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News@Law, 02/03/2017

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

Harvard Gazette
Gorsuch forecast: A more serene Supreme
Much of the response to President Donald Trump’s nomination of Judge Neil M. Gorsuch for the Supreme Court has centered on the 1991 Harvard Law School grad’s similarity to the justice he would replace, Antonin Scalia, who died last year. But the two diverge in at least one important respect, says Charles Fried, the Beneficial Professor of Law. “You won’t get any of the personalized attacks that Scalia was famous for,” said Fried. “He [Gorsuch] is not sarcastic and he is certainly not further to the right than Scalia was … his manner is much less aggressive and much more respectful of the people he disagrees with.”...Jane Nitze, J.D.’08, Climenko Fellow and Lecturer on Law at HLS, clerked for Gorsuch from 2008 to 2009, getting to know both his judicial philosophy and his character. “What struck me was his real, genuine reverence for the Constitution and the rule of law that came through on a daily basis,” said Nitze...For Richard Lazarus, Howard and Katherine Aibel Professor of Law, Gorsuch was “the single most qualified person” on Trump’s list of 21 potential nominees, a judge “who is smart and has integrity.”
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First Things
The Flight 216 Selection
An op-ed by Adrian Vermeule. Judge Neil Gorsuch is a walking, talking Hollywood writer's pitch: “I've got it! Antonin Scalia meets Jimmy Stewart!” Gorsuch, who famously resembles Stewart, complete with lanky charm, also has the intelligence, skills, and pen of a worthy successor to Scalia. His opinions are clear, amusing, pointed, and legally acute. Scalia could reach greater heights of prose style, sometimes with an acid brilliance that Gorsuch is perhaps too courtly to employ. On the other hand, lower-court judging is a cramped stage, and a Justice Gorsuch would have more scope to unfurl his indisputable talents.
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Slate
The Nervous Civil Servant’s Guide to Defying an Illegal Order
An op-ed by Ian Samuel. Imagine you’re a midlevel staffer in a federal department—any federal department. You come into work one morning in your drab Washington office and learn that President Donald Trump has signed an executive order that directly affects your job. Reading the order, you realize that to fulfill it, you’d need to act in a way you’re not comfortable with. In fact, the thing Trump’s asking you to do might be illegal. What now?
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The Christian Science Monitor
Report: Populist leaders often add to corruption they vow to remove from governments
From the Philippines to Britain, 2016 was a year of political shake-ups, with voters in several countries across the globe ushering populist candidates or policies into office to combat inequality and "politics as usual," often highlighting corruption in the "insider" system they opposed. But in the push to reform their countries, such politicians can play a role in further corrupting government offices, a new report cautions, leading to continued social disparities and decreased transparency...“We’re seeing a wave of voter anger sweeping across a lot of democratic systems,” Kim Lane Scheppele, a sociology and international affairs professor at Princeton University [and visiting HLS professor], tells the Monitor. “Sometimes they’re upset with corruption, sometimes it’s deadlock, sometimes the sense that whoever they vote for, nothing changes. Then, they become willing to vote for the appeals of these populist leaders who say, ‘I am the state, I am your voice.’ ”
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Backchannel
Here’s Exactly How the Internet Is Now Under Threat
An op-ed by Susan Crawford. When President Obama nominated Tom Wheeler as the 31st chairman of the Federal Communications Commission (FCC), some activists were wary because of his background as an advocate for cable and wireless interests. But as a friend of his, I was confident that he would be a strong leader, and he did not disappoint me. In fact, I consider Tom Wheeler the most consequential FCC chairman since the early 1960s, when a 35-year-old Newton Minow went to the Sheraton Park Hotel — to the lion’s den, the National Association of Broadcasters — and told those all-powerful broadcasters that they were supposed to be serving the public interest. For all the diversity of content that we have today, one can argue that in terms of concentrated power over communications, we’re not much different — four companies strive to dominate what we see and hear. As commissioner, Tom Wheeler told those four companies that they should be serving the public interest as well.
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Bloomberg
Snap’s Concentrated Power Structure Takes a Page From Old Media
Snap Inc. often likens its app to a new form of television. It’s also borrowing from the playbook of traditional media companies to create a small circle of power in its top ranks...“Snap is doing something I have not seen before: creating and issuing non-voting shares at the IPO,” said Jesse Fried, a professor at Harvard Law School. “After the IPO, Snap can issue additional non-voting stock to employees or other parties without eroding the founders’ control rights.”
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The Canadian Press
No sign Trump immigration order will impact asylum system, Liberals say
Donald Trump's suspension of refugee resettlement doesn't appear to affect the U.S. asylum system, negating any need for Canada to revisit how the two countries handle asylum claims at the border, the federal Immigration Department says...The orders call for increased detention and an expansion of the criteria for the expedited removal of undocumented immigrants. Critics say they also put undocumented immigrants at risk for criminal charges. "There is no way the U.S. is a safe third country of asylum," said Deborah Anker, the director of Harvard law school's immigration and refugee clinical program.
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ReVista
Protecting Central American Families: Harvard Immigration and Refugee Clinic
An article by Maggie Morgan and Deborah Anker. All Maribel had wanted was to work in a beauty salon in her home country of Honduras, maybe one day doing well enough to open a salon of her own...Several years later, sitting almost 4,000 miles away in a legal office, on a gray day in Cambridge, Massachusetts, Maribel related her story to her attorney in preparation for her asylum hearing. She is one of many tens of thousands of Central American women and children who have fled to the United States since 2014, seeking safety from the unrelenting gang and gender-related violence roiling their home countries. Our attorneys and law students at the Harvard Immigration and Refugee Clinic (HIRC) represent Maribel and many clients with similar stories from this region.
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Los Angeles Times
Trump’s EPA pick poised to survive Senate fight, but his brewing battle with California will be harder to win
President Trump’s nominee to run the Environmental Protection Agency survived a rancorous committee vote Thursday, putting him on the path to full Senate confirmation and a confrontation with California. Scott Pruitt, who oil and gas companies are betting will help them reassert dominance over the energy economy, has cast doubt on California’s power to force automakers to build more efficient, cleaner-burning cars...Many such provocations by past administrations eager to flex their executive muscle have gone sideways. They have bogged previous White Houses down in years-long, politically bruising regulatory and legal disputes, during which the president who set out to teach an early lesson to assertive states ends up getting schooled by them. “Announcing that you are going to give your supporters what they want by picking off a few high-profile policies and rescinding them is really easy,” said Jody Freeman, a professor at Harvard Law who served as White House counselor for energy and climate change under the previous administration. “Doing it is much harder.”
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Bloomberg
Churches Break Politics Rule All the Time. So End It.
An op-ed by Noah Feldman. Two weeks into the Trump administration, progressives can be forgiven for starting to think that anything the president proposes is constitutionally suspect. Donald Trump’s call to repeal the Johnson amendment, a law that bars religious organizations from political action on pain of losing their tax-exempt status, is different. The Johnson amendment may arguably have relied on the idea that religion and politics can be strictly separated. But it’s always been difficult to enforce, and the basic premise is flawed.
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KJZZ
Could Roe V. Wade Survive A More Conservative High Court? (audio)
The Supreme Court case Roe v. Wade is one of the most controversial the justices have ever considered. Since the 1973 decision, it has been a lightning rod, causing emotional and political reactions on a regular basis. But what did the high court’s decision actually do? And could Roe survive a more conservative court? We talked about that with Harvard Law Professor Glenn Cohen, an expert in reproductive technology and related topics.
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Harvard Gazette
Queries, and support, on travel concerns
...These were only two of the questions raised by members of the Harvard community on Wednesday afternoon when representatives of the Harvard International Office, the Office of the Vice Provost for International Affairs, and Harvard Law School’s Immigration and Refugee Clinic held a town hall to offer information and perspectives in light of the new Washington administration’s executive orders on immigration and refugees....Elements of that action, as well as practical advice, were then presented by fellow panelists Maureen Martin, director of Immigration Services at the Harvard International Office, and Jason Corral of the Law School’s Immigrant and Refugee Clinic, who had originally been hired to represent students who are undocumented, with DACA support...Executive orders, explained Corral, cannot make new law. In fact, if they contradict an existing law, that “law trumps the order,” he said, to laughter.
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Bloomberg
There’s No Quick Fix to Trump’s Immigration Ban
An op-ed by Noah Feldman. The high-speed cycle of the first 24 hours after President Donald Trump’s executive order banned immigration from seven Muslim-majority countries is giving way to the long, hard slog of legal reality. A State Department memo made public in court proceedings Wednesday reveals that the Trump administration revoked all visas from those countries on Friday, Jan. 27, the day of the order. That revocation, the essence of the immigration ban, remains in place. As a result, the federal judicial orders against the ban are ineffectual -- because no one from the seven countries has been allowed to board a plane to the U.S. since the day the memo was issued. The lesson for the next four years is brutally clear. Excited resistance was inspiring, and the symbolic image of the courts working after hours to freeze the immigration order will persist. But the actual fight over the effects of Trump’s order, like the rest of his policies, is just getting started. And without slow, patient effort to work within the legal system, the fight cannot be won.
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NBC News
Analysis: Trump’s ‘America First’ Vision Could Upend Postwar Consensus
In his first two weeks in office, President Donald Trump's "America First" pledge has proven more than an idle slogan. In word and deed, the White House has signaled an aggressive unilateral stance toward the world that's antagonized allies abroad and divided supporters at home..."Treating the system like its optional, or that it doesn't have any important function at the moment, is more dangerous than trying to destroy it deliberately," Kim Lane Scheppele, a professor of international affairs at Princeton University [and visiting professor at HLS], said. "He doesn't use the international system to signal to others 'Hey, this is serious, this is not so serious,' so he becomes extremely unpredictable on the world scene."
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