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News@Law, 01/31/2017

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 Review Elects First Black Woman President
ImeIme A. Umana ’14 will be the first black woman to serve as President of the Harvard Law Review, the legal journal announced Monday. Umana, who hails from Harrisburg, Pa., will be the 131st leader of the organization. As a Harvard undergraduate in Lowell House, she earned a joint concentration in government and African American studies and served as the president of the Institute of Politics. Michael L. Zuckerman ’10, the outgoing president of the Law Review, wrote in an email that he is excited to see where Umana will take the publication in the coming year. “ImeIme is one of the most brilliant, thoughtful, and caring people I've ever met, and the Law Review is in phenomenally good hands,” Zuckerman wrote.
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Environment & Energy News
Legal world questions Trump’s 2-for-1 approach
President Trump's executive order to curb regulations may be impossible to implement, according to legal experts. Trump yesterday directed the White House Office of Management and Budget to provide guidance about how agencies could rescind two regulations for every one they publish. He also wants costs from new rules issued in 2017 to be offset with cuts to past regulations. Jody Freeman, director of the environmental law program at Harvard Law School, called the two-for-one regulation strategy "arbitrary, not implementable and a terrible idea." Freeman said the order notes agencies should follow through "to the extent permitted by law" and noted a president cannot order agencies to disobey the law. If they do, they will face lawsuits.
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MSNBC
Trump threatens independence of Justice Department with firing (video)
Laurence Tribe, professor of constitutional law at Harvard, talks with Rachel Maddow about the remarkable nature of Donald Trump's firing of acting attorney general Sally Yates, and the threat Trump's action represents to the independence of the Department of Justice.
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Bloomberg
Trump’s Travel Ban Is an Attack on Religious Liberty
An op-ed by Noah Feldman. President Donald Trump’s executive order barring the U.S. entry of refugees from seven majority-Muslim countries -- while prioritizing refugees who are religious minorities, namely Christians -- is a shameful display of discrimination against people who are by legal definition innocent and in danger of their lives. It also violates the constitutional value of equal religious liberty. Whether the constitutional violation could be used by a court to strike down the order is a more difficult question.
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The New Yorker
Donald Trump, Pirate-in-Chief
Donald Trump has had a fixation on Iraq’s oil—and America’s right to seize it—for at least six years...But the legal scholars I consulted challenged this interpretation. “The issue is complicated in its details, but basically what Trump has in mind—pillaging during occupation—is prohibited,” Jack Goldsmith, a Harvard Law School professor who served in the Bush Administration’s Justice Department, told me.
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Bloomberg
In Yates Versus Trump, the Constitution Won
An op-ed by Noah Feldman. The Monday night massacre -- as President Donald Trump’s firing of acting Attorney General Sally Yates was inevitably called -- lacked the grand madness of Richard Nixon’s famous firing of special prosecutor Archibald Cox on Oct. 20, 1973, which prompted the resignations of the attorney general and the deputy attorney general. Trump’s peremptory dismissal of Yates for refusing to enforce his executive order on immigration came symbolically at the beginning of his presidency, not with the end in sight, as in Nixon's case. But Trump’s action was nevertheless redolent of self-destructive bravado, much like Nixon’s.
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Talking Points Memo
Courts Unlikely To Strike Down Trump Order For Religious Bias, Experts Say
President Donald Trump’s executive order temporarily suspending the U.S. refugee program and barring immigrants from seven majority-Muslim nations is unlikely to be defeated on religious discrimination grounds, constitutional law experts told TPM Monday...“Viewing the executive order against the background that preceded it, the magnitude of the difference between what it seeks to accomplish and what effect it has and the way that it’s phrased demonstrates discrimination on religious grounds,” Harvard Law School professor Gerald Neuman told TPM. Referencing the Trump team’s defense that many predominantly Muslim countries are not included on the list, Neuman added that the order must be considered in its context. “The fact that it doesn’t ban every Muslim in the world doesn’t mean its not discriminatory against Muslims," he said. "It’s well established in the law of discrimination that you can discriminate against a subset of a group.” But like the other legal experts surveyed, Neuman said legal challenges to the ban were more likely to succeed on a statutory, not a constitutional, basis.
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Bloomberg
Originalists Put Politics Over Principle
An op-ed by Cass Sunstein. President Donald Trump’s Supreme Court nominee, to be announced on Tuesday, is likely to be some kind of “originalist.” For many conservatives, that’s terrific news. Improbably, originalism has become a litmus test, a simple way of distinguishing judges from politicians, using the Constitution to impose their values on the rest of us. But what is originalism?
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The Huffington Post
Missouri’s Unjust Rush To Execute Intellectually Disabled Man Who Was Abandoned by His Attorneys
An op-ed by Carol Steiker. Death is the ultimate punishment a state can impose. Because of the death penalty’s severity and finality, its implementation should never be rushed or done without full due process of the law. Yet Missouri will do exactly that if it proceeds with the execution of Mark Christeson on January 31. Intervention from the U.S. Supreme Court is now needed to prevent a grave miscarriage of justice. The federal courts have truncated due process by ordering unreasonably expedited briefing and hearing schedules, solely for the purpose of maintaining an execution date that was set at the State’s request while appeals were already pending. No court has ever fully considered the merits of Mr. Christeson’s important underlying constitutional claims, and no court has ever provided him with counsel free of conflicts of interest to raise those claims.
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Medium
Rules for a constitutional crisis
An op-ed by Lawrence Lessig. I became a lawyer because of a story told to me about Watergate, by my uncle, Richard Cates. Cates was a lawyer from Madison. When the House started investigating Nixon, he was hired to be counsel to the House Committee on Impeachment. His job was to put together the facts supporting a case against Nixon, and convince the members of the House that those facts merited impeachment...As I watch the unfolding constitutional crisis in America (from Rwanda — badly planned leave!), I am fearful that our leaders don’t understand what the Watergate Congress saw. This looks not like adults addressing a crisis with calm and confidence; it looks like a circus, that can only weaken even further the fabric of our Republic.
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Harvard Gazette
Trials for a global university
The Trump administration’s executive order banning refugees and immigrants from seven majority Muslim nations from entering the United States for at least several months has stirred a hornet’s nest of concern internationally, including at Harvard, as a global university...Labeling the executive order “sweeping in its effects and cruel in its application,” Maggie Morgan, a fellow at the Harvard Immigration and Refugee Clinical Program, wrote in an email that it potentially violated “our obligations under the International Refugee Convention, and our domestic-asylum law.” Any refugees arriving on U.S. soil are entitled, she wrote, to “credible fear” interviews to determine whether they should be permitted to remain to apply for asylum. “To return refugees to their home countries where their lives are at risk is in clear violation of our treaty obligations, as well as our statutory law,” said Morgan. “It also places many lives at risk and prolongs suffering.” Members of the clinic have been providing legal assistance to refugees stuck at Logan International Airport and will be hosting information sessions and know-your-rights clinics, in addition to opposing the order on policy and legal grounds.
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USA Today
Defiant Trump mocks Democrats over immigration order
A day after firing his acting attorney general for refusing to defend his new immigration order, President Trump mocked his Democratic congressional critics Tuesday and demanded that the Senate confirm his pick to lead the Department of Justice, Jeff Sessions...Legal analysts such as Jack Goldsmith — a Harvard Law School professor and Justice Department official during the George W. Bush administration — said Yates should have resigned rather than force Trump's hand.
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New Republic
Look Back in Anger
A book review by Samuel Moyn...While Mishra long ago recognized the uses of Western thought in understanding the causes of global rage, in his new book, Age of Anger, he turns to intellectual history to counter civilizational or theological explanations for that rage in its more recent forms. After September 11, 2001, a crew of specialists arose to designate Islam the cause of hatred and violence; their essential goal was to immunize our own way of life from blame and scrutiny. Such analysts could never anticipate how their own states and cultures gave rise to a broader discontent—including in Europe and the United States. After votes for Brexit and Donald Trump, it turns out it was not just “radicalized” Muslim youths who resented elites and resorted to violence as a means of revenge.
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Harvard Gazette
Sifting data, seeking justice
Growing up in Mexico City as a self-proclaimed geek, Paola Villarreal first realized the power of data after she arrived at a public bike-share station and discovered that all the bikes were taken. Villarreal, then 26 and a self-taught computer programmer, used information the bike-share program had posted online, albeit in an obscure format, to develop a mobile application. The app allowed her to check her phone for sites on the program’s citywide network that had bikes available. She shared the app with her friends, and before long it became so popular city officials sought to buy it, paying Villarreal six digits...Villarreal, now 32 and a fellow with the Berkman Klein Center for Internet & Society, continues to advocate for open source, but has made room for a new crusade: free access to public information. With open source, citizens can view, modify, and share source code. But they should also have access to data produced by the government, she says.
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WBUR
Trump’s Immigration Orders, Federal Judges’ Rulings, And What They Mean For Boston (audio)
In the wake of President Trump's sudden and temporary ban on visitors from seven predominantly Muslim countries, the key word is chaos — at airports and in courtrooms. Within local immigrant communities, academia, the business world across greater Boston, there is fear, anxiety and push-back over what the ban means and whether it is legal. Guests...Nancy Gertner, retired federal judge, Harvard law professor and WBUR legal analyst.
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Boston.com
Experts say President Trump is violating the Constitution. What happens now?
An old-fashioned word spoken by America’s Founding Fathers is suddenly back en vogue: Emoluments. The reason? President Donald Trump’s vast business empire — and his refusal to place that empire in a blind trust. The Emoluments Clause is a provision in the Constitution that prohibits federal officials from receiving money or gifts from foreign governments without congressional approval. As Harvard Law School professor Laurence Tribe recently wrote in a legal brief, Trump “appears to be on a direct collision course with Emoluments Clause.”...“The Founders viewed it as absolutely central to our nation’s sovereignty and survival,” said Tribe, a leading constitutional law scholar.
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