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News@Law, 01/04/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Today's News

The Wall Street Journal
Lawrence Lessig: Technology Will Create New Models for Privacy Regulation
The latest chapter of Lawrence Lessig’s career ended in November, when the Harvard Law School professor concluded his bid for the Democratic Party’s presidential nomination. That effort centered on his campaign to reform Congressional politics. Prior to that, Prof. Lessig’s scholarship, teaching and activism focused on technology policy and the Internet. He has argued for greater sharing of creative content, the easing of restrictions in areas such as copyright, and the concept of Net Neutrality. Prof. Lessig, who founded the Center for Internet and Society at Stanford Law School, is the author of numerous books on technology, including “Code: and Other Laws of Cyberspace,” and “The Future of Ideas: the Fate of the Commons in a Connected World.” CIO Journal asked Prof. Lessig for his thoughts on how technology policy, which is at multiple critical junctures around the world, can and should evolve. Privacy, surveillance, and international governance of the Internet and telecommunications networks will approach milestones in 2016, with implications for business and beyond.
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Bloomberg
A Valuable Lesson in Protected Speech
An op-ed by Noah Feldman. Here’s the issue in a real free-speech case just decided by the U.S. Court of Appeals for the Ninth Circuit: Can someone be refused a teaching certification because of his otherwise protected social or political views? The answer sounds like it should be no, doesn’t it?
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Bloomberg
Mitch McConnell and the Coal Industry’s Last Stand
...Coal needs all the friends it can get. The industry is under siege from federal regulation, most recently Obama’s Clean Power Plan, which went into effect on Oct. 23 and seeks to reduce carbon emissions by 32 percent by 2030. Consumers and activists, meanwhile, are persuading utilities to close aging coal-fired power plants. With funding from Bloomberg Philanthropies, the Sierra Club’s Beyond Coal campaign has helped shut down more than 220 coal facilities over the past five years...Whitfield’s star witness was the well-known law professor Laurence Tribe of Harvard, who’s been retained by Peabody Energy, the nation’s largest coal company, to advocate against the EPA proposal. Arguing that the Obama administration was infringing on state authority, Tribe compared the Clean Power Plan to “burning the Constitution.” “If I thought the case was a close one, I wouldn’t have taken it on,” Tribe says. “If I’m proven right on the law, then lots of time, money, and jobs will have been lost pursuing an important goal in an unlawful way.”
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USA Today
Delamaide: Hasty law can’t stop SEC rule on political disclosure
A bit of last-minute skullduggery in Congress blocking efforts to make companies disclose political contributions may fall short of its goal. Buried in the 2,000 pages of the $1.1 trillion spending bill passed into law this month was one of those nasty little riders that has nothing to do with funding the government but are slipped into a must-pass bill at the last minute...The legal opinion written by Harvard Law Professor John Coates argues that this wording does not in the meantime restrict the preparatory tasks of issuing a rule — internal discussion, planning, investigation, analysis, evaluation and development of possible proposals. "These steps often take years and consume significant agency funds and other resources," Coates wrote in his Dec. 17 opinion.
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Harvard Gazette
Fighting for disarmament
After researching the devastating humanitarian effects of the deadly cluster munitions used in Afghanistan in 2002, Bonnie Docherty joined a worldwide campaign to eliminate them. Six years after she started her probe, cluster bombs were banned. Her investigation on the use of cluster munitions in Afghanistan, and later in Iraq and Lebanon, was highly influential in a 2008 treaty signed by 117 countries banning these weapons. For Docherty, a lecturer on law and a senior instructor at the International Human Rights Clinic at Harvard Law School, the battle to protect civilians from unnecessary harm continues. Last month, Docherty traveled to Geneva to advocate for stronger regulations on incendiary devices, which she calls “exceptionally cruel weapons” that have been used in Syria, Libya, and Ukraine.
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The Wall Street Journal
Activism’s Long Road From Corporate Raiding to Banner Year
...After decades of being treated as boorish gate-crashers, activist investors are infiltrating the boardrooms of large companies like never before. This year activists launched more campaigns in the U.S.—360 through Dec. 17—than any other year on record, according to FactSet...At the same time, changes in corporate governance were making it easier for activists to win board seats. Between 2011 to 2014, a group at Harvard University led by professor Lucian Bebchuk campaigned to get more than 100 major companies to put their entire boards up for annual election, instead of staggering directors in multiyear terms.
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The Wall Street Journal
‘Bluebook’ Critics Incite Copyright Clash
For close to a century “The Bluebook” has reigned as the “bible of legal citation“*, the guide that practicing lawyers, judges and law students turn to when they need to know the proper way to reference a case, a statute, book or article. Now, a copyright clash is heating up between the Ivy League publishers of The Bluebook and legal activists who are preparing to post online what they describe as a simpler, free alternative to the manual’s punctilious precepts...Here’s an excerpt from the letter by IP litigator M. Brody of Ropes & Gray LLP, who represents Harvard Law Review Association, Columbia Law Review Association, the University of Pennsylvania Law Review and the Yale Law Journal: [M]y client has been and remains concerned that the publication and promotion of such a work may infringe the Reviews’ copyright rights in The Bluebook and The Bluebook Online, and may cause substantial, irreparable harm to the Reviews and their rights and interests in those works.
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In These Times
Why Compton Students Are Suing Their Schools
...That’s why Cervantes and seven other students and teachers are suing Compton Unified School District (CUSD) in a case that could transform how schools respond to trauma and violence. They argue that CUSD’s failure to provide adequate training and resources for coping with trauma is denying students equal access to education. ...Only a few schools and school districts have stepped up to meet this challenge, but their experiences offer hope for the plaintiffs in Compton. Brockton Public Schools, a largely working-class school district south of Boston, began implementing “trauma-sensitive” reforms more than five years ago in partnership with the Trauma and Learning Policy Initiative (TLPI), a collaboration between Massachusetts Advocates for Children and Harvard Law School. This meant training staff on how complex trauma affects learning and behavior, as wel las modifying disciplinary practices to focus on deescalation instead of punishment.
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LawSites
The 10 Most Important Legal Technology Developments of 2015
What have been 2015’s most important developments in legal technology?...the biggest legal technology story of the year was the joint announcement by Harvard Law School and Ravel Law of their Free the Law project to digitize and make available to the public for free Harvard’s entire collection of U.S. case law – said to be the most comprehensive and authoritative database of American law and cases available anywhere outside the Library of Congress. As someone who has covered legal and information technology for more than two decades, this was a day I’d long hoped would arrive. Harvard’s vice dean for library and information resources, Jonathan Zittrain, summed up the significance better than I could when he said: “Libraries were founded as an engine for the democratization of knowledge, and the digitization of Harvard Law School’s collection of U.S. case law is a tremendous step forward in making legal information open and easily accessible to the public.”
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Bloomberg
Who Needs Black Robes? Not Judges
An op-ed by Noah Feldman. Starting in the new year, judges in Florida can wear robes in any color they want -- so long as that color is black. The state Supreme Court seems to have adopted the new rule -- which also prohibits any robe embellishment -- because of a judge who wore a camouflage robe, which some litigants thought signaled his identity as a good ol’ boy, thereby undercutting public confidence in the judiciary.
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Bloomberg
The Year’s Best Films (to a Behavioral Economist)
An op-ed by Cass Sunstein. In just four years, the Behavioral Economics Oscars, widely known as the Becons, have become the most eagerly awaited of the year-end movie awards (even if the highly influential awards committee consists of just one person). Finally, the wait is over. A standing (and fully rational) ovation for the Becon winners of 2015:
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Bloomberg
The Political Incorrectness Racket
An op-ed by Cass Sunstein. Among Republicans, it has become politically correct to be politically incorrect. Actually that’s the most politically correct thing that you can possibly be. As soon as you announce that you’re politically incorrect, you’re guaranteed smiles and laughter, and probably thunderous applause. Proudly proclaiming your bravery, you’re pandering to the crowd. A math-filled new paper, by economists Chia-Hui Chen at Kyoto University and Junichiro Ishida at Osaka University, helps to explain what’s going on. With a careful analysis of incentive structures, they show that if self-interested people want to show that they are independent, their best strategy is to be politically incorrect, and to proclaim loudly that’s what they are being. The trick is that this strategy has nothing at all to do with genuine independence; it’s just a matter of salesmanship, a way to get more popular.
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Bloomberg
Terrorists With Assault Weapons Rewrite the Script
An op-ed by Noah Feldman. Over the last 15 years, Americans have become accustomed to distinguishing domestic mass shootings from Islamic terrorism -- the difference between Columbine and the Sept. 11 attacks, if you will. In 2015, that conceptual division broke down with the massacre in San Bernardino, California. It wasn’t the first domestic act of terrorism inspired by Islam -- Army Major Nidal Hasan’s attack on Fort Hood and the Boston Marathon bombing both featured American Muslim terrorists. But San Bernardino was the first time the two paradigms were literally indistinguishable. It’s as if the terrorists finally said, “Who needs airplanes when assault weapons are readily available?”
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Bloomberg
Apology Isn’t Justice for Korea’s ‘Comfort Women’
An op-ed by Noah Feldman. At long last, Korea's “comfort women” are getting a real apology from Japan's government for being forced into sexual slavery by the Japanese army during World War II. But the moment is bittersweet, and not just because it’s taken 70 years. The apology comes not out of a change in Japanese sentiment, but from a change in geopolitics -- namely, the rise of China and the increasing need for Japan and South Korea to cooperate on mutual defense. And it comes at the price of a promise by the South Korean government not to criticize Japan over the issue again -- a trade of moral claims for compensation and finality.
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Bloomberg
Islamic State Learns From Past
An op-ed by Noah Feldman. Remember Fallujah? For the Barack Obama administration, the Iraqi retaking of Ramadi -- with substantial U.S. help -- is a welcome New Year’s gift. But before anyone gets too excited about moving on to Mosul, Iraq’s second-largest city, it would be wise to remember that at least two further obstacles remain before that battle can be mounted. The Iraqis need to hold Ramadi and establish supply lines in the territory leading to Mosul, and they must break Islamic State’s hold on Fallujah, to the rear of Ramadi and perilously close to Baghdad.
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Bloomberg
Poland’s New Leaders Take Aim at Democracy
An op-ed by Noah Feldman. Not every democracy needs a supreme court with the power to block legislation it deems unconstitutional. But Poland’s reforms of its Constitutional Tribunal, enacted by a right-wing majority and signed into law by a conservative president, are worrisome signs for the country's prospects of democratic government. The political timing -- and the nature of the changes -- provides a valuable guide to what judicial review is good for, and why so many countries have adopted it since World War II.
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