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News@Law, 04/04/2016

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

Harvard Gazette
Hiding money in plain sight
...Although granted broad powers under the USA Patriot Act of 2001 to institute and enforce anti-money-laundering measures in a variety of industries, including banking, mortgage, insurance, and real estate, the Treasury Department has not required those involved in real estate closings, such as title companies, real estate and escrow agents, or lawyers, to ascertain or report who profits from the purchase and sale of properties. Juan Carlos Zarate ’93, J.D. ’97, is a visiting lecturer of law at Harvard Law School, a former deputy national security adviser in the George W. Bush administration, and a former assistant secretary of the U.S. Treasury for terrorist financing and financial crimes. The Gazette spoke with Zarate about the scope of the problem and what this new oversight might portend.
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The Harvard Crimson
Title IX Interpretations Could Threaten Academic Freedom, Report Says
Recent interpretations of Title IX by the Office of Civil Rights that broadly define sexual harassment have created a “chilling” effect at America’s colleges and universities, threatening academic freedom, due process, and free speech, argues a recent report released by the American Association of University Professors. The report characterizes OCR as conflating conduct and speech cases, creating a “seemingly limitless definition of harassment” without explicitly reaffirming the protected speech of classroom instructors, leaving faculty who teach and research sensitive topics related to gender, sex, sexuality, and rape law vulnerable to sexual harassment charges...“I have heard from a number of colleagues, not just in criminal law but in other subjects, that they are now unwilling to teach any cases having to do with sex or sexuality, that they’re scrubbing their syllabi of material that touches on those topics, because those topics are the areas in which [they] could be perceived as engaging in unwanted verbal conduct of a sexual nature,” said Harvard Law School professor Jeannie C. Suk, whose writings on the challenges of teaching rape law are quoted in the report. “As long as the standard that is being used looks at whether the act is regarded as undesirable or offensive, then of course anything that one teaches having to do with sex or sexuality can be regarded as undesirable or offensive.”
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The Harvard Crimson
Amid Debate, Law School Responds to Free Speech Concerns
Harvard Law School administrators amped up security and amended school policies in response to an escalating debate about free speech that began with a confrontation over posters last week. Students in the group Reclaim Harvard Law have occupied the Caspersen Center Student lounge—which they are calling “Belinda Hall”—since February to advocate for increased support for minority students on campus. Last Monday, third-year law student William H. Barlow, a vocal critic of Reclaim Harvard Law, posted signs in the lounge comparing the group to Republican presidential candidate Donald J. Trump, a move activists saw as offensive. Reclaim Harvard Law members removed the signs and told Barlow that they had jurisdiction over what could be posted in the space...Activists said they can control speech in the room because they are occupying the hall and designating it a make-shift office of diversity and inclusion. Therefore, they argue, they have the right to remove signs they consider to be offensive. “This is a place made for inclusion. Inclusion doesn’t mean that you let everything that anyone wants go up,” Bianca S. Tylek said. “Inclusion means protecting from exclusion.”...Students have taken to the pages of the Harvard Law Record to weigh in on the debate. The poster dispute has soured several students on the Reclaim Harvard Law movement, which they say they initially supported but now disapprove of activists’ tactics. Marlen Thaten called the movement “authoritarian” in a Record piece, and third-year Law student Stephen M. Silva said activists’ tactics have created a “pervasive” silencing effect on dissenting speech at the school. “They decided they’re going to stifle, basically, any other ideas people are going to say,” Silva said in interview. “I think it’s very unfortunate because they have some very good ideas.”
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The Harvard Crimson
Law Students Clash Over Posters and Free Speech
Tensions flared in a standoff between activists and opposing students at Harvard Law School Friday as an intensifying debate that began over posters evolved into one about rights to space and free speech on campus. The controversy began Monday, when third-year Law student William H. Barlow—a vocal critic of the Reclaim Harvard Law student group—put posters on the walls of the Caspersen Student Center lounge equating the activist movement to Republican presidential candidate Donald J. Trump. Activists removed the posters—an action Barlow considered a violation of his right to free speech...Reclaim Harvard Law member Rena T. Karefa-Johnson said activists decided to remove the posters they considered to be offensive, in part because the Muslim Law Students Association held a conference in the lounge the day Barlow put up signs referencing Trump...“This is an occupation. This is our space, our house,” Reclaim Harvard Law member Alexander J. Clayborne said. “Let Bill Barlow put up posters anywhere else, just not here.”
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The National Law Review
Ethical Dilemmas Surveyed Through Attorney-Client Confidentiality: The Lawyer & The Navy Seal
An article by Michael Shammas `16. The afternoon sun beats down, yet you persist. Your three comrades—tempered into friends by shared hardship—walk behind you. One ushers you over, whispers: “Look.” And you look. Beyond a sun-lit haze you see two red-bearded goatherds abreast their flock—and they, the goatherds, they too look—straight at you. One yields a crooked smile, waves. But deep down, this feels wrong; intuitively, you fear the men will compromise your mission, setting the lives of your fellow SEALs at risk. What do you do? There is little time as the goatherds walk away and recede into the valley. You agree to vote. “Shoot them,” whispers one comrade. “No,” says another. The third abstains. You have the deciding ballot, and your moral instinct says no (not to mention the natural and positive laws of war), and so you yourself say “no.” Despite the anomalous situation, suggesting governing ethics rules—especially international principles against killing civilians—might result in a less-than-optimal outcome, the problem is tough, so you gladly defer to guidelines long-ago dictated by custom, culture, the U.S. Navy. To obey is easy; to reason, hard.
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Bloomberg
Subverting Myanmar’s Constitution for Its Own Good
An op-ed by Noah Feldman. When the first act of a new legislature is to circumvent its country’s written constitution, it’s usually a bad sign. Not so in Myanmar, where the democratically elected parliament moved last week to create the post of “state counselor” and give the job to Aung San Suu Kyi, the leader and symbol of Myanmar’s long struggle against military dictatorship. She’s banned from serving as president by the constitution enacted under the military government that preceded hers, under a provision meant to prevent her from taking the office. Getting around it is a triumph of constitutional creativity and respect, not a worrisome undercutting of the rule of law.
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The [Fall River] Herald News
Kennedy, Keating back embattled EPA Clean Power Plan
Nearly 200 Democrats in Congress – including most from New England – are supporting the Environmental Protection Administration as it faces a legal challenge to its effort to regulate carbon emissions from coal-burning power plants. “The law is clear: The Clean Air Act gives EPA the authority to regulate air pollution and that is what the agency is doing with the Clean Power Plan rule,” Sen. Edward Markey, D-Mass., said during a conference call Friday with reporters to announce the filing of an “amicus brief” in support of the rule...A similar brief was filed Thursday by Harvard Law Professors Jody Freeman and Richard Lazarus on behalf of two former EPA administrators who had been appointed by Republican presidents Richard Nixon, Ronald Reagan and George H.W. Bush. Former EPA Administrators William D. Ruckelshaus and William K. Reilly are supporting the Clean Power Plan as a “pragmatic, flexible, and cost-effective pollution control program” that respects the authority of states. They argue that the rule “falls well within the bounds” of the agency’s authority to reasonably interpret broadly worded statutory language to address unforeseen problems without the need for congressional amendment of current law.
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