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News@Law, 02/07/2017

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
In Search of the Slave Who Defied George Washington
The costumed characters at George Washington’s gracious estate here are used to handling all manner of awkward queries, whether about 18th-century privies or the first president’s teeth. So when a visitor recently asked an African-American re-enactor in a full skirt and head scarf if she knew Ona Judge, the woman didn’t miss a beat. Judge’s escape from the presidential residence in Philadelphia in 1796 had been “a great embarrassment to General and Lady Washington,” the woman said, before offering her own view of the matter...“He’s a much more mythic figure than Jefferson,” said Annette Gordon-Reed, the author of “The Hemingses of Monticello” and a Harvard professor. “Many people want to see him as perfect in some way.”But his determined pursuit of Judge, she said, as much as his will freeing his slaves, reflects the basic mind-set of slave owners. “It’s saying, ‘Whatever I might think about slavery in the abstract, I should be able to do what I want with my property,’” she said.
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NBC News
Experts: Trump Undermines Judiciary With Twitter Attack on Judge Robart
President Donald Trump's personal attack on the federal judge who blocked his controversial travel executive order could undermine public confidence in an institution capable checking his power, say legal experts...Harvard Law Professor Jack Goldsmith said on his blog that Trump's order actually has a "surprisingly strong basis in law but was issued in haste, without proper inter agency coordination, without proper notice, without adequate consideration of its implications." But, Goldsmith added, Trump's aggressive tweets "will certainly backfire." "The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with the significant deference to the President's broad delegated powers," he wrote. And yet, having a judge strike down the executive order might have been exactly what Trump was aiming for, Goldsmith wrote — "assuming that he is acting with knowledge and purpose." "The only reason I can think of is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration," Goldsmith wrote.
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The Washington Post
How the fight over Gorsuch could keep Justice Kennedy from leaving the Supreme Court
...Democrats should take a page out of the Republican playbook and fight President Trump over his nominee to the Supreme Court, not the nominee himself. And the very practical reason for this tactic came to light during my interview with renowned Harvard Law School professor Laurence Tribe. In the theater that will be the battle over federal judge Neil Gorsuch, only one person watching the drama will matter: Justice Anthony M. Kennedy. Just due to the age of the justices, Tribe thinks there could be three vacancies that need to be filled during Trump’s presidency. But Tribe focused on Kennedy. And because he is the Supreme Court’s swing vote, the battle to seat his successor is bound to make all other confirmation fights look tame. But, as Tribe explained, Kennedy’s decision to retire could hinge on how messy the Gorsuch confirmation battle gets.
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NPR
What If ‘Something Happens’ After Judge’s Ruling On Trump’s Travel Ban?
If a refugee commits a crime, will a federal judge have blood on his hands? President Trump says yes...But suppose that "something happens" with one of the new arrivals. Who knows; an individual could become radicalized. It would be understandable for some to blame the "court system"— understandable but wrong, according to Harvard Law School professor Charles Fried. He was the solicitor general , the government's official lawyer before the U.S. Supreme Court, during the Reagan administration. "If [an attack] were to happen it would be the fault of the law," Fried told NPR's Morning Edition, "because the judge would have determined that the law requires this." The job of the courts is to interpret the law — not to bend it to the demands of public officials.
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The New York Times
Idaho Judge Makes Celibacy Until Marriage a Condition of a Rapist’s Probation
In sentencing a 19-year-old who pleaded guilty to statutory rape last week, a judge in Idaho made clear his punishment would include an extra wrinkle: government-mandated celibacy. The unusual proclamation by Judge Randy Stoker of the Fifth District of Idaho that abstinence would be a condition of probation appears to be based at least partly on an archaic, rarely enforced state law that forbids premarital sex...Nancy Gertner, a lecturer at Harvard Law School and a former federal judge, said fornication laws often stay on the books only because they are enforced so infrequently that they have not been challenged. They would likely crumble under legal scrutiny, she said. She said fornication laws were seen as unconstitutional after the United States Supreme Court 2003 decision in Lawrence v. Texas, which was considered a landmark case for gay rights because it struck down state sodomy laws. At the same time, the decision codified a broader principle that decriminalized the private sexual behavior of consenting adults, Ms. Gertner said. While judges are free to impose specific limitations related to the crimes of those on probation, “there are limits that have to do with dignity and substantive due process,” she said. A judge could not force someone to get a lobotomy or a vasectomy, and limiting a person’s private sex life struck her as a similar overreach.
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Wired
Tech Giants Have the Legal Clout to Help Stop Trump’s Refugee Ban
If the #DeleteUber campaign taught the tech industry anything, it’s that trying to stay neutral on President Trump’s refugee ban can quickly turn into a marketing catastrophe. Little wonder then that late last night, 97 tech companies—including Apple, Facebook, Google, and, yes, Uber—filed a friend-of-the-court brief in the US Court of Appeals for the Ninth Circuit arguing against the ban. In the face of the outcry against Trump’s executive order, such a grand gesture makes for good optics. But legal experts say the brief is about more than Silicon Valley’s public image. In this case, tech’s support could help the plaintiffs prevail against Trump...the case is probably headed to the US Supreme Court, where business has influenced major decisions in the past. “In the most important affirmative action case decided by the Supreme Court in recent years, Grutter v. Bollinger, a brief from the Business Roundtable and another from the military are known to have made a significant difference,” says Laurence Tribe, a professor at Harvard Law School.
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The Harvard Crimson
A Chorus of Diverse Voices
ImeIme A. Umana ’14’s historic election as the first black woman president of the Harvard Law Review is one deserving of heartfelt congratulations. We are gratified to see a woman of color breaking barriers in such a high-profile position, and believe that her election shows young girls of color around the country that their futures have limitless potential. Umana is an inspiration to these girls, and this in itself is an admirable path of scholarship and public service. We hope that other girls will similarly run for leadership positions in organizations where they once were not even allowed in the door. Amid the celebration of Umana’s achievement, however, we must not too hastily extrapolate a broader societal point. Too often, media attention focuses on the individual accomplishments of minority students, holding them up as emblematic of broader holistic progress towards equality. This narrative, however, overlooks the disparities that continue to plague our society.
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Boston Herald
GOP senators take lead
A letter by Ryan Cohen `17 and more than 100 HLS students. We are writing to commend U.S. Sens. John McCain (R-Ariz.), Lindsey Graham (R-S.C.), and Benjamin Sasse (R-Neb.) for their leadership in these troubling times (“Trump’s ban of refugees, travel from seven Muslim nations sparks chaos, protests,” Jan. 29). As a diverse group of students with political views on both sides of the aisle, we are heartened to see elected officials who are willing to stand up for what is right, irrespective of politics. Decisions that impact many individual lives as well as our national security should not be made lightly, and should account for the rights and values upon which our nation is built. We hope that other Senate Republicans follow these senators’ lead by speaking out in the face of irresponsibility and injustice, and thereby faithfully serving the nation that has elected them to represent it.
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The Harvard Crimson
Law Clinicians, Faculty Sign Amicus Brief Against Executive Order
Four Harvard faculty members joined in filing an amicus brief in a federal appeals court Sunday night to support another legal challenge to President Donald Trump’s immigration order. Over 200 law professors and clinicians signed the brief filed in the Ninth Circuit Court of Appeals by Fatma Marouf, a Harvard Law School alumna and Director of the Immigration Law Clinic at Texas A&M; University School of Law...Harvard Immigration and Refugee Clinic Director Deborah E. Anker worked with Marouf— her former student—to draft the brief, and assistant director Sabrineh Ardalan helped compile signatures. Anker, Ardalan, Law School professor Bruce Hay, and School of Public Health professor Jacqueline Bhabha are all signatories. The law professors and clinicians argue that their “first-hand” experience working with clients makes their perspectives relevant to the case. The executive order “creates a serious risk of irreparable harm to our clients, students, and colleagues who have nonimmigrant (temporary) visas at United States universities,” they charge.
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Law Newz
Harvard Law Prof: Trump’s Handling of Immigration Order Could be Grounds for Impeachment
Constitutional Law Professor Laurence Tribe, a renowned professor at Harvard Law School, believes that President Donald Trump‘s handling of the litigation surrounding his controversial executive order on immigration could end up being grounds for impeachment...Tribe is specifically referring to allegations that the Trump administration purposely slow walked a Virginia judge’s order to provide travelers detained at Dulles airport last weekend with lawyers...This could well be deliberate and knowing failure by the President to comply with a facially lawful court order,” Professor Tribe explained to LawNewz.com.
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The Atlantic
Containing Trump
...The 45th president, Donald Trump, might pose the gravest threat to the constitutional order since the 37th. Of course, he might not...“Civil society had a huge and unprecedented impact during the Bush administration,” [Jack] Goldsmith told me. The networks that constrained Bush are still there, and Trump has put them on red alert. “Every single thing he does will be scrutinized with an uncharitable eye,” Goldsmith said. “That’s true of most presidents, but it’s true to an even greater degree with Trump.”
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Motherboard
Why Did the USDA Delete Thousands of Animal Abuse Records From Its Website?
Late last week, the Department of Agriculture quietly scrubbed thousands of public records about animal abuse from its website, a move that's left animal rights groups and open-government advocates fuming...Delcianna Winders, the academic fellow at Harvard University's Animal Law & Policy Program, told me over the phone that the documents in the database were already redacted to remove private information such as signature and contact information. Winder calls the government's explanation for why they were removed from the USDA's website "Orwellian" and has filed a FOIA request for all the communication around this decision to try to find out precisely what prompted the removal. "This is a really loud signal that the assault on transparency isn't just about hot topics like climate change," said Winders, "but even something we all agree on, that's pretty innocuous, like animal welfare."
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The Washington Post
Laurence Tribe on why the judiciary is ‘our last best hope’ (audio)
When it comes to the study of the Constitution, there is no one better to talk to than Harvard Law School professor Laurence Tribe...Listen to the podcast to find out why I called Tribe the Beyonce of constitutional law professors, hear what he thinks Democrats should do about the nomination of Neil Gorsuch to the high court and what he expects the justices to do if presented with the legal excesses of Trump.
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Albany Times Union
Senate approves Rowan Wilson to Court of Appeals
I always hate talking about myself in a positive way,” said attorney Rowan Wilson [`84] when asked by state Sen. John Bonacic, the Republican chair of the chamber’s Judiciary Committee, if he has the temperament to become an associate judge on New York’s Court of Appeals. Lucky for Wilson, then, that he had been preceded by representatives of the state Bar Association and the Trial Lawyers association who called him an impressive nominee with experience in both commercial litigation and pro bono work at the Manhattan offices of the prominent law firm Cravath, Swaine & Moore.
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