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News@Law, 03/01/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Harvard Gazette
The costs of inequality: A goal of justice, a reality of unfairness
When starting a semester, Harvard Law School (HLS) Professor Carol Steiker likes to ask her first-year criminal law students to describe what they think are the biggest societal changes of the past 40 years. The students often cite the rise of social media, or global warming, or same-sex marriage. Then it’s Steiker’s turn. “I show them the statistics,” said Steiker, the School’s Henry J. Friendly Professor of Law, “and they are stunned.” Her numbers show mass incarceration in the United States...The Sentencing Reform Act of 1984, part of the Comprehensive Crime Control Act, enacted a sweeping revision of the criminal code. The legislation established the U.S. Sentencing Commission and tasked it with providing guidelines to federal courts — a radical shift in policy, since judges previously had wide discretion in sentencing. The commission introduced mandatory sentencing for various crimes and eliminated federal parole for some cases, immediately boosting prison rolls. Instead of improving fairness in sentencing, as was intended, the new system wound up promoting inequality, says HLS lecturer Nancy Gertner, herself a former federal judge. Judges suddenly had to hand down standard sentences to those convicted of some specified crimes who had particular criminal histories...In addition, court systems around the country increasingly are outsourcing their probation operations to private firms that make money by charging offenders extra fees. “The private company may have little or no interest in achieving justice,” said Jacob Lipton, who leads Harvard’s Systemic Justice Project along with HLS Professor Jon Hanson.
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Boston Review
Pauli Murray, Eleanor Roosevelt’s Beloved Radical
A book review by Kenneth Mack. During her long and contentious life that spanned much of the twentieth century, Pauli Murray (1910–1985) involved herself in nearly every progressive cause she could find. Yet the contributions of this black woman writer, activist, civil rights lawyer, feminist theorist, and Episcopal priest have largely escaped public attention. Murray earned a reputation as an idealist who saw the world differently from many of the activists who surrounded her. She also walked away from several important organizations and movements when they were at the height of their influence. At the same time, her actions have seemed prescient to those involved in many of the social movements that have subsequently claimed a piece of her legacy. Through her friendships and writings, Murray left a long list of people deeply influenced by her, including Eleanor Roosevelt, Representative Eleanor Holmes Norton, social activist Marian Wright Edelman, and Justice Ruth Bader Ginsburg. Murray’s life story deserves to be made available to the larger public, but how does one do so in a way that honors her own obdurate unwillingness to be reduced to any clear set of vectors—to be, in effect, agreeable?
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Bloomberg
Sometimes a Judge Has to Step Aside
An op-ed by Noah Feldman. Remember when Justice Antonin Scalia refused to recuse himself from a case involving then-Vice President Dick Cheney, even though they’d just been on a duck-hunting trip together? That episode yielded a priceless Scalia memorandum-opinion in which he declared, among other things, that he’d never been in the same blind with Cheney on the trip. But the main take-away from the episode was that Scalia -- and no one else -- got to decide whether he should be recused. On such matters, the justices’ own decisions are final.
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National Law Journal
Alito and Thomas Make Pitch to Property Rights Advocates
Two U.S. Supreme Court justices on Monday sent strong signals to property rights advocates that they are prepared to examine the constitutionality of state unclaimed-property laws and so-called inclusionary housing ordinances. Although Justices Clarence Thomas and Samuel Alito Jr. agreed with the high court’s denial of review in Taylor v. Yee and California Building Industry Association v. City of San Jose, they wrote separately—Alito in Yee and Thomas in San Jose—to raise due process and takings concerns. In Yee, Harvard Law School’s Laurence Tribe, representing Chris Taylor, challenged on due process grounds California’s Unclaimed Property Law, which permits the state to confiscate forgotten security deposits, uncashed money orders, unused insurance benefits and other funds if the assets lie dormant for three years.
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Brandeis Now
Martha Minow awarded Gittler Prize
The annual Gittler Prize, which honors contributions to racial, ethnic or religious relations, was awarded to Harvard Law School Dean Martha Minow at Brandeis Thursday. “It’s a distinct honor for Brandeis to recognize Martha Minow, one of the world’s leading figures in bringing legal ideas and scholarship to bear on issues of identity, race and inequality […]
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Bloomberg
What Being Reckless Means to Today’s Courts
An op-ed by Noah Feldman. Is it domestic violence if you didn’t mean to hurt your partner but recklessly did so anyway? Ordinarily, the U.S. Supreme Court wouldn’t weigh in on such a question, because the misdemeanor crime of domestic violence is determined state-by-state, not by federal law. But Monday the justices heard arguments on exactly that question, in a case involving a federal law that prohibits people convicted of domestic violence from having guns.
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Forbes
Supreme Court Takes Pass On California Unclaimed-Property Law, But Alito Issues A Warning
A California law that allows the state to seize unclaimed property after three years without making much of an attempt to contact the owners will not be reviewed by the U.S. Supreme Court, but Justice Samuel Alito warned that such laws could face a serious constitutional challenge in the future. ...  In a brief penned by lawyers including Lawrence Tribe of Harvard Law School, challengers urged the Supreme Court to grant certiorari because “the UPL is a recipe for abuse.”
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New York Times Magazine
The First Birther Lawsuit Against Ted Cruz Will Be Heard Tomorrow
The mostly but perhaps not entirely dismissible case against Ted Cruz's eligibility to run for president will begin to unfold on Tuesday in front of New York State Supreme Court Justice David Weinstein. He'll be hearing arguments in a lawsuit filed by two New Yorkers who claim that the junior senator from Texas, born in Calgary to an American mother and Cuban father, is not a “natural-born U.S. citizen,” and thus is constitutionally disallowed from becoming president of the United States. ... Most legal scholars have said that Cruz's mother's citizenship settles the question; there have been a few dissenters, though, notably Harvard Law School's Laurence Tribe has argued that Cruz is now arguing against his own strict reading of the Constitution.
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U.S. News & World Report
Cruz Team to Judge: Kill Eligibility Lawsuit on Technicality
As Iowa caucus winner Ted Cruz makes last-minute appeals for votes during Tuesday’s 11-state Republican primary bonanza, his legal team will quietly urge an Illinois judge to kill a lawsuit that claims he's ineligible to be president. The lawsuit is being heard in a state court system that grants ordinary voters standing to challenge a candidate’s ballot access, a soft target for opponents of the Canada-born Texas senator...“I do think a state court path is the most promising for challengers to Ted Cruz's eligibility at this pre-nomination stage,” says Harvard Law School professor Laurence Tribe. His GOP rivals are “the only plausible federal plaintiffs, but even their status would be a bit tenuous on ripeness grounds," he says. Tribe, a nationally prominent legal expert who taught Cruz constitutional law, said earlier this year it’s unclear if Cruz meets the Constitution’s undefined “natural born citizen” requirement, giving intellectual heft to Cruz critics.
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The Harvard Crimson
Harvard Files Amicus Brief Against Graduate Student Unionization
Harvard jointly filed an amicus brief to the National Labor Relations Board on Monday arguing against the unionization of graduate students, joining six other Ivy League universities, Stanford, and MIT in a call for the board to uphold existing rulings that define the relationship between private universities and graduate students as strictly academic....John T. Trumpbour, research director of the Labor and Worklife Program at Harvard Law School, said he thought the University’s move was not surprising. “I think that the private universities really feel that they are at a turning point, so a lot of them really want to do as much as they can to stop these victories now, and this they see as a very crucial decision,” Trumpbour said. He added that if a Democrat is elected the next U.S. President in 2016 and the NLRB rules in favor of graduate students, it could be difficult for a future board to reverse that decision.
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