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News@Law, 02/29/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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I thought I could reason with Antonin Scalia: A more naive young fool never drew breath
An op-ed by Bruce Hay. In the two weeks since his death, many have spoken about Antonin Scalia’s undeniable impact on American law. As attention shifts to filling the vacancy he has left on the Supreme Court, I would like instead to talk about his less appreciated impact on contemporary physics...His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility. Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn.
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The New York Review of Books
The Scalia Myth
An op-ed by Laurence Tribe. Justice Antonin Scalia used to say, only partly in jest, that he preferred a “dead” to a “living” Constitution: for him, the whole purpose of any constitution worth having was to nail things down so they would last—to “curtail judicial caprice” by preventing judges, himself included, from manipulating the law to advance their own visions of good policy rather than faithfully doing the people’s bidding as expressed in binding rules. Yet Scalia managed to bring our Constitution to life more deeply than have many proponents of a “living” Constitution...Scalia’s ability to bring the Constitution’s text, structure, and history to the very center of the nation’s conversation through elegant and colorful prose should never be confused with the idea that his “originalist” methods actually served the disciplining and constraining functions he attributed to them. Nor should we permit his captivating rhetoric to seduce us into accepting the judgments he claimed those methods required him to reach.
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The Financial Times
Osborne should think again on his bank surcharge
An op-ed by Mark Roe. HSBC’s decision last week to keep its headquarters in London, after reports that it would leave the UK if the levy on bank liabilities were not lifted, will have been greeted with relief at the Treasury. However, there is good reason to think the Treasury got a bad deal, jeopardising financial safety for not very much in return. In his Autumn Statement last year, Chancellor George Osborne promised to phase out the levy, offsetting this with an 8 per cent surcharge tax on bank profits. Taxing bank profits is popular with voters, even though it makes the financial system weaker. Because it makes bank equity more expensive and ending the levy makes debt cheaper, the surcharge will push British banks to use less safe equity and more risky debt.
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Harvard Gazette
Clean Power Plan’s legal future ‘a mess’
So now what? The path ahead for President Obama’s Clean Power Plan went from arduous but somewhat clear to murky with the death of Supreme Court Justice Antonin Scalia on Feb. 13. The whirlwind week for the plan, a key commitment by the United States to reduce climate-changing carbon-dioxide emissions, started with the Supreme Court voting 5-4 to freeze the plan in place, halting implementation while legal issues are decided by the U.S. Court of Appeals for the D.C. Circuit and, likely, by the Supreme Court itself. Scalia’s death and the battle over selecting his successor that quickly developed between Obama and Senate Republican leaders have raised the prospect of an extended period with a Supreme Court split 4-4 between conservative and liberal justices ― in other words “a mess” for the plan, according to environmental law expert Richard Lazarus, the Howard and Katherine Aibel Professor of Law at Harvard Law School. Lazarus, who is serving as counsel in the case for two “friends of the court,” former Republican EPA administrators William Ruckelshaus and William Reilly, spoke with the Gazette about both the plan’s impending lower court hearing and its path ahead should it undergo Supreme Court review.
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Texas Abortion Case Tests Kennedy’s Commitment
An op-ed by Noah Feldman. With a new Supreme Court balance somewhere on the horizon, the end is coming for Justice Anthony Kennedy’s dominance of the court. The abortion case Whole Women’s Health v. Hellerstedt may be his swan song, and his last chance to leave a long-term impact on abortion rights. That’s hugely significant for the case that’ll be argued Wednesday. The fate of Texas’s restrictive abortion laws turns on the interpretation of the 1992 decision in Planned Parenthood v. Casey. And Casey was the case in which Kennedy first formulated the vision of autonomy and dignity that led him to become a pioneer of constitutional rights for gay people. Casey is the heart of Kennedy’s legacy -- and he’ll want to preserve it.
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That Time Ted Cruz Submitted a Supreme Court Brief Citing … Ted Cruz
An article by Michael Linhorst `17. Twelve years ago, in the fall of its 2003 term, the U.S Supreme Court received a written brief from Texas Solicitor General Ted Cruz with a very unusual footnote. The case was called Locke v. Davey, and it concerned the constitutionality of a Washington State college scholarship that excluded students studying religion—a key issue for the movement conservatives Cruz considered his political allies. Texas wasn’t a party in the case, but the ambitious lawyer was already gaining a reputation for inserting himself into national debates by filing briefs about attention-grabbing cases with no direct relation to his state. Like all legal briefs, Cruz’s cited cases, laws and law journal articles as authorities to back up his argument...Cruz didn’t name the student author in his brief. But if the justices had looked it up, they would have found a surprise: It was a 24-year-old Harvard law student named Ted Cruz...Leah Litman, a lecturer at Harvard Law School who served as a clerk for Justice Anthony Kennedy, agrees that it was “a little strange” Cruz didn’t identify himself. “He’s identified as the author of the piece [in the journal]. And when you cite a secondary source in a brief, you give the author. There really isn’t a good reason not to,” she says.
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Arkansas Democrat-Gazette
Aid for Arkansas’ hungry kids
An op-ed by Tommy Tobin `16. Almost a quarter-million young people in Arkansas are at risk of going hungry each summer. While it may be winter, we can prepare now to ensure that the eligible young people of Arkansas get the food for which they qualify. During the school year, over 230,000 young people receive free or reduced-price lunch at schools in Arkansas. During the summer months, no school can mean no meals for the state's low-income children, which results in already-tight family budgets becoming further constrained. According to the Food Research and Action Center, only 23.3 percent of these low-income students receive the summer meal equivalent of the school lunch program.
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The Washington Post
A 12-year-old girl is facing criminal charges for using certain emoji. She’s not alone.
The smiley face, heart, praying hands and other “emoji” have become the way millions of Internet users playfully punctuate their texts, posts and messages, but for one middle schooler the icons brought the police to her door. The 12-year-old from Fairfax, Va., has been charged with threatening her school after police said she posted a message on Instagram in December laden with gun, bomb and knife emojis...“You understand words in a particular way,” said Dalia Topelson Ritvo, assistant director of the Cyber Law clinic at Harvard Law School. “It’s challenging with symbols and images to unravel that.” Ritvo said that some of these issues will likely play out in the Fairfax case.
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New Documentary Exposes How Montana’s Milk-Expiration Rules Waste Food
Earlier this month, an excellent, short new documentary debuted. It focuses on one type of state laws that senselessly promote food waste. The documentary, Expired? Food Waste in America, is produced by the Harvard Food Law and Policy Clinic and Racing Horse Productions. It uses the clear shortcomings of a mandatory Montana milk-expiration-date law as a hook to illustrate broader problems with state food expiration-date mandates..."Out of state dairies often can't get milk to the store quickly enough for it to be put on the shelf in time to be sold (since consumers want milk with at least a few days on it), so many out-of-state dairies are no longer selling in Montana," says Harvard Law School Prof. Emily Broad Leib, one of the film's producers, in an email to me this week. "According to local advocates, milk in Montana also costs a lot more than milk in surrounding states."
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Good News for Campaigns: Go Ahead and Lie
An op-ed by Noah Feldman. Tired of campaign lies and the lying liars who tell them? You’ll be sorry to hear that an Ohio law that prohibited false statements about a candidate for office was struck down this week by the U.S. Court of Appeals for the 6th Circuit, some 25 years after it was upheld by the same court. The decision is probably correct in light of the U.S. Supreme Court’s expansive new free-speech precedent. But it’s worth pausing to note just how far the courts have gone in protecting falsehood.
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