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News@Law, 06/13/2016

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

The Wall Street Journal
Publish the Secret Rules for Banks’ Living Wills
An op-ed by Hal Scott. The Federal Reserve and the Federal Deposit Insurance Corp. recently determined that five of America’s largest banks do not have credible plans to go through bankruptcy without relying on extraordinary government support. If these five firms— J.P. Morgan Chase, Bank of America, Wells Fargo, Bank of New York Mellon and State Street—can’t develop “living wills” that satisfy regulators, then the Dodd-Frank Act authorizes the government to break them up as soon as 2018. What led to their failing grades on living wills? It can’t be lack of effort: Every year, American banks can each spend more than $100 million and one million hours preparing them, according to the Government Accountability Office (GAO). The real reason for failure is that the banking regulators have not disclosed enough details about how they assess the credibility of a living will. This opaqueness casts serious doubt on the legality of the determinations—and the threat to break up the banks.
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Constitution Daily
Podcast: Hamilton, the man and the musical
The 70th Annual Tony Awards will be held in New York City on Sunday, June 12, and the big winner is expected to be Hamilton, Lin-Manuel Miranda’s musical adaptation of Ron Chernow’s biography of the famous Founding Father...Joining We the People to remember “the 10-dollar founding father without a father” are two of the nation’s leading legal historians. Annette Gordon-Reed is the Charles Warren Professor of American Legal History at Harvard Law School. She is also the Carol K. Pforzheimer Professor at the Radcliffe Institute for Advanced Study and a Professor of History in the Harvard Faculty of Arts & Sciences. Michael Klarman is the Kirkland & Ellis Professor of Law at Harvard Law School.
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JAMA
Preventing Mitochondrial DNA Diseases: One Step Forward, Two Steps Back
An op-ed by Glenn Cohen and Eli Y. Adashi. On February 3, 2016, the Institute of Medicine (IOM) released its Ethical and Social Policy Considerations of Novel Techniques for Prevention of Maternal Transmission of Mitochondrial DNA Diseases report...Expansive in its purview and thorough in its scrutiny, the report concludes that it is “ethically permissible” to embark on clinical trials involving human beings, subject to rigorous safety and efficacy imperatives. The report further recommends that initial clinical trials be limited to male embryos whose mitochondria cannot be transmitted to their progeny. In so doing, the IOM is seeking to preclude transmission of unintended outcomes to the progeny. In an unforeseen turn of events, the release of the IOM report was preceded by the enactment of a federal statute that prohibits the FDA from considering research applications for the conduct of this therapy. This Viewpoint seeks to contextualize the IOM report by describing the drive to bring mitochondrial replacement therapy to the clinic and the statutory constraints blocking its adoption.
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WGBH
The Summer Olympics And The Zika Virus — Is It Safe To Hold The Games In Brazil? (audio)
Olympic athletes going to Rio de Janeiro might come home with more than just a medal. Some public health officials are concerned about athletes, tourists and members of the media getting bitten by mosquitos carrying the Zika virus...Dr. Holly Fernandez-Lynch (@PetrieFlom), signed the letter to the W.H.O. She is the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard University. From her perspective, the main concern is having athletes and tourists that could potentially carry the Zika virus return to their home country with a weak public health infrastructure, including the United States. Congress has not funded research regarding the Zika in a way that the CDC and the President has requested.
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The Boston Globe
After insurer changed policy, he’s saying goodbye to hepatitis C
John Tortelli recently received some good news: The virus that has lurked in his body for nearly four decades, threatening to destroy his liver, can no longer be detected in his blood. Tortelli, a 64-year-old retiree who lives in Arlington, contracted hepatitis C as a young man, from a blood transfusion during heart surgery. Over the years, the virus has led to fatigue, joint aches, mental fogginess — and continual worry that the infection might progress to cirrhosis, as happens to 5 to 20 percent of infected people...The advocates’ position got a big boost last month when a federal District Court judge in Seattle ordered Medicaid in Washington state to start covering the drugs regardless of the condition of the patient’s liver. A few days later, Florida — also facing a suit — adopted a similar policy change....Robert Greenwald, the Harvard Law School professor who sued Washington state, said he sent an e-mail to MassHealth director Daniel Tsai on Thursday, advising that Medicaid rules clearly require coverage. Asked whether he planned to sue Massachusetts, Greenwald said, “I’m not there yet. I have been assured they are working as quickly as they can.” But Greenwald, who directs Harvard Law School’s Center for Health Law and Policy Innovation, said if the state’s process “does not result in access mandated under law,” he will reconsider taking legal action.
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The Boston Globe
Aaron Hernandez hires Jose Baez and Harvard Law professor
Former New England Patriots star Aaron Hernandez has new lawyers for his upcoming double murder trial in Boston, a team led by the Florida attorney who represented Casey Anthony — who was accused of killing her toddler daughter — and a Harvard Law School professor who represents the family of an alleged Muslim terrorist shot by police...Joining Baez in representing Hernandez — who is already serving a life without parole sentence for the murder of Odin L. Lloyd in 2013 — will be Ronald S. Sullivan Jr., a Harvard Law professor who has represented the family of Usaama Rahim after the 26-year-old man was shot in Roslindale during a confrontation with Boston Police and Joint Terrorism Task Force members. Sullivan is also widely respected in the legal community for creating the Conviction Review Unit in the Brooklyn district attorney’s office. In that unit, prosecutors try to identify wrongful convictions instead of leaving it to the defense attorneys to take the first step.
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Bloomberg BNA
Coalition Pushes for TTIP to Cover Financial Services
U.S. opposition to language on financial services regulatory cooperation in the pending trans-Atlantic trade deal could be challenged by a new coalition of 14 European and U.S industry and business associations...Some Treasury Department officials are likely skeptical about whether trade agreements are the right forum to tackle to issue of regulatory harmonization, Mark Wu, an assistant professor at Harvard Law School who specializes in international trade and international economic law, told Bloomberg BNA.
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Bloomberg
Hey, Trump, Justice Frankfurter Was ‘Ethnic,’ Too
An op-ed by Noah Feldman. Donald Trump’s claim that a Mexican-American judge would be biased against him has put the topic of judicial ethnicity front and center. So it’s worth pausing to consider the most important -- and controversial -- discussion of the significance of a judge’s ethnic or religious background in the history of Supreme Court opinions. That would be this declaration by Justice Felix Frankfurter in 1943...Before you get excited about using Frankfurter’s oratory as a rebuttal to Trump, consider this: He prefaced the statement with a profession of his Jewishness that his colleagues tried to suppress. And he did all this in a dissent that argued that Jehovah’s Witnesses shouldn’t be exempt from pledging allegiance to the flag.
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Environment & Energy News
Term went from ‘sleepy’ to stunning
A Supreme Court term that started off as lackluster for environmental law enthusiasts has turned out to be one for the history books. But unlike some other years when a series of sweeping rulings set new precedent in environmental law, the events that triggered the most shock waves and headlines this term weren't opinions. Rather, they were the death of one of the high court's most dominant voices on environmental and administrative law, and an unprecedented move to block a landmark climate regulation while legal challenges were still pending in a lower court..."The fact is ... there were two stunning things that happened within Tuesday to Saturday," said environmental attorney and Harvard Law School professor Richard Lazarus. "Each one was a huge surprise." Speaking to an audience of environmental lawyers the week before those events, Lazarus noted presciently, "The court tends to start out looking like it's going to be sleepy, and by the end of the term they've got a lot of big hot-button issues." Overall, Lazarus said in an interview, the term has been "unsettling because of the uncertainty it means about future litigation in the court."
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CBS This Morning
Why you may be wasting perfectly safe food (video)
Ninety-one percent of Americans toss their food after the date on the labels have passed, but in many cases, they may actually be wasting perfectly safe food. There are three types of dates used on food labels: "sell by," "best if used by," and "use by." But all three have nothing to do with food safety. Rather, they signal how long the manufacturer thinks the food will taste best. "So the manufacturer will do taste tests with consumers and say, 'this is when everyone still thought my product tasted good,' and they're not about safety, but many people throw food away," said Emily Broad Leib, director of Harvard's Food Law and Policy Clinic..."Food safety means it was contaminated, you could get E.coli or salmonella, something like that.... We want to eat food that tastes good, that's good quality, but it's much more subjective," Leib said. "You're not going to get sick if you eat something. It's just about what you think tastes good."
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Bloomberg
Sanders Writes a Chapter in the Behavioral Science Textbook
An op-ed by Cass Sunstein. Bernie Sanders won't be the Democratic presidential nominee, yet so far he refuses to concede to Hillary Clinton, pledging to "continue to fight for every vote and every delegate we can get.” This is more than just stubbornness: Even if he bows out soon, Sanders and his supporters appear to believe more strongly than ever that the system is rigged against him and that Clinton is a captive of the banks -- and that Democratic voters have been rising up in support of his “political revolution, ” regardless of the actual vote count. What happened? The Sanders campaign has become a classic example of the phenomenon of “group polarization,” arguably more so than any campaign in recent memory -- even Donald Trump's, which has greatly benefited from the same phenomenon.
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Boston Review
Jefferson: Hero or Villain? It’s Complicated.
In their new book, “Most Blessed of the Patriarchs”: Thomas Jefferson and the Empire of the Imagination, historians Annette Gordon-Reed and S. Onuf take another look at the life and legacy of the third president. More a collection of interpretive essays than a cradle-to-grave biography, the book combines a careful analysis of Jefferson’s thought (the focus of Onuf’s influential body of work) with a deft portrayal of his personal life, closely attuned to his intertwined black and white families (the study of which Gordon-Reed revolutionized in her Pulitzer-winning 2008 volume The Hemingses of Monticello). I sat down with the authors to talk about the complexities of their central character, the shallowness of the hypocrisy charge, and the continuing importance of thinking seriously about Jefferson and his contemporaries in the age of “founder chic.”
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Time
Bernie Sanders Is Taking the Wrong Lessons From Sweden
An op-ed by Simon Hedlin `19...Many Clinton backers worry that Sanders is moving the party too far to the left, making the Democratic nominee less electable. But aside from electoral politics, another problem is that much of Sanders’ policy agenda, in an attempt to turn the U.S. into a Northern European welfare state, is ill-informed and would put America at great risk, if ever implemented. Considering all the praise that Sanders, a self-proclaimed democratic socialist, and his supporters have heaped on the leftist countries of Scandinavia in particular, they should look to Sweden for critical policy lessons. Sweden has already tried numerous of Sanders’ ideas, and unfortunately many of the senator’s proposals overlook the country’s successes and repeat its failures.
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Bloomberg
Trump Is No Legal Expert. But He’s Right About This One Thing.
An op-ed by Cass Sunstein. There is not much evidence that Donald Trump respects the independence of the federal judiciary, or that he appreciates constitutional limits on the power of the president. But even a broken clock is right twice a day. On one legal issue, Trump raises a legitimate question: Have courts gone too far in protecting libelous speech? Here’s what Trump said: I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money...It’s predictable that journalists would hate that statement, which is not exactly a model of clarity or statesmanship. But Trump is onto something.
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Bloomberg
Here’s How Far Some Justices Go to Defend the Death Penalty
An op-ed by Noah Feldman. A judge shouldn't be allowed to vote in a case involving a capital sentence when he was formerly the prosecutor who sought the death penalty in the same case. That sounds obvious, and the Supreme Court said so on Thursday. But three justices dissented, suggesting that the answer might not have been obvious after all. The dissents show how deeply divided the court really is over the death penalty – and how far the conservative justices are prepared to go in its defense.
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Bloomberg
The First Amendment Gone Wild
An op-ed by Noah Feldman. In a decision that begs to be characterized as “First Amendment gone wild,” an appeals court has all but struck down a 1988 law that requires pornographers to maintain records showing that actors aren’t underage. For good measure, the court said it violated the Fourth Amendment to require the documents to be available anytime for government inspection. These twin holdings are both plausible applications of recent Supreme Court doctrine. But the results are so absurd that they call out for review by the highest court itself.
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The New York Times
Review: Help Me, Obi-Wan Kenobi
Cass R. Sunstein is a professor at Harvard Law School, a former official in the Obama administration, an expert in behavioral science and constitutional jurisprudence, and the author of many books, including the best-selling (and somewhat controversial) “Nudge.” He is, in other words, a formidably accomplished intellectual, an authority on matters that lie beyond the ken of most ordinary citizens. But he is also a regular guy: a son, a father and a big fan of the “Star Wars” movies. His latest book, “The World According to Star Wars,” a kind of lay sermon on a sacred pop-cultural text, tries to fuse the strands of his identity, to bring his intelligence and expertise to bear on a phenomenon that is widely known and easily understood and to use that phenomenon to illuminate more arcane matters.
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