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News@Law, 02/25/2016

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

The Guardian
We cannot trust our government, so we must trust the technology
An op-ed by Yochai Benkler. The showdown between Apple and the FBI is not, as many now claim, a conflict between privacy and security. It is a conflict about legitimacy. America’s national security agencies insist on wielding unaccountable power coupled with “trust us, we’re the good guys”, but the majority of users have no such trust. Terrorism is real, and surveillance can sometimes help prevent it, but the only path to sustainable accommodation between technologies of secrecy and adequately informed policing is through a root-and-branch reform of the checks and balances in the national security system.
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Bloomberg
Democrats Win by a Nose, on the Economy
An op-ed by Cass Sunstein. Donald Trump’s success in the Republican primaries, punctuated by his victory Tuesday in Nevada, has been spurred in part by his deviation from traditional Republican policies (on free trade and immigration) and in part by his argument that some of those policies (including lower income taxes and less regulation) would make America great again. But the latter argument runs into an immediate objection: The economy has consistently grown less under Republican presidents than Democratic ones. It’s just not clear why that is -- or how much a president’s policy choices have to do with it.
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Bloomberg
Obama Could Taunt the Senate as FDR Did
An op-ed by Noah Feldman. President Barack Obama insisted that his post to Scotusblog on Wednesday about his criteria for a U.S. Supreme Court nominee was “spoiler free.” But he may have been protesting a bit too much. Obama wrote that he sought a justice with “life experience outside the courtroom or the classroom,” which possible nominees like Judge Sri Srinivasan of the Court of Appeals for the D.C. Circuit arguably lack. Then, later in the day, someone in the administration leaked a highly untraditional candidate, Republican Governor Brian Sandoval of Nevada, who has political life experience and was also a federal district judge for four years.
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USA Today
Apple plans two-pronged attack in iPhone-Apple fight
Apple is launching a two-pronged attack in its fight against the FBI: It's going to Congress and it is invoking the First Amendment. But in extending its case to lawmakers and the Constitution, it faces a tough sell, legal experts say..."The government has picked its turf carefully" around a narrow issue that gives it the best chance to make its case, says Jonathan Zittrain, professor of law and computer science at Harvard Law School. "It's a tough lift for Apple because traditional privacy as we know it is not at stake."
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Fast Company
Now Apple Could Make The iPhone 7 Even Harder To Unlock
Apple could easily make changes to the upcoming iPhone 7 that would render the current debate over providing a "back door" to encrypted phone data a moot point by making the phones even harder to unlock, security experts tell Fast Company...The federal district court is relying on a very old and very broad law called the "All Writs Act" to compel Apple to help the FBI. But there's nothing in the law that prohibits Apple from changing its product to make it safer from law enforcement inquiries, says David O'Brien, senior researcher at the Berkman Center for Internet & Society at Harvard. "It’s not clear that there’s anything in the All Writs Act that would prohibit Apple from doing that," O'Brien says. There would be some blowback, however. "It would probably result in more scrutiny from the government and from the public on the changes Apple is making," O'Brien says.
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Bloomberg
Netanyahu Isn’t Quite Right on the Constitution
An op-ed by Noah Feldman. It isn’t often that a sitting prime minister offers a lesson in comparative constitutional law. But Israel's Benjamin Netanyahu did so Monday while defending a bill that would allow three-quarters of the Knesset to expel a member who “supports terrorism by word or deed, or denies the Jewish, democratic character of the state of Israel.” Netanyahu compared the provision to the American rule that Congress may expel a member by two-thirds vote and to parliamentary rules in the U.K. and Canada that allow the expulsion of a member of Parliament for misconduct by a simple majority.
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The American Lawyer
Milbank Denies Claims It Sought to Censor Free Speech at Harvard
Milbank, Tweed, Hadley & McCloy’s decision to reallocate a $1 million gift originally meant to fund student events and journals at Harvard Law School has sparked an unusual public clash between the firm and a group of prominent law professors. After a student group called Justice for Palestine used $500 of Milbank’s funds to buy pizza for a panel discussion about free speech for pro-Palestinian advocates, the firm decided its gift to the school should no longer be used to sponsor student events. The student group had named Milbank as the sponsor of the event on a Facebook page. On Monday, a group of professors at top law schools posted an open letter to the law school community admonishing Milbank for seeking to influence discussions held on a law campus. The following day, Milbank partner Thomas Arena called the letter inaccurate in a response sent to the professors, a version of which was posted to the firm’s website on Wednesday...A statement from Harvard Law School, also published on Milbank’s website, said the firm was never involved in decisions about which events its gift would fund. It does not say how the Milbank funds will be used from now on. “We have an exceptionally strong relationship with Milbank, which has acted appropriately and with integrity in all respects, and we look forward to continuing that strong relationship in the future” the Harvard statement said.
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The Atlantic
One Judge Makes the Case for Judgment
Judge John Coughenour is a rebel. It’s not because—or not only because—he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s...Nancy Gertner, a Harvard Law professor and former federal judge, wrote in 2010 that judges were “surgeons without Grey’s Anatomy.” And that is the crux of the opposition to Coughenour’s argument: For too long Americans exclusively trusted the wisdom of judges who, of course, were just as a fallible as anyone else. Besides, it was judges themselves who became the first proponents of reform.
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