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News@Law, 12/11/2015

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Drug maker challenges tribal court’s right to hear lawsuit
In an unusual move, Takeda Pharmaceuticals asked a federal appeals court to rule that a Native American tribal court does not have jurisdiction over a lawsuit which could expose the company to enormous liability. The effort marks the first time that a drug maker has taken such a step, according to experts, and underscores the risks facing the pharmaceutical industry amid a proliferation of lawsuits filed by patients who claim they were harmed by medicines...“Indian tribes are independent sovereigns and not subject to federal court review, except on the huge question of whether they have legal jurisdiction in the first place,” said Robert Anderson,[Oneida Indian Nation Visiting Professor of Law,] who heads the Native American Law Center at the University of Washington in Seattle. “So they could be sued by, perhaps, thousands of other people. And these companies fear liability in tribal court.”
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The Harvard Crimson
Deliberate Progress
Last Friday, students and staff critical of race relations at Harvard Law School issued a long list of demands to Law School Dean Martha L. Minow, insisting that she present a “strategic plan” for their implementation by 9 a.m. last Monday morning. When that unreasonable timeline was unmet, more than 100 students gathered to protest her supposed failure to address their concerns. The demands, made by a newly organized group called Reclaim Harvard Law School, are for major institutional changes...that cannot be met in a weekend. They can’t even be considered properly in that timeline...In an email to affiliates Monday, Minow described the Law School as “a community of many voices and hopes,” going on to write that the school has “an obligation to provide and protect the opportunity for all to participate, speak and be heard.” Hers is the right attitude.
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The Harvard Crimson
Law School Faculty and Staff Commend Student Activism
As Harvard Law School students continue to advocate for a list of demands they say will improve the school’s treatment of minority students, a group of 25 Law faculty and staff published a letter Wednesday commending the student activism...The Law faculty and staff were not the only ones commenting on the recent developments at the Law School—another group of students launched a website called “Responsible Speech at HLS” that is critical of some aspects of Reclaim Harvard Law School’s demands. The online letter, supported by 16 signatories, most anonymous, argues that some of the demands—like curriculum change—could stifle academic freedom and discourage alternative viewpoints. “We think some of the demands would have a chilling effect on dialogue and would actually be unproductive,” said William H. Barlow, a Law student who helped launch the site. In an emailed statement, Alexander J. Clayborne, a third-year Law student, said he and student activists were encouraged by the faculty and staff’s letter, which was posted on the website of the Systemic Justice Project. Clayborne declined to comment on the “Responsible Speech at HLS” letter.
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Who Blew the Lid Off Campaign Contributions?
An op-ed by Albert W. Alschuler and Laurence H. Tribe. Federal law bars billionaire Robert Mercer from giving as much as $6,000 to Ted Cruz’s presidential campaign. Thirty-nine years ago, in Buckley v. Valeo, the Supreme Court upheld limits on contributions to candidates. But federal law did not block Mercer from giving $11 million to a super PAC whose mission is to urge voters to support Cruz. A federal statute formerly limited contributions to super PACs to $5,000, but in 2010 a federal court held this statute unconstitutional...No sane legislator would vote in favor of our regime of campaign financing, and no legislator ever has. The United States has this topsy-turvy regime because the federal courts have held that the First Amendment requires it.
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Justices Are Wise to Delay on Affirmative Action
An op-ed by Noah Feldman. The last time affirmative action was before the Supreme Court, in 2013, Justice Anthony Kennedy, the court’s swing vote, didn't want to decide the case, and the court sent it back to the court of appeals. Now, with campuses across the country roiled by racial debate and protest, the timing for a decision on the controversial issue is worse. And sure enough, at oral argument Wednesday, Kennedy strongly hinted that he'd like to send the case back -- this time to the trial court to develop the record and find more facts.
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The Wall Street Journal
Is Lab Testing the ‘Wild West’ of Medicine?
...The Food and Drug Administration sees lab-developed tests as the Wild West of medicine, citing examples of inaccurate tests it claims put patients at risk. The agency is trying to toughen its supervision next year after largely leaving the business alone for decades and focusing most of its oversight on traditional testing methods. Lab-developed test providers are fighting back. They say their tests are accurate and even lifesaving. Industry officials say heightened regulation could stifle innovation...Also on the industry’s side are Laurence H. Tribe, a constitutional law professor at Harvard University, and Paul D. Clement, a former U.S. Solicitor General who now is in private practice and a lecturer at Georgetown University Law Center. They say the FDA “lacks the statutory authority to regulate laboratory-developed testing services,” according to a report earlier this year paid for by the trade group.
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