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News@Law, 02/10/2017

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
Kellyanne Conway Promotes Ivanka Trump Brand, Raising Ethics Concerns
The White House on Thursday “counseled” Kellyanne Conway, one of President Trump’s top advisers, in an unusual show of displeasure after she urged consumers to buy fashion products marketed by Ivanka Trump, the president’s daughter. Legal experts said Ms. Conway might have violated a federal ethics rule against endorsing products or promoting an associate’s financial interests...Ms. Conway’s remarks amounted to “using your government position as kind of a walking billboard for products or services offered by a private individual,” said Laurence Tribe, a professor of constitutional law at Harvard. “She is attempting quite crudely to enrich Ivanka and therefore the president’s family.” [NYT Quotation of the Day.]
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The Boston Globe
The Fiduciary Rule is a Friend of Capitalism
An op-ed by Charles Fried. Back when Elizabeth Warren was inveighing against sleazy mortgage brokers who were selling mortgages with low rates to unqualified home buyers — mortgages that would balloon to the unaffordable long after the brokers had collected their commissions — she was called out by one miscreant, who asked her if she believed in capitalism. Representatives of big banks and brokerages — not to mention members of Congress — are repeating this line of questioning in defending capitalism against the Department of Labor’s fiduciary rule, which they would like to repeal. The standard Marxist line on capitalism is that it is a sordid scene where the powerful, shrewd, and ruthless enrich themselves by systematically exploiting and immiserating their fellows. And that explanation does come close to describing the crony capitalist kleptocracies that blight many potentially prosperous but miserable nations. But that is not the true face of capitalism.
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NBC News
Donald Trump’s Feud With Nordstrom Sparks Warnings From Ethics Experts
President Donald Trump is known for shattering political precedent, but experts say the White House's war on Nordstrom for dropping his daughter's clothing line is ordinary behavior. Just not in America. "This is so common in so many parts of the world that perhaps we shouldn't be surprised it eventually happened here," said Matthew Stephenson, a Harvard law professor who studies international corruption. "I'm hoping we find a way to nip it in the bud before it gets out of control."
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Bloomberg
Kellyanne Conway’s Ethics Breach Is a Mild Outrage
An op-ed by Noah Feldman. White House counselor Kellyanne Conway broke federal ethics rules Thursday by endorsing Ivanka Trump’s clothing line -- that much is open and shut. If Conway worked for a regular government agency, she’d be temporarily suspended for a first offense, and fired for a second. But because her punishment depends on President Donald Trump, she has been “counseled,” not sanctioned. There’s a lesson here about difference between law and morals. It may seem worrisome that ethics rules can be so easily ignored by an administration that chooses to do so. But the truth is that, ultimately, ethics rules are only as good as the administration that applies them. If we don’t like the administration’s morality, we have only one real option: vote it out of office.
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Toronto Star
Ottawa should suspend Safe Third Country Agreement: Editorial
In 2004, the Canadian and U.S. governments signed a treaty to streamline their refugee systems. The Safe Third Party Agreement dictates that most refugees who first land in the United States cannot then claim asylum in Canada, and vice versa...The case for suspension is put forward obliquely but with particular force in a new report out of the Harvard University Law School. The authors chronicle the grave potential consequences of Trump’s three executive orders on immigration: the large-scale detention of asylum seekers, the removal of refugees without due process, the empowering of local officials to detain individuals on “mere suspicion” of immigration violations, the discrimination based on asylum seekers’ religion and nationality, among other inhuman and arguably unconstitutional outcomes. “We are not going to tell the Canadian government what to do,” the authors write, “but the finding that the U.S. is safe is wrong and unfounded, and should be blown out of the water.”
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The Crimson
Inside the Clinic Leading Harvard’s Response to Trump
Since Donald Trump won the presidential election in November 2016, everything’s been busier at the Harvard Immigration and Refugee Clinical Program...The clinic has also hired a new staff attorney, Jason Corral, to work full-time to support undocumented students on campus, and hired clinical instructor Cindy Zapata to oversee the clinic’s expanded programs. Staffers at the clinic also helped pen an additional amicus brief opposing Trump's order. In short, it’s been a hectic month. Maggie J. Morgan ’04, a clinical and advocacy fellow overseeing students at the clinic, said that although it is still unclear how the executive orders will play out, there is already much to do to support clients...As part of its approach to immigration and refugee rights issues, the clinic, in conjunction with the Harvard Immigration Project—a student practice organization at the Law School—has launched the Immigration Response Initiative, an umbrella project with nine sub-projects. Among its other initiatives, members of the project have created a sanctuary campus toolkit and FAQ for students about the immigration executive order, according to Amy E. Volz '18, a Law School student and the co-president of HIP...The clinic also released a report Wednesday called “The Impact of President Trump’s Executive Orders on Asylum Seekers,” written by staff and students affiliated with the clinic...The report has already gained significant traction in Canada, where legislators are considering suspending the refugee agreement, clinic director and Law School professor Deborah E. Anker said.
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The Economist
Internet firms’ legal immunity is under threat
Google, Facebook and other online giants like to see their rapid rise as the product of their founders’ brilliance. Others argue that their success is more a result of lucky timing and network effects—the economic forces that tend to make bigger firms even bigger. Often forgotten is a third reason for their triumph: in America and, to some extent, in Europe, online platforms have been inhabiting a parallel legal universe. Broadly speaking, they are not legally responsible, either for what their users do or for the harm that their services can cause in the real world...“The internet is no longer a discrete side activity,” says Jonathan Zittrain of Harvard Law School...The industry would naturally prefer self-regulation. Platforms not only have strong incentives to spot bad actors, but good information to identify them and the means to sanction in response, notes Urs Gasser of the Berkman Klein Centre for Internet & Society at Harvard University.
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Boomberg
Court’s Message to Trump: We Won’t Back Down
An op-ed by Noah Feldman. The decision by the U.S. Court of Appeals for the 9th Circuit upholding a nationwide freeze on Donald Trump’s immigration executive order is a powerful rebuff to the administration -- and to the president personally. The court went out of its way in its opinion released Thursday to emphasize the right and the duty of the judiciary to rule on the constitutionality of executive action, even when national security is on the line. The unanimous panel was unwilling to bow to the personal pressure that Trump aimed at it. And, tellingly, the most important recent precedents the court cited were written by Justice Anthony Kennedy, whose vote will be crucial if and when the case goes to the U.S. Supreme Court.
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WBUR
Gov. Baker Taps Appeals Court Judge For State’s Highest Court (audio)
An interview with Nancy Gertner. On Wednesday, Gov. Charlie Baker nominated state Appeals Court Judge Elspeth "Ellie" B. Cypher to serve on the Supreme Judicial Court. This is Baker's fourth nomination in just over two years. Cypher would fill the position held by Justice Margot Botsford, who will be retiring next month.
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Bloomberg
Trump Lawyers Get Ready: You’ll Be in Court a Lot
An op-ed by Noah Feldman. No matter how the U.S. Court of Appeals for the 9th Circuit rules, the legal challenges to President Donald Trump’s executive order on immigration from seven majority Muslim countries won’t be over. Not even close. That’s because, in addition to the case that currently has the policy on hold, a number of challenges to different aspects of the order by different kinds of plaintiffs are pending in courts across the country. This may seem perverse, given the need for a single immigration policy. But it’s the way challenges to federal action proceed almost all of the time, and it follows the same convoluted path as the arguments against the Affordable Care Act during Barack Obama’s presidency. Ultimately only the U.S. Supreme Court can impose uniformity throughout the federal judicial system. This system isn’t perfect, but it has stood the test of time.
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Politico
Saudis foot tab at Trump hotel
A lobbying firm working for Saudi Arabia paid for a room at Donald Trump’s Washington hotel after Inauguration Day, marking the first publicly known payment on behalf of a foreign government to a Trump property since he became president...Lobbying firms typically bill expenses to their client. “If that funneling could launder the emolument, the clause would become a dead letter,” said Laurence Tribe, a constitutional law expert at Harvard who’s also part of the lawsuit.
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The Boston Globe
Patrick’s SJC appointees heard his case
It’s not every day that a former governor comes before the Supreme Judicial Court, but that’s what happened this week in a case involving Deval Patrick. The Democrat, who left office in 2015, is accused by a former state employee of defamation and is fighting the charge. The unique case raised an equally unique question: Is it wrong for justices who were appointed to the court by Patrick to hear his case? No, said two legal experts. While there are extensive rules governing when justices can and should recuse themselves, this isn’t one of them... Nancy Gertner, a Harvard Law professor and former judge for the US District Court of Massachusetts, agreed, saying the judge would have to have been somehow involved in the case before he or she was on the bench. Gertner said that once a justice is appointed, he or she is expected to be impartial.
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The Washington Post
USDA removed animal welfare reports from its site. A showhorse lawsuit may be why.
...Their litigation is now being hailed by some Tennessee walking horse activists as the impetus for an abrupt USDA decision last week to pull from its public website all enforcement records related to horse soring and to animal welfare at dog breeding operations and other facilities...Under the Trump administration, the USDA, which does not yet have a secretary, took less than three weeks to approve the removal of records that had been available for at least seven years. “I think it was probably easier to make this wholesale shutdown under the new administration,” said Delcianna Winders, a fellow at Harvard University’s Animal Law & Policy Program who is deeply familiar with the database.
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