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News@Law, 06/06/2016

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

The Boston Globe
Recognizing racism in Trump’s call for judge’s recusal
An op-ed by Andrew Manuel Crespo. First he called Latinos “rapists.” After that, Donald Trump forcibly ejected the country’s leading Latino journalist from a press conference, swiped at Jeb Bush for being married to a Latina, praised supporters who assaulted a Latino man, and sharply criticized the country’s only Latina governor — a fellow Republican. In terms of denigrating Latinos, that’s a hard list to top. But Trump’s most recent attack, this time against federal judge Gonzalo Curiel, is among his very worst. Unanimously confirmed by the Senate, Judge Curiel is presiding over a lawsuit that accuses Trump of swindling students at the unaccredited Trump “University,” which Trump’s own employees have described as a fraud. At a recent rally, Trump said that Judge Curiel should step off the case, and then told the crowd, who had previously chanted “build that wall,” that Judge Curiel, born in Indiana, “happens to be Mexican.” That comment was widely criticized as coded racism. A week later, however, Trump doubled down, telling a reporter that Judge Curiel’s “Mexican heritage” disqualifies him from the case because, in Trump’s words, “I’m building a wall. It’s an inherent conflict of interest.” Being Latino, that is. Only numbness to Trump’s streaming insults could spare this latest slur from becoming a campaign ender.
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The Washington Post
Will eight justices become the new normal?
An op-ed bWith 24 cases still to decide this term and only eight justices to decide them, the Supreme Court has mustered all its resources to find (or manufacture) consensus. Many rulings — even those with lopsided majorities — hint strongly of compromise. So far, the justices have mostly decided not to decide, drafting narrow opinions that leave big questions unanswered. It is in vogue to treat this term as a one-off, yet another result of madhouse election-year politics. On that view, the court just needs to tread water a while longer. In the meantime, each of us can hope that justices who share our particular vision will end up with a majority. But when “exceptional” circumstances endure long enough, advance powerful political interests and are tolerated by the public, they can easily become the new normal.
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The Wall Street Journal
At Last, A Supreme Court That Does Less
An op-ed by Cass Sunstein. Many observers, especially Democrats, have deplored the fact that the Supreme Court is now sitting with just eight justices, thanks to the partisan standoff over replacing the late Antonin Scalia. But the current situation has had an unexpected consequence: a significant increase in judicial “minimalism” and a big decrease in grand, far-reaching rulings. Both Democrats and Republicans should be celebrating—and hoping that the court continues to embrace the minimalist approach to constitutional law after the current vacancy is filled. Chief Justice John Roberts has long championed what he calls “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” That simple principle contains two different ideas.
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Outsmarting the Debt Trap
Looking at the totals on your credit card bill, you might wonder, how did I get in this situation? If you intended to only use your card for emergencies but ended up using it for life’s little extras, does that make you irresponsible, immature, or reckless? Behavioral economics says it just makes you human...“We get the money now, when we take a loan, and we pay it back some time in the future. This temporal component triggers a host of behavioral psychological effects,” says Oren Bar-Gill, a Harvard Law School professor who specializes in law and economics. “One of them is basic myopia. We think more about the present and less about the future, and so we’re more likely to take on debt, because we don’t put enough weight in our decision-making process on the future paybacks.”
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The Hill
Time for a broad approach to clemency
An op-ed by Marc Mauer, Nancy Gertner, and Jonathan Simon. Despite growing national discussion on criminal justice reform, Weldon Angelos sits in a federal prison serving out his 55-year prison term. Angelos was convicted in 2004 for three marijuana sales to an undercover agent totaling about $1,000 within a 72-hour period. During the course of these transactions he possessed a gun, which he did not use nor threaten to do so. But because of federal mandatory minimum sentencing laws, the sentencing judge was obligated to impose this draconian prison term because he had committed a repeat drug offense with a firearm, all the while acknowledging that the sentence was excessive. While President Obama has stepped up the pace of granting clemencies in drug cases, his total since taking office is only 306. With 85,000 drug offenders in federal prisons, many deserving of consideration, the pace of commutations to date is encouraging but still quite modest. With only months to go in this administration there is growing concern that the clemency initiative announced by the Department of Justice in 2014 will fall far short of expectations.
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Radio Open Source
Sex and Safety on Campus (audio)
For decades now, we’ve worried about an epidemic of sexual assault and un-safety at American colleges and universities...Harvard Law School professor Jeannie Suk begins the show with a provocative statement. In an article co-written with her colleague and husband Jacob Gersen, Suk faults universities for overcompensating, after years of neglect, on matters of sexual safety by built a paranoid atmosphere and a self-defensive “sex bureaucracy.”
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The Wall Street Journal
Local Roots, Universal Rights
A book review by Samuel Moyn. A few years ago, the British human-rights lawyer Philippe Sands received an invitation to give a lecture in Lviv, Ukraine, the city where his grandfather had been born and lived as a young man. As he prepared his lecture on genocide and crimes against humanity, Mr. Sands learned that the two men responsible for those very concepts—and thus for his own professional concerns—were also intimately connected with the Galician town, which since World War I has passed from Austro-Hungarian through Polish, German, Soviet and Ukrainian hands. One of these two Jewish lawyers, Hersch Lauterpacht, was born near Lviv and spent much time there. The other, Rafael Lemkin, trained in law at the city’s university, where he and Lauterpacht shared some influential teachers. They were also both present at the Nuremberg trials, where the legal concepts they had each forged were pioneeringly used in the case against the Nazis.
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Hometown Life (Michigan)
Livonia native new Harvard Law School student president
Law school wasn’t originally in Nino Monea’s [`17] plans. The Livonia Franklin High School alumnus attended Eastern Michigan University, not going in thinking he’d be interested in law. After participating in several organizations, such as mock trial and moot court, and taking constitutional law classes, the law began to appeal to him. Now, going into his third year of law school at Harvard, he’s been named the law school’s student government president, a position he can almost guarantee hasn’t been held by a Livonia native before...Monea recently wrapped up finals and is in Washington, D.C., for the summer, interning at the Department of Justice in its Antitrust Division before returning to school in the fall. There, he hopes to help shape the role of the student government leadership, which he said recently changed in its position on campus to be more active.
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USA Today
I’m a living argument for affirmative action
An op-ed by Joseph Gallardo `19. As a beneficiary of the exact affirmative action policy awaiting its fate this month at the Supreme Court, I feel compelled to share my story. There are many criticisms of affirmative action, and I believe most of them are flawed. One argument is that affirmative action is counter-productive for minorities — that we are better off at “slower-track” schools. But my life is evidence to the contrary. I struggled mightily in school, in part because of my family’s frequent moves in search of safer neighborhoods. I had gone to three high schools and was anticipating a move to a fourth when, a few weeks into my sophomore year, I decided to drop out...But then something happened. With the help of tutors, mentors and caring professors, I began to excel at the university. In a matter of months, I belonged at UT— and I knew it.
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The New York Times
The Anti-P.C. Vote
We know that resentment is driving much of Donald Trump’s success — resentment of elites, of the political class, of illegal immigrants, of protesters, of the media — and perhaps most particularly of changes in the demographic makeup of the country that Trump and his followers find unwelcome....Simon Hedlin [`19], a public policy researcher, noted that since reactance is driven by perceptions rather than by facts, this works well in Trump’s favor, considering his often cavalier relationship with the truth. Perhaps more significantly, Hedlin noted that he and Cass Sunstein, a Harvard Law professor and former top aide in the Obama administration, conducted research that shows that some people will reject a policy or action that is to their advantage when they feel pushed or forced into making the “correct” decision.
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New Medi-Cal rules ease access to hepatitis C drugs
California’s revised eligibility rules for hepatitis C drugs appear to be easing Medi-Cal patients’ access to the highly effective medications, according to state data. Yet even with the relaxed guidelines, the vast majority of those on Medi-Cal with hepatitis C still aren't getting the costly drugs, state health officials say..."A really large state took a bold move and really reduced the restrictions, and that was a great first step toward sending the message that, 'we understand how important it is to provide treatment access to people living with [hepatitis C],'" says Robert Greenwald, director of Harvard Law School's Center for Health Law and Policy Innovation.
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Is Zoo Liable for Harambe’s Death? (video)
Were laws protecting animals violated in the shooting of a gorilla at the Cincinnati Zoo? [Fellow] Delcianna Winders of the Harvard Animal Law & Policy Program joins Sue O'Connell to discuss.
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The New York Times
A Harvard Professor Goes ‘Star Wars’ Crazy
It was very hot last Tuesday night in the SoHo apartment of Jenna Lyons and Courtney Crangi, and not just because it was about 80 degrees outside and the air-conditioning unit was not up to the job. It was hot in the metaphorical sense, with the living room filled with members of the old guard more famous for their actual names than their social media handles. Tina Brown, Henry Kissinger, Walter Isaacson, George Soros: people like that...The occasion was the publication of “The World According to Star Wars” (Dey Street Books), by Cass R. Sunstein, a professor at Harvard Law School and a former Obama administration official. It brings together themes from the “Star Wars” saga and the story of how it came to be, using that as a lens to look at the world. It’s “Freakonomics” meets the Death Star, if you will, with meditations on the bonds of fathers and sons.
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Democracy and the Death Penalty
An op-ed by Noah Feldman. One Louisiana county accounts for half the state’s death sentences – even though it has just 5 percent of the state’s population and 5 percent of its homicides. On Tuesday, Justice Stephen Breyer cited this fact about Caddo Parish, Louisiana, in a dissenting U.S. Supreme Court opinion arguing that the death penalty is unconstitutional. The “arbitrary” factor of geography, Breyer proposed, is a reason to think that the death sentence is cruel and unusual punishment prohibited by the Eighth Amendment. Is Breyer right?
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Facebook, stand up or get out
An op-ed by lecturer Thomas Rubin. Facebook ran head-on into the First Amendment last week, and the result wasn’t pretty. It started with the company sending Sen. John Thune a lengthy explanation of its editorial process in the trending news section of the service, in response to a demand following allegations of political bias. It ended with the revelation that tech legend Thiel has been secretly funding Hulk Hogan’s lawsuit against Gawker. The Facebook angle there: Thiel was an early investor and sits on its board...There’s no precedent for a media company to account to Congress, instead of to its customers, about its editorial process. And it’s a safe bet that no media company has allowed the surreptitious funder of a libel suit against a corporate partner to serve on its board, given the conflict with its mission and duty.
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Victim Statements at 9/11 Trials? Not Fair
An op-ed by Noah Feldman. I've been generally sympathetic to the military prosecutors seeking to convict the 9/11 planners in Guantanamo. My take has been that they are honorable people trying to accomplish a task that may be impossible, namely making the tribunal into something more than a show trial. But now the prosecutors have made a serious misstep in the form of a foray into public relations. They’re asking the court to allow public testimony by ten elderly, sick relatives of 9/11 victims this October -- before the guilt-or-innocence phase of the trial has begun. Such testimony is legally unnecessary before the sentencing phase, when it's potentially plausible to allow victim-impact statements.
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‘Star Wars’ Is Really About Feminism. And Jefferson. And Jesus.
An op-ed by Cass Sunstein. Thirty-nine years ago, on May 25, 1977, a movie was released with a somewhat ridiculous name: "Star Wars." (It’s now called "Episode IV: A New Hope.") Almost no one thought that it would do well, and nobody could have predicted it would become the defining saga of our era. How did it manage to do that? One answer is that like a great novel or poem, Star Wars doesn’t tell you what to think. You can understand it in different, even contradictory ways. Here are six of those ways.
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Teachers Need Free-Speech Protection, Too
An op-ed by Noah Feldman. Are teachers entitled to free speech in the classroom? As a teacher of free-speech law, I've got a particular interest in this broadly important question. Yesterday a federal appeals court said the answer was no -- at least at public schools below the university level. The decision makes some sense in light of existing precedent. But the Supreme Court has never directly addressed the issue. When it does, it should consider the possibility that the whole law of public workplace free speech has gone awry -- and that teachers as well as other public employees should be given greater latitude to express their opinions.
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