that we’ve seen in this country in who knows how long,” Ryan Shapiro warned. Shapiro has been described as a “FOIA superhero” — one of his many monikers. The punk-turned-transparency advocate has filed thousands of Freedom of Information Acts requests and sued major government agencies over their refusals to abide by transparency laws. Now he has his sights set on the impending administration of President-elect Donald Trump...When he is not filing FOIA requests, writing his dissertation for MIT or listening to hardcore punk, Shapiro is also a research affiliate at Harvard University’s Berkman Klein Center for Internet & Society.
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The Guardian
A recipe for scandal’: Trump conflicts of interest point to constitutional crisis
Constitutional lawyers and White House ethics counsellors from Democratic and Republican administrations have warned Donald Trump his presidency might be blocked by the electoral college if he does not give up ownership of at least some of his business empire....Harvard constitutional law professor Laurence Tribe said in an email that the “electors who are to cast their votes for president on 19 December not as automatons but in light of constitutional constraints and principles cannot in good conscience vote for Donald Trump as president of the United States unless he fully divests himself of economic interests dependent on the fortunes, for good or ill, of the private Trump empire”.
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