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News@Law, 03/31/2016

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

U.S. News & World Report
The Perils of an Empty Seat
An op-ed by Laurence Tribe. A one-line opinion. That's what the Supreme Court gave us this week, in what many expected to be one of the biggest cases of the year. At stake in Freidrichs v. California Teachers Association was the ability of public-sector unions to collect fees from non-joiners unwilling to pay for the unions' collective bargaining efforts. Some thought the fate of the American labor movement hinged on the outcome. The court had mountains of materials to consider. But it said only this: "The judgment is affirmed by an equally divided Court." If the Republican Senate keeps stonewalling Judge Merrick Garland's nomination, pretending that it can discharge its advice and consent duty by doing nothing, get used to hearing that sentence. This year, contraception, abortion, voting rights, religious freedom and affirmative action are on the court's docket. Next year and beyond we can expect cases on guns, campaign finance and the balance between security and privacy. But an incomplete court will deadlock 4-4 on many of these issues.
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This amazing Supreme Court theory could probably never happen (but maybe it should)
There is a fun legal theory floating around advocating one way the Obama administration could resolve the mess over Merrick Garland’s nomination to the Supreme Court. In brief, the theory says this: A few months from now, Garland could just show up at the Supreme Court building and start working...Dahlia Lithwick has a rundown of the theory, which comes from this Yale Law Review article by Matthew Stephenson, a law professor at Harvard. The idea takes off from the Take Care Clause of the Constitution, which says that the president “must take care that the laws be faithfully executed,” and the Appointments Clause...According to Stephenson, there is occasional tension between these two clauses, and it has become more pronounced in our highly polarized modern moment, because the president appoints cabinet secretaries, agency heads, and other executive positions as essentially surrogates to carry out his agenda, denying him the ability to make these appointments keeps whole swaths of the Executive Branch from functioning, thus inhibiting his ability to faithfully execute the laws.
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Stars and Stripes
Report: VA unfairly denied services to 125K post-9/11 veterans
The Department of Veterans Affairs is wrongfully denying services to roughly 125,000 post-9/11 veterans with other than honorable discharges, according to a joint study released Wednesday by two veterans advocacy groups and Harvard Law School...“Veterans who have served since 9/11 are being excluded from the VA at a higher rate than any other generation of veterans,” said Dana Montalto, the study’s author and a Liman Fellow with the Harvard Law School’s Veterans Legal Clinic. “They’re being denied very basic services.”
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Advocates decry insurer charges for AIDS drugs in Minnesota
Patient advocates say too many health plans are requiring patients with HIV to spend large sums on their medications, potentially raising concerns about discrimination. In a report provided this month to the Star Tribune, researchers from Harvard Law School and the Minnesota AIDS Project highlight health plan options on the state’s MNsure exchange that feature high degrees of “cost-sharing” for medications used by people with HIV. The report, which also looked at hepatitis C medications, is one of the latest to examine how health insurers in different states are covering HIV treatments on new government-run insurance exchanges. “I think they know the impact that putting high cost-sharing on these medications has to deter people,” said Carmel Shachar, an attorney at Harvard’s Center for Health Law and Policy Innovation. “We do think the pattern of tiering is suggestive of discrimination.”
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Good News! You’re Not an Automaton
An op-ed by Cass Sunstein. A good nudge is like a GPS device: A small, low-cost intervention that tells you how to get where you want to go -- and if you don’t like what it says, you're free to ignore it. But when, exactly, will people do that? A new study sheds important light on that question, by showing the clear limits of nudging. Improbably, this research is also good news: It shows that when people feel strongly, it’s not easy to influence them to make choices that they won’t like. The focus of this new research, as with much recent work on behavioral science, is on what people eat.
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The Harvard Crimson
Activists Weigh In on Sexual Assault Response at Law School
As discussions of sexual assault and Title IX pervade campus rhetoric, Harvard Law School alumna and activist Kamilah Willingham offered her views on the topics and reflected on her experiences at a conference Tuesday. The conference, entitled “Challenges in Title IX Advocacy,” was the first from Harassment/Assault Law-School Team, a new organization of Law School students that advocates for students who file sexual assault claims through internal procedures at schools in the Boston area...Jenae S. Moxie, a Law School student and the president of HALT, spoke during a panel discussions about her disillusionment with the Law School’s ability to educate students about sexual addition to student activism, [Diane] Rosenfeld said she is optimistic about the potential positive effects of her curriculum. “I have the incredible privilege and luxury of creating my own curriculum, and having created the gender violence program,” Rosenfeld said. “I wanted to develop Title IX as an incredibly strong potential source of civil rights in education.”
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You’re Presumed Innocent. Is Your Money?
An op-ed by Noah Feldman. Finally, someone's standing up for the rich. The Supreme Court struck a blow for wealthy criminal defendants today, holding that before trial the government can freeze only those assets that are demonstrably tainted, not all assets up to the value of the wrongdoing alleged. It's a distinction that doesn't matter to very many people, but matters a lot to a few. One result will be to make it a bit easier for rich defendants to use their (unfrozen) money to pay for lawyers of their choice, instead of getting by with an appointed public defender. But the court’s cautious plurality opinion, the result of a very strange voting lineup, relied on some seriously doubtful economic logic to get to the desired outcome.
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