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News@Law, 03/02/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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The Atlantic
Donald Trump: The Protector
An op-ed by Einer Elhauge. Like many people, I have been wondering: What on Earth explains Donald Trump’s remarkable appeal to voters? I’ve come to the conclusion that the answer is fairly simple. The message of his Republican opponents has effectively been: We are more faithful to conservative principles. Trump’s message has been entirely different. He essentially says: I will protect you. I’m conservative, but if protecting you requires jettisoning conservative ideology, I will do so. Protecting you is the prime directive. This message has powerful resonance, especially for voters who feel the Republican Party has failed to protect their interests.
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The Washington Post
The forgotten history of Justice Ginsburg’s criticism of Roe v. Wade
Justice Ruth Bader Ginsburg is the Supreme Court’s most ardent protector of abortion rights, outspoken enough about their importance to become an icon to young feminists and a source of outrage among her detractors. With her valedictory on the court undetermined but within sight, Ginsburg, 82, may have only one more chance to leave a mark on reproductive rights. It comes in the most consequential abortion case during her time on the court...“Although she cares deeply about abortion rights, I would guess that she may have had less of an impact in this area than she might have wished,” said Richard Fallon, a Harvard law professor who studies the court.
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The New York Times
At Memorial, Scalia Remembered as Happy Combatant
Justice Clarence Thomas paid tribute on Tuesday to “Brother Nino” at a memorial service for Justice Antonin Scalia at the Mayflower Hotel attended by all eight remaining members of the Supreme Court...Prof. John F. Manning, a former law clerk who now teaches law at Harvard, said Justice Scalia welcomed debate and disagreement in his chambers, to a point. “When one of us got a little overinvested, he had to say, ‘Hey, remember, it’s my name that has to go on the opinion,’” Professor Manning said. “And especially with me, for some reason, this was often followed by the further observation, ‘And I am not a nut.’”
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Harvard Gazette
President Faust’s climate initiative awards $1M in grants
Ten research projects driven by faculty collaborators across six Harvard Schools will share over $1 million in the second round of grants awarded by the Climate Change Solutions Fund, an initiative launched last year by President Drew Faust to encourage multidisciplinary research around climate change...This year’s winners are:...Wendy Jacobs and Alma Cohen, Harvard Law School. Jacobs and Cohen will work with existing community organizations to encourage behavior changes that meaningfully reduce greenhouse gas emissions and build social and political support for policies to mitigate climate change...Katherine Konschnik and Jody Freeman, Harvard Law School. Konschnik and Freeman’s project, called Power Shift, will help policymakers, regulators, and stakeholders design a modern legal infrastructure to support 21st-century electricity by creating and supporting a new network of expert communities.
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Bloomberg BNA
Justices Kill State Effort to Get Data From ERISA Plans
The U.S. Supreme Court dealt a blow to state efforts to collect health data when it ruled 6-2 that Vermont's all-payer claims database is preempted by the Employee Retirement Income Security Act to the extent it seeks data from employer-sponsored health plans....Carmel Shachar, a clinical instructor at Harvard Law School’s Center for Health Law & Policy Innovation who filed a pro-database amicus brief, told Bloomberg BNA March 1 that the decision was “a very broad application of ERISA, as well as the preemption clause.” On that point, Shachar said the justices found ERISA's preemptive powers to apply, even though the Vermont program in question concerned areas “very different” from those regulated by ERISA—specifically, health-care spending and financing.
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CNBC
Does computer code count as free speech?
Is the FBI violating Apple employees' First Amendment rights in its efforts to extract data from a terrorist's iPhone?...Vivek Krishnamurthy of Harvard's Cyberlaw Clinic said some forms of expression can be ordered. "It's pretty clear there are certain types of speech you can't compel," Krishnamurthy said. "[The government] can't compel you to voice support of Republicans or Democrats or some other type of belief. But you can compel a private company to put a warning label on a product. So it can be constitutionally permissible in some circumstances."
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Bloomberg
Another Nomination Battle for Obama to Fight
An op-ed by Noah Feldman. The problem of presidential nominees who can’t get a vote from the U.S. Senate isn’t restricted to Supreme Court justices. It’s a recurring, structural issue that’s affecting executive officials of all kinds, including ambassadors. One partial solution to unfilled executive appointments, adopted by Barack Obama’s administration and by previous presidents, is to make someone the acting head of a department, then nominate that same person to fill the job permanently. Last year, the U.S. Court of Appeals for the D.C. Circuit issued a decision that makes this fix essentially impossible. Now the Obama administration has said it will ask the Supreme Court to reverse that decision.
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Harvard Law Record
Harvard Law Record Poll on Reclaim HLS Shows Divided Community
A recent Harvard Law Record op-ed questioned if the shield conversation really has two sides. This week, we polled members of the HLS community to find out...We received 517 individual responses. In addition, nearly 100 responses included expanded comments. Some of these comments are highlighted in this article, and all are published below the poll results. We appreciate all of those who took the time to thoughtfully respond and to share their feelings on the shield, Reclaim HLS, Belinda Hall and more.
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Bloomberg
Whereas, the Supreme Court Rules for Stuffy Language
An op-ed by Noah Feldman. Should laws be understood based on the way people speak? Or should they be interpreted according to technical rules of statutory construction, so that law becomes a specialized language game all its own? In a decision issued Monday, the U.S. Supreme Court voted, 6-2, for the second option. The case, Lockhart v. U.S., promises to be a classic. The court’s breakdown was about jurisprudence, not partisan ideology. And the issue was, remarkably enough, dangling modifiers.
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USA Today
Justices, law clerks, children remember Scalia
Justice Clarence Thomas choked up. Justice Ruth Bader Ginsburg got lost in her notes. Law clerks recalled stern admonitions with affection. Sons and daughters recounted family dinners, Sunday religious services and "the tickle monster." Justice Antonin Scalia was remembered Tuesday as a man whose brilliance and jurisprudence hid a softer side that included baseball, opera, red wine and pizza with anchovies, singing in his chambers and a sonorous laugh that reverberated through the courtroom...Two former law clerks regaled the audience with tales of how those opinions came together, often in raucous free-for-alls inside Scalia's chambers. "The whole thing was unforgettable," recalled Harvard Law School professor John Manning, who clerked for Scalia during the 1988 term. "His openness, his enthusiasm, his clarity, his playfulness, his common sense, his commitment to principle — all of this made even the blandest legal issue seem vivid and human and consequential."
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