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News@Law, 01/09/2018

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
Court to weigh if one parent has the right to use frozen embryos if the other objects
During three emotional days of divorce talks, Drake and Mandy Rooks managed to agree on how to divide up almost every aspect of their old lives down to the last piece of furniture. Only one thing remained: the frozen embryos...“Constitution questions are front and center in a way that they have not been in the other cases,” said Harvard law professor I. Glenn Cohen. And if the judges decide the Rookses’ dispute on such grounds, that would allow it to be appealed to the U.S. Supreme Court — where a ruling would apply nationwide. Cohen said the central issue focuses on how to balance one person’s constitutional right to procreate with another’s countervailing constitutional right to not procreate.
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The Washington Post
Google, Twitter face new lawsuits alleging discrimination against conservative voices
James Damore, the former Google engineer who was fired after distributing a memo questioning the company’s diversity policies, filed a class-action lawsuit Monday claiming that the technology giant discriminates against white men and conservatives. Damore’s suit came on the same day that conservative publisher Charles C. Johnson sued Twitter for banning him from the platform in 2015. The cases are the latest signs of a broad effort by some conservatives to challenge technology companies on the grounds that they favor liberal or moderate voices, reflecting the prevailing political sensibilities in Silicon Valley...Courts in that state have in the past highlighted the importance of free speech rights even when exercised on private property, making the state potentially more amenable to Johnson’s claims about censorship on a private online platform such as Twitter, said Jonathan Zittrain, faculty director of Harvard’s Berkman Klein Center for Internet and Society. “Of all the places to bring a long-shot case like this, California would be the place,” Zittrain said.
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The Washington Post
Trump on the stand: The greatest political and legal peril he’s ever faced
Special counsel Robert S. Mueller III has told President Trump’s legal team that his office is likely to seek an interview with the president, triggering a discussion among his attorneys about how to avoid a sit-down encounter or set limits on such a session, according to two people familiar with the talks...“The risk is that Trump would either incriminate himself, commit perjury, or lie — unless he truly has committed no offense and has nothing to fear from telling the truth, the whole truth, and nothing but the truth,” constitutional lawyer Laurence H. Tribe tells me. “I regard that ‘unless’ as extremely implausible.” He adds, “That said, I would’ve have him plead the Fifth. That option isn’t realistically available to a sitting president, who simply can’t afford the steep political price that taking the Fifth would inevitably exact.”
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Bloomberg
Sessions’s Policy Now Makes Pot Use a Gamble
An op-ed by Noah Feldman. Prohibition-lite: That’s President Donald Trump marijuana policy set out last week in Attorney General Jeff Sessions’s guidance to U.S. attorneys, encouraging them to enforce federal pot laws even where states have legalized the drug. This is a reversal of President Barack Obama’s approach, which tried to impose some logic on law enforcement policy by discouraging federal charges. The effect of Sessions’s move is to make the law into a roulette game, with luck determining who gets prosecuted and who doesn’t. And that in turn undermines the rule of law itself, which thrives on regularity, predictability, and treating like situations and people alike.
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New York Law Journal
Cuomo’s Plan to Sue Feds Over Tax Bill Faces Big Hurdles, Legal Experts Say
Gov. Andrew Cuomo’s plan to sue the federal government over the recently enacted tax bill on grounds that it violates constitutional principles will face significant challenges, legal experts say...Thomas Brennan, a tax professor at Harvard Law School, said Cuomo’s plan to sue the federal government over the tax plan would be “difficult.” “My own thought is it would be a challenging thing to challenge this law on constitutionality, at least the SALT (state and local taxes) restriction,” Brennan said of the proposed Cuomo administration lawsuit. “I imagine the strategy would be to argue about an infringement on states’ rights of some sort.”
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The New York Times
G.O.P. Says Tax Bill Will Add Jobs in U.S. It May Yield More Hiring Abroad.
In Indiana, Missouri and Pennsylvania, President Trump used the same promise to sell the tax bill: It would bring jobs streaming back to struggling cities and towns...The bill that Mr. Trump signed, however, could actually make it attractive for companies to put more assembly lines on foreign soil...“Having such a low rate on foreign income is outrageous,” said Stephen E. Shay, a senior lecturer at Harvard Law School and a Treasury Department official during the Reagan and Obama administrations. “It creates terrible incentives.”
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Bloomberg
Power Producers Stumble Off The Perry-Go-Round
Every so often, a policy proposal comes along that's so ill-conceived, one can dispense with the usual nuance and just call it flat-out ridiculous. Energy Secretary Rick Perry's plan to subsidize coal-fired and nuclear power plants for stockpiling fuel was just such a proposal...Ari Peskoe, a senior fellow in electricity law at Harvard Law School, sees some merit in finding ways to prevent plants that are providing power to the grid from incurring losses. Equally, though, he points out that keeping inflexible plants on the grid adds cost to the system, especially as coal-fired plants, for example, "seem like the kind of resources that are eventually going to go away."
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The Washington Post
Dozens more ‘resistance’ books scheduled for 2018
...Harvard law professor and former Obama administration official Cass R. Sunstein has edited “Can It Happen Here: Authoritarianism in America,” essays by a diverse range of scholars on American democracy. The book was clearly inspired by Trump, but Sunstein said he doesn’t consider it a work of “resistance.” He calls it an “exploration of self-government” touching upon currents events and such historical moments as the internment of Japanese during World War II.
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