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News@Law, 02/18/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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New York Times
Tech Industry Response Is Muted in Clash on Unlocking iPhone

After a federal court ordered Apple to help unlock an iPhone used by an attacker in a December mass shooting in San Bernardino, Calif., the company’s chief executive, Timothy D. Cook, penned a passionate letter warning of far-reaching implications beyond the case. ... “The issue is of monumental importance, not only to the government and Apple but to the other technology giants as well,” said Tom Rubin, a former attorney for Microsoft and the United States Department of Justice, who is now a law lecturer at Harvard University. “Those companies are undoubtedly following the case intently, praying that it creates a good precedent and breathing a sigh of relief that it’s not them in the spotlight.”


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Corporate Counsel
Irony 101: Citing Copyright, Sony Takes Down YouTube Video About…Copyright
You can’t make this stuff up: An online lecture included as part of a course on U.S. copyright law offered by Harvard University in the U.S. and overseas has been taken down by YouTube due to a copyright claim by Sony Music. ... Adding to the irony, the blocked lecture, which explains aspects of copyright law as it applies to music and licensing, is taught by William “Terry” Fisher, a noted copyright expert who is the WilmerHale Professor of Intellectual Property Law at Harvard Law School. “This was an annoyance last week for my Harvard Law School students and the 400 students from around the world taking the online class,” said Fisher. “But it’s also having a global impact because students enrolled in affiliated courses at universities and cultural institutions in other countries that use the same lectures and readings and are on a different academic schedule now are finding they can’t get access.”  
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Dallas Morning News
In post-Scalia Supreme Court, Kennedy still likely to decide fate of Texas abortion clinics
The potential outcomes of Texas cases currently before the Supreme Court changed Saturday with the death of Justice Antonin Scalia. But some experts say the fate of several Texas abortion clinics is dependent on a different justice — Anthony Kennedy. ... Laurence Tribe, a constitutional law professor at Harvard Law School, said he believes Kennedy will vote to overturn the 5th Circuit’s decision. “There is no respectable way to treat the challenged Texas regulations as constitutional under the ‘undue burden’ standard,” Tribe said.
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Harvard Crimson
Corporate Firm Discontinues Law Student Funding Amidst Controversy
A major private sponsor to Harvard Law School student organizations discontinued its funding for student events after receiving complaints about a discussion hosted by the group Justice for Palestine, forcing the Dean of Students Office to compensate and leaving some questioning the influence of corporate donors at the school. ...“The Law School is able to fund student conferences with other resources, and the Law School has continued to maintain the same level of funding to support student activities,” [Robb] London wrote the statement. ...“I think as an organization we’re very concerned about free speech on campus, and on the role of corporate law firms in directing student speech and what kind of events we can have,” [Brian] Klosterboer said.
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Bloomberg View
Scalia’s Classic ‘Textualism’ Will Be His Legacy
An op-ed by Noah FeldmanTo the public, Justice Antonin Scalia was best known for his hard-line conservatism and his originalist constitutional thought. But to judges and lawyers, not to mention law professors, Scalia was better known for his distinctive philosophy for interpreting statutes, known as textualism. Scalia didn’t invent originalism. But he did invent textualism, at least as practiced by many judges today, and it stands as his most important contribution to legal thought. Scalia’s death at 79 is a good occasion to ask whether textualism is here to stay. My answer is a qualified yes. Although I think Scalia’s originalism is likely to fade, the basic textualist method of interpreting statutes according to the words while eschewing legislative history and purpose has a future -- because it has a past.
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Seattle Times
Lawsuit targets Medicaid policy that limits spendy hepatitis C drugs
Two weeks after suing private insurers for improperly denying costly drugs to patients with hepatitis C infections, Seattle lawyers have expanded the fight to Washington state’s Medicaid provider. ...“It is unlawful to withhold prescription drugs that cure a disease from Medicaid beneficiaries based on the cost of those drugs,” the complaint filed by the firm Sirianni, Youtz, Spoonemore and Hamburger states. Co-filers include Columbia Legal Services and the Center for Health Law and Policy Innovation at Harvard Law School.
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Wall Street Journal
U.S. and Apple Dig In for Court Fight Over Encryption
Washington and Silicon Valley geared up Wednesday for a high-stakes legal battle over a phone used by one of the San Bernardino, Calif., terrorists, a contest each side views as a must-win in their long fight over security versus privacy....“It’s not really a question of security versus privacy. It’s security versus security,’’ said Bruce Schneier, a fellow at Harvard University’s Berkman Center for Internet and Society. “Saying that all of these devices must be insecure so the FBI can have access would be a security disaster for us as a society.”
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NPR
Shooting Investigators Want To Get Around iPhone Security Features
Renee Montagne talks to [Harvard Law Lecturer on Law] Matthew Olsen, former director of the National Counterterrorism Center, about the battle with Apple over accessing the iPhone of one of the San Bernardino killers.
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NPR
Apple To Fight Court Order To Break Into San Bernardino Shooter’s iPhone
Apple prides itself on being a standard-bearer on security and encryption and on protecting customers' privacy. That position has put it on a collision course with law enforcement. Last night, a federal judge in California ordered Apple to help the Justice Department break into an iPhone that was used by a suspect in a mass shooting. Apple is fighting the order. ...And there's also the reality that Apple sells most of its phones outside the U.S. Jonathan Zittrain says if Apple says yes to the U.S. government, it will make it harder to say no in countries with very different values. Zittrain is a cofounder of the Berkman Center for Internet and Society at Harvard. JONATHAN ZITTRAIN: Oh, I would imagine that other countries are watching this dispute with great interest.
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Healthline
Research on ‘Three Parent Babies’ is ‘Ethically Permissible,’ Report Concludes
So-called “three parent babies” may be returning to labs in the United States. But it won’t happen this year and the experiments will probably be limited to male embryos only. A recent advisory report concludes that clinical research into mitochondrial therapy procedures on human embryos is “ethically permissible” as long as it meets several conditions. ... I. Glenn Cohen, JD, the faculty director at Harvard Law School’s Petrie-Flom Center, published a blog post about the report. He described the recommendations that MRT be limited to the transfer of male embryos as “clever and interesting.” He said it could have some negative ramifications, such as requiring that female embryos be discarded or frozen. That move could anger some religious conservatives.
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Politico
Scalia’s loss to be felt on Scotus wetlands ruling
The Supreme Court lost one of its most forceful critics of federal wetlands regulations with Justice Antonin Scalia's death, a loss that could shift the balance on how the court approaches some of the most significant water rules of President Barack Obama's tenure, writes Pro Energy’s Annie Snider. Scalia heavily influenced a more critical approach to wetlands rules among his fellow justices, once famously comparing the government to "an enlightened despot" in its implementation of regulations that sought to protect rivers and streams by regulating what individuals and businesses could do on soggy patches of land miles away. "It was Justice Scalia, I think, who woke up that part of the court," Harvard Law Professor Richard Lazarus said. "He brought a very deep skepticism which became infectious for many of the justices on the court."
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Boston Globe
Despite differences, Harvard professor Lawrence Lessig praises Antonin Scalia

Lawrence Lessig, a Harvard Law School professor and liberal activist, and Antonin Scalia, the late conservative and originalist Supreme Court justice, would not be described as political allies. But Lessig had nothing but praise for Scalia, who died Saturday at the age of 79, when it came to the man’s principles in a USA Today op-ed Wednesday. ... “Whether perfectly or not, what was most striking to me was to watch someone of great power constrain his power, not for favors or public approval, but because he thought it right,” Lessig wrote, crediting Scalia’s “acts of integrity” for some of his own development as a lawyer.


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WBUR
Same Fears, Different Century: Stage Adaptation Of Orwell’s ‘1984’ Still Ominously Relevant
It seems Big Brother never gets old — and he’s still watching us. That’s according to a new stage adaptation of George Orwell’s dystopian novel “1984” that just opened at the American Repertory Theater in Cambridge. ... To that common response to the location request, Harvard Law School professor Jonathan Zittrain says, “Well and that choice, I think, is too often fairly illusory.” Zittrain founded the Berkman Center for Internet and Society. “It has the quality of somebody telling their child, ‘When you go to bed at 8 p.m. tonight, do you want to wear your yellow pajamas or your blue pajamas?’ ” the law professor continued. “It’s a fake choice in that you’re still going to bed at the time I say.”  
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Jerusalem Post
Harvard brings negotiation workshop to Tel Aviv
(Subscription required) One can expect only the finest teachings from Harvard University, but something is brewing in Cambridge, Massachusetts. Prof. Robert H. Mnookin, the chairman of the Program on Negotiation at Harvard Law School, along with other colleagues, has spent the past year-and-ahalf developing video lectures featuring some of the world’s leading experts in negotiation.
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NBC News
Why Are Apple and the FBI Battling Over an iPhone?
A long-brewing conflict between one of the world's largest and most recognizable companies and the FBI leapt into public view on Tuesday after a federal judge ordered Apple to help government investigators find a way into an iPhone used by one of the shooters in the San Bernardino, California, massacre last December. ...Two separate studies released in February by Harvard University's Berkman Center for Internet & Society have addressed the crypto debate, and both urged a degree of caution in allowing increased government access. The first study took aim at the "going dark" question, and led researchers to conclude that we are likely not headed for a future in which police don't have the tools they need to catch bad guys. The second found that, even if encryption was weakened or halted in the United States, there are literally hundreds of encryption products, many of them free, available from other countries that criminals or terrorists could easily install and use.
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American Lawyer
Milbank Changes Course on $1M Harvard Law School Gift after Pro-Palestine Event
A student group at Harvard Law School claimed this week that its stance on free speech and the Israeli-Palestinian conflict drove Milbank, Tweed, Hadley & McCloy to withdraw generous annual funding for student-run activities at the school. Harvard said that Milbank had not rescinded its $1 million-dollar gift—$200,000 a year spread over five years—but the funds would now be administered differently. The student group, HLS Justice for Palestine, said Milbank decided to pull its funding after $500 in firm-donated money was used to buy pizza for an event advocating free speech for pro-Palestine advocates. Milbank was recognized as a sponsor of the event, sparking a “flood of angry phone calls and emails” from “Milbank executives” and others, according to the group.
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Bloomberg BNA
Conservative Scalia a Skeptic of Insider Trading Law
Supreme Court Justice Antonin Scalia's record on securities matters in the Roberts Court matched his overall conservative reputation, and his passing could tip the balance in a pending insider-trading case. Scalia voted for a “restrictive,” pro-management outcome in securities-law cases more than half the time, according to a 2014 study by Harvard professor John C. Coates IV of Chief Justice John Roberts's tenure on securities law matters. Coates's study showed that despite the ideologically divided court, the amount of polarization and dissent on securities-law cases under Roberts decreased from previous chief justices' terms.
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Think Progress
The Mercury Rule Will Save Even More Money Than The EPA Thought
The Environmental Protection Agency’s so-called Mercury Rule, which curbs mercury released from power plants, offers tens of billions of dollars in health benefits, according to a new review of research from the Harvard School of Engineering and Applied Science. ...Last month, the authors submitted their research to the D.C. Circuit Court, which asked for the review. “The Clean Air Act has been one of our country’s greatest successes stories,” Shaun Goho, a co-author of the paper from the the Emmett Environmental Law and Policy Clinic at Harvard Law School, said in a statement. “Yet, when it comes to mercury and other toxic air pollutants, only one major source of emissions has escaped regulation for the last 25 years: coal-fired power plants. Power plants are the number one source of mercury emissions in the United States and limits on those emissions are long overdue.”
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Boston Globe
Harvard Law students occupy a school building
A group of Harvard Law students have occupied one of the school’s halls, saying there is no space for marginalized students and staff on campus. The occupation, which began Monday night, is an effort to create such an environment, according to a statement from the students. ... “Our recent efforts are intellectually descended from the numerous student movements that have arisen time and again at HLS, because of a long-true reality: Harvard Law School is not an inclusive institution,” a statement from the group said.
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Bloomberg View
Obama and Republicans Are Both Wrong About Constitution
An op-ed by Noah Feldman: What does the U.S. Constitution really have to say about whether the Senate must put a president’s Supreme Court nominee to a vote? President Barack Obama says the Constitution “is pretty clear on what happens next”: He nominates, and the Senate says yes or no in a timely fashion. Republicans think the Constitution gives the Senate the right, not just the power, to give the president’s nominee a hearing or to refuse to do so. ... They’re both wrong. Here’s what the Constitution says about filling Supreme Court vacancies: nothing.
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WBUR
Harvard Law Students Protest, Raise Concerns About Alleged Racism On Campus
Students at Harvard Law School are vowing to occupy a student lounge indefinitely, citing concerns about diversity on campus. The students claim Harvard’s administration has not met a series of demands made last semester to help fight against what they say are issues of systemic racism. WBUR’s Fred Thys reports for Morning Edition about the students’ goals to create a better environment for students of color they believe are being marginalized by the school.
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Wall Street Journal
Rise of Claims Trading Complements 363 Sales
Commentary by Mark Roe: That claims trading is good overall doesn’t mean it lacks downsides. Funds sometimes buy up claims to create a blocking position in the creditor negotiations, slowing down what would otherwise be a quicker consensual restructuing. Claims trading can lead to conflicts of interest. A senior claimant could buy junior claims or vice versa, or a competitor of the debtor could buy claims on the debtor.
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