On what Noah misses: the continuing debate about the electoral college

An op-ed by Lawrence Lessig. My friend and colleague Noah Feldman is angry that I would be so “cavalier” about “following the procedures … that shape our constitutional norms.” In my view, however, it is in understanding those procedures that we should be most careful not to be cavalier. I—along with many others—believe the electors were intended to be something more than mere cogs. That they instead were to exercise judgment in deciding how to cast their ballots. Noah disagrees with this conventional view. The college’s “purpose,” he tells us, “is simply to effectuate the results of the electoral system we have.” That certainly is the view among the commentators and pundits. But that claim needs more support if it is to dislodge the view of many scholars, including, for example, our colleague Larry Tribe (“electors are free to vote their conscience”) and the extensive analysis of Columbia Professor Richard Briffault.

What Is The Emoluments Clause And How Does It Apply To Donald Trump?

When the Constitutional Convention convened in Philadelphia to debate and write a new constitution for the United States, there was a concerted effort to ensure that the new nation would break from the corrupt practices of the Old World….“When he takes the oath to uphold the Constitution he would be lying,” said Laurence Tribe, constitutional law professor at Harvard Law School. “He can’t uphold the Constitution, one of whose central provisions he would be a walking, talking violation of.”

Myanmar’s Leader Faulted for Silence as Army Campaigns Against Rohingya

Satellite images show villages burned to the ground. Human rights groups relay allegations of rape and the slaughter of children. Thousands of refugees have fled across the border to Bangladesh, while aid workers have been prevented from reaching the afflicted. As the Myanmar Army unleashes a brutal counterinsurgency campaign against the Rohingya in the north, Daw Aung San Suu Kyi, Myanmar’s leader, has remained nearly silent, putting her status as an exemplar of democratic values and a Nobel Peace Prize laureate in a different light…“Descriptions coming out of there are consistent with decades of abuse by the military against the Karen, Chin and Shan ethnic people,” said Tyler Giannini, a professor at Harvard Law School and a co-director of its International Human Rights Clinic. “That’s why it is beholden on the government to investigate what’s going on against the Rohingya and hold those responsible accountable.”

Giving women the edge

When businesswoman Lisa von Sturmer gave a sales pitch, she wore a bow in her hair on purpose. “They’d think I was fluffy, that they could probably push me around — and it would surprise them when they discovered who I really am. And it worked!” Von Sturmer, CEO of Growing City, was the keynote speaker for Women’s Entrepreneurship Day (WED) 2016 at Harvard late last month. She was joined by female entrepreneurs from around the world who came to share their expertise on business, success, and navigating the corporate world…The women’s messages evoked a palpable feeling of inspiration and motivation in the audience. “I didn’t think talking about business could be such an entertainment,” said Ashley Fournier, faculty assistant at Harvard Law School.

Mass. professors make group’s watchlist for alleged ‘leftist propaganda’

Both former and current Massachusetts professors are featured on a new website created by a conservative-leaning organization that tracks and documents what it calls “radical” ideas espoused by educators…Mark Tushnet, a Harvard Law School professor, has landed on the list. The website, quoting reports published by The Washington Times and the Independent Journal Review, wrote that Tushnet “asked liberals to begin treating Christians and conservatives like Nazis.” Tushnet told the Globe on Thursday that the reports the group relied on are “misleading both in framing the concern, and in the characterization” of a blog post he wrote. He said critics took what he said “essentially out of context.”

Clinton Had a Hillary Problem

An op-ed by Simon Hedlin `19. Was Hillary Clinton the woman with the best odds of winning a presidential election? Some certainly seem to think so. The Guardian ran a story a few days prior to the election titled, “Did it have to be Hillary Clinton for president? Yes. Here’s why.” That view has an uncomfortable implication—namely that no other woman could have beaten Donald Trump. MSNBC’s Jonathan Alter came to the same conclusion when he claimed that Trump won “because he’s a testosterone candidate and men weren’t ready for a woman president.” But that seems misguided. Clinton’s supporters were right that she was well qualified for the presidency, even without comparison to her exceedingly unfit opponent. But one must not conflate suitability for the job with strength as a candidate.

Simmons vs. Gladwell: The Future of Football

…Gladwell: I would actually go further: Players should be limited to 15 of 17 games. Football has lent itself to complication, and two “bye” games for every player just doubles the fun. Also, surely the goal here is to materially decrease the injury burden. Which leads me to my first issue: In mid-November, a group at Harvard University issued a 493-page report on health care in the NFL. Their main recommendation was that the physicians who take care of injured players should no longer report to the clubs. That’s a clear conflict of interest.

Lawrence Lessig: No More “Loophole Presidents”

With Hillary Clinton’s lead surpassing President-elect Donald Trump by two million in the popular vote, the role of the electoral college is being debated everywhere. Constitutional law scholar and Harvard Law School professor Lawrence Lessig made the case in a recent Washington Post piece that the electors should reflect the people’s choice, and avoid “loophole presidents.” Lessig spoke to Jim Braude and Margery Eagan on Boston Public Radio over the phone while on a trip to Iceland. Highlights below.

Trump’s Anti-Regulation Era Has Already Begun

An op-ed by Noah Feldman. When a federal judge in Texas last week froze a regulation extending overtime pay to thousands of workers, the holding had an extra sting. The hit to President Barack Obama’s legacy came from his own appointee, not a Bush-era holdover. And the decision will make it much simpler for President-elect Donald Trump’s Labor Department to scrap the regulation than it would have been without the judge’s activist ruling.

Former Law Clerk: Antonin Scalia Is Turning in Grave over Trump’s Threat to Jail Flag Burners (video)

Donald Trump also sparked controversy on Tuesday when he made two unconstitutional proposals in a single tweet, writing, “Nobody should be allowed to burn the American flag–if they do, there must be consequences–perhaps loss of citizenship or year in jail!” The Supreme Court has ruled twice that flag burning is protected under the First Amendment. The Supreme Court has also ruled it’s unconstitutional to strip people of citizenship for most crimes, including desertion. We speak to Harvard Law professor Lawrence Lessig, who once clerked for Antonin Scalia.