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News@Law, 12/10/2015

News@Law is a selection of the day's news clips regarding Harvard Law School.
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The Mysterious Shelved Amendment To The Transportation Bill That Would Divide Billionaires
While families all across the country were shopping for the final ingredients for that special Thanksgiving dinner, someone was hard at work on another type of stuffing: a two-page amendment to legislation that could have shifted hundreds of millions of dollars from one set of powerful financial investors to another. That amendment – which had nothing to do with transportation but was inserted into the $305 billion transportation bill that appears set to be signed by the president shortly – would have changed a portion of securities law know as the Trust Indenture Act, or TIA. To be sure, that amendment did not make the final text of the bill...If this amendment was inserted, it could have sunk those bondholders’ argument – to the benefit of those who own and control Caesars. “The amendment may be good for Caesars’ owners, but it’s not good for the bond market going forward or for out-of-bankruptcy restructurings going forward,” according to Professor Mark Roe, who teaches corporate law and corporate bankruptcy at Harvard School of Law.
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History Draws a Line on ‘One Man, One Vote’
An op-ed by Noah Feldman. On Tuesday, the Supreme Court heard oral arguments on whether states' drawing of legislative districts should be based on total population, as it is now, or voter population, as some conservatives want. The case, Evenwel v. Abbott, raises a fundamental question about who is represented in our democracy. But as so often happens, the oral argument took a turn in the direction of our history with a focus on the drafting of the Constitution.
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The Charlotte Observer
As Congress goes home, 60 judgeships sit empty
An op-ed by Tommy Tobin '16. Many of us are going home for the holidays. So too are members of Congress. They have fewer than 10 working days to handle the nation’s business before their long winter recess. One of Congress’s most pressing concerns should be to fulfill its constitutional role and fill the gaping vacancies on the federal bench. While Congress travels home this holiday season, more than 60 seats are left vacant on the federal judiciary. With more than 400,000 cases filed in federal court each year, current judges must cover the gaps left by these open seats. For nearly 30 judgeships, the burdens facing jurists are so great that the Administrative Office of the U.S. Courts has declared a judicial emergency. The stress facing federal judges may have real-world consequences.
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The New York Times
A Middle Ground Between Contract Worker and Employee
For roughly the first two years of its existence, Munchery, an on-demand food preparation and delivery service, classified its drivers as independent contractors. They were not covered by minimum wage and overtime laws, and were not eligible for unemployment insurance or workers’ compensation. Then, in 2013, it reversed course and made its drivers full-blown employees. In addition to those various protections, they received health benefits if they worked at least 30 hours per week. The about-face suggests an ambiguity in the status of workers at Munchery and other on-demand companies like the car-hailing services Uber and Lyft...But even these hard cases often are not necessarily as hard as they initially appear. Benjamin I. Sachs, a Harvard law professor who is a former union official, notes that the drivers may only need to be paid from the point at which they have agreed to pick up a particular rider.
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Harvard Gazette
Cass Sunstein, ‘Star Wars’ fan
It was a galactic head fake from one of Harvard’s eminent legal scholars. Cass Sunstein wowed a crowd at Harvard Law School during a talk on his love for one of the 20th century’s cultural touchstones: “Star Wars.” Sunstein, the Robert Walmsley University Professor, said the film that spawned both prequels and sequels — including “Star Wars: The Force Awakens,” out Dec. 18 — was a seminal source of inspiration in his life and career. “I became a political science major only because of those ‘Star Wars’ movies. You saw those movies, and you had to focus on political science,” said Sunstein, adding that his love of behavioral science grew out of his fascination with the film’s storm troopers. He said that Supreme Court Associate Justice Thurgood Marshall, for whom he clerked after law school, was his substitute for the film’s all-knowing mentor, Ben Obi-Wan Kenobi. Then, Sunstein let his listeners in on his joke.
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Clinton aims to stop ‘earnings stripping’ to curb U.S. inversion deals
U.S. Democratic presidential candidate Hillary Clinton detailed plans on Wednesday to crack down on companies that shift profits overseas, a practice known as earnings stripping. Clinton is spending this week explaining how, if elected president in November 2016, she would address tax-avoiding “inversion” deals in which a company buys or merges with a foreign rival and relocates on paper to lower its U.S. tax bill...The Treasury Department, after a wave of inversion deals, announced new regulations in September 2014, targeting certain tax-avoidance deals. The regulations did not take on earnings stripping directly, but the department reserved the right to make any future regulation retroactive to that date."That was a signal to me that they thought they could do something by regulation," Harvard Law School lecturer Stephen Shay said in an interview. Shay said the "sentiment in the tax community today is yes there is regulatory authority to do something" about earnings stripping. Shay has written on the topic and has spoken to Clinton's campaign in recent weeks.
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The New York Times
The Internet’s Loop of Action and Reaction Is Worsening
Donald J. Trump and Hillary Clinton said this week that we should think about shutting down parts of the Internet to stop terrorist groups from inspiring and recruiting followers in distant lands. Mr. Trump even suggested an expert who’d be perfect for the job: “We have to go see Bill Gates and a lot of different people that really understand what’s happening, and we have to talk to them — maybe, in certain areas, closing that Internet up in some way,” he said on Monday in South Carolina. Many online responded to Mr. Trump and Mrs. Clinton with jeers, pointing out both constitutional and technical limits to their plans...“The academic in me says that discourse norms have shifted,” said Susan Benesch, a faculty associate at Harvard’s Berkman Center for Internet & Society and the director of the Dangerous Speech Project, an effort to study speech that leads to violence. “It’s become so common to figuratively walk through garbage and violent imagery online that people have accepted it in a way. And it’s become so noisy that you have to shout more loudly, and more shockingly, to be heard.”
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