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The Boston Globe
From judge to justice: the case for Merrick Garland
An op-ed by Laurence Tribe.
five decades teaching law, I’ve been lucky enough to know many Supreme Court justices. I’ve counted them among my friends, colleagues, students, and research assistants. I’ve seen that success on the court requires diverse traits: deep knowledge of the law, humility about the judicial role, an understanding of and concern for law’s real-world impact, and the ability to build coalitions on the bench. Having known Chief Judge Merrick Garland for over 40 years, I’m confident he possesses all these qualities and more. He will be among our nation’s finest justices, and I strongly encourage the Senate to end its obstructionism and confirm him to the court.
The Wall Street Journal
Chinese Market Offers New Life to Many Drugs
Drugs that failed to make it to the market in the U.S. and elsewhere are finding new life in China...But the new trend also raises the question of whether China has become a dumping ground for inferior drugs. I. Glenn Cohen
, a Harvard Law School professor who studies medical ethics, said that because of differences in regulatory standards it isn’t unusual or unlawful for a company to get a drug approved in one jurisdiction and not another. For one thing, in China a drug doesn’t have to prove superiority over existing drugs—a major hurdle in the U.S., where 90% of candidates get dropped in the clinical-trial process.
Can the Supreme Court Demand a Compromise? It Just Did
An op-ed by Noah Feldman.
It’s happening: The Supreme Court is getting desperate. With a 4-4 tie looming over whether religious organizations have to file a form with the government requesting an exemption from the mandatory contraceptive care provisions of the Affordable Care Act, the justices took an extreme step. They issued an order that basically told the federal government and the religious entities to reach a compromise -- and described what the compromise would look like. Federal district court judges will sometimes tell the parties that they’d better compromise, or else they might not like the results that will follow. The Supreme Court essentially never does, both because it lacks leverage and because it gets involved in cases with the intention to make new law, not to resolve particular disputes. But we’re in new territory here. The Supreme Court is trying to figure out how to do its job with eight justices -- a situation that might persist not just through this Supreme Court term, but through the next one as well.
The Commodification of Higher Education
...Few would argue that the rankings have helped shape a world in which students are seen as consumers, and colleges and universities as commodities. The rankings are a key reason the higher-education landscape today operates like a marketplace in which institutions compete to convince the best students to buy their product...And as for the movement away from admissions tests? Fewer and fewer colleges may be requiring applicants to submit scores, but that doesn’t mean their presence is waning. According to a recent Education Week analysis, high-school testing is tilting heavily toward those very exams: Twenty-one states now require students to take the SAT or ACT, and a dozen use one of the exams as part of their official, federally mandated accountability reports on high-school students. As the Harvard Law professor Lani Guinier
, a staunch critic of elite-college admissions, wrote in her book, The Tyranny of Meritocracy: “This is testocracy in action.”
How can you defend a foreigner who came to the United States with the likely intent of causing harm to Americans? For attorney James B. Donovan, a 1940 graduate of Harvard Law School, the real question at the height of the Cold War was: How can you not?...In 1962, with the backing of President John F. Kennedy ’40, Donovan traveled to East Berlin to negotiate a swap: Abel for American spy plane pilot Francis Gary Powers, imprisoned in the USSR. At Harvard Law School in the late 1930s, Donovan lived in Walter Hastings Hall, served as chair of the Law School yearbook, and studied under later Supreme Court Justice Felix Frankfurter. As an alumnus, he donated his legal fee from the Abel case to Harvard and two other universities. On Wednesday, the Law School’s Program on Negotiation
will present a screening of Steven Spielberg’s “Bridge of Spies,” a film about the Abel-Powers negotiations in which Tom Hanks plays Donovan. Afterward, Dean Martha Minow
will discuss the film with Professor Michael Wheeler of the Business School; Donovan’s granddaughter Beth Amorosi, president of AMO Communications LLC; and Donovan’s grandson John Amorosi, partner in the law firm of Davis Polk & Wardwell.
Unions Get Lucky at the Supreme Court
An op-ed by Noah Feldman.
This was supposed to be the year when the Supreme Court would deal a major blow to labor unions, reversing a 1977 precedent that says nonunion members can be required to make payments in lieu of dues to the union. In 2014, the court came close to doing exactly that in a 5-to-4 opinion that telegraphed its intention to do so in the near future. But the death of Justice Antonin Scalia was a game-changer, taking away the fifth vote that would’ve been necessary to repudiate the precedent. Today the court issued a one-sentence opinion that proved both that there were briefly five votes to overturn the precedent, and that Scalia’s death has saved unions from constitutional disaster. The court said simply that it was divided 4-4, and that the lower court’s opinion based on the precedent would therefore be upheld.
How the Republicans could stop Donald Trump
An article by Laurence Tribe.
Suppose that Trump continues to rack up delegates in the Republican primaries but resistance to his candidacy is growing in the party’s barely surviving establishment. At the Republican convention—to be held 18-21st July in Cleveland, Ohio, to choose that party’s presidential nominee—not all state delegates are obliged by the rules to vote for the candidate who won their state’s primary. Moreover, the selection of those delegates is also an internal party matter—and many in the Republican Party are wary of Trump. Thus, Trump could win the largest number of votes in the Republican primary process, but still not obtain the party’s nomination to run for President. Political commentators are speculating about a contested Republican convention between Trump and a Republican establishment favourite like John Kasich, the Governor of Ohio, or even Senator Ted Cruz of Texas, a more doctrinaire conservative than the relatively unpredictable Trump. All sorts of procedural gambits could be deployed at the convention in a pitched battle to determine the party’s nominee.