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News@Law, 06/27/2016

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

WBUR
Breaking Down 4 Major Supreme Court Decisions (audio)
Four major Supreme Court decisions were released Thursday that amount to a win for supporters of affirmative action, a setback for President Obama's immigration plan and significant implications for mandatory minimum sentencing. Guests: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst. Charles Fried, professor of law at Harvard Law School and former U.S. solicitor general.
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The New York Times
Supreme Court Upholds Affirmative Action Program at University of Texas
The Supreme Court on Thursday rejected a challenge to a race-conscious admissions program at the University of Texas at Austin, handing supporters of affirmative action a major victory....Supporters of affirmative action hailed the decision as a landmark. “No decision since Brown v. Board of Education has been as important as Fisher will prove to be in the long history of racial inclusion and educational diversity,” said Laurence H. Tribe, a law professor at Harvard, referring to the Supreme Court’s 1954 decision striking down segregated public schools.
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The Boston Globe
High court gives victory to supporters of affirmative action
The Supreme Court on Thursday upheld the University of Texas’s consideration of race in its admissions policy, handing a victory to supporters of affirmative action in a case closely watched by universities in Massachusetts and across the country...“The decision means that race-conscious affirmative action programs in higher education, like the one Harvard University has, for example, will be upheld as long as they follow the court’s guidelines of avoiding crude racial quotas,” and are finely tuned, said Laurence H. Tribe, a professor of constitutional law at Harvard Law School. If the court had ruled the other way, he said, it could have ended any consideration given to race in college admissions. Instead, he said, the court “rendered a huge national reprieve for racial inclusion.”
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Bloomberg
On Affirmative Action, Supreme Court Rules for Humility
An op-ed by Cass Sunstein. In refusing to strike down a race-conscious admissions plan at the University of Texas at Austin on Thursday, the Supreme Court did more than uphold an affirmative action program. Just as important, it struck a much-needed blow for judicial modesty. The justices showed an awareness that others might know better than they do. We could use a lot more of that. The crucial part of Justice Anthony Kennedy’s majority opinion came toward the end. “Considerable deference is owed to a university," he wrote, "in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
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Bloomberg
Invoking Racial Justice at the U.S. Supreme Court
An op-ed by Noah Feldman. The Supreme Court ruled Monday that if the police stop you illegally but then find out that there’s a traffic warrant out for you, they can search you and charge you with a crime if you're carrying something illegal. The 5-to-3 decision can be read as an implicit vindication of controversial stop-and search policies. In a blistering dissent, Justice Sonia Sotomayor invoked Ferguson, Missouri, to argue that the court's decision impugns the dignity of the individual. She said that the effects will be felt disproportionately by “black and brown parents” who for generations “have given their children ‘the talk’” out of “fear of how an officer with a gun will react to them.”
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Bloomberg
Three Lessons From Obama’s Immigration Defeat
An op-ed by Noah Feldman. There’s no question that President Barack Obama suffered a significant loss today when a deadlocked Supreme Court left in place a lower court freeze on his signature immigration reform. It’s also true that the Republican Senate played a major role in this defeat by refusing to confirm -- or even vote on -- Obama’s nominee, Judge Merrick Garland, who surely would have voted to lift the stay. But it’s also worth remembering that Obama would have been defeated anyway if Justice Antonin Scalia had lived to vote against the reform, assuming the eight other justices split 4-4. And that would’ve been worse for the Democratic Party, because it almost certainly would have resulted in an opinion blocking such unilateral executive action in the future. Now, if Hillary Clinton is elected president, the issue can be revisited without a binding judicial precedent to preclude her from doing something similar.
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The New Yorker
The Unintended Consequences of the Stanford Rape-Case Recall
An op-ed by Jeannie Suk...We are now seeing a very public judicial-recall movement in response to a sexual-assault case in California. More than a million people have signed petitions demanding the removal of Aaron Persky, the California state judge who sentenced Brock Turner, a Stanford swimmer convicted of three felony sexual-assault counts, to six months in jail, three years of probation, and lifetime registration on the sex-offender list. ...The strong public reaction and organizing after the Stanford case has expanded public engagement with the largely campus-based efforts to change how sexual assault is treated in our society. It also reflects a tension between the crime of sexual assault and the generally progressive social-justice movements criticizing harsh criminal penalties.
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The Boston Globe
Get foreign political money out of US elections
An op-ed by Laurence Tribe and Scott Greytak. The Federal Election Commission, the federal agency charged with overseeing US elections and yet paralyzed by partisanship, will host a first-of-its-kind public forum Thursday on the threat posed by foreign-influenced corporations that spend on American elections. The meeting comes less than one month after the kingdom of Saudi Arabia announced it would make a $3.5 billion investment in Uber, the US-based ride-hailing service and ubiquitous election spender. Now, as the specter of foreign influence comes to haunt even our local elections, the government entity with the most to do — at a time when its power is declining — has put the issue squarely before the public-policymaking consciousness.
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Harvard Gazette
Limitations on the undocumented
A deadlocked Supreme Court dealt a major blow to President Obama’s executive actions to grant relief from deportation to nearly 5 million undocumented immigrants living in the United States. The 4-4 tie in U.S. v. Texas, a challenge by that state and 25 others against Obama’s executive actions, leaves in place an injunction by a lower court that blocked the government from implementing two programs that would protect both children and their parents from deportation. “I’m disappointed,” said Deborah Anker, clinical professor of law and director of the Harvard Immigration and Refugee Clinical Program at Harvard Law School. “What this means is that it puts hundreds of thousands of people at risk of deportation, including parents of U.S. citizens or legal residents.”...Phil Torrey, lecturer on law with the Harvard Immigration and Refugee Clinical Program and the supervising attorney for the Harvard Immigration Project, hopes the ruling will help galvanize the movement for immigration reform. “Hopefully it will continue to energize the movement to push for comprehensive reform, especially with elections coming forward,” he said.
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Bloomberg
Affirmative Action Is Here to Stay
An op-ed by Noah Feldman. In a major victory for affirmative action on Thursday, the Supreme Court has upheld the use of race by the University of Texas as part of its admissions policy aimed at educational diversity. The relatively compact decision by Justice Anthony Kennedy makes no mention of the eventual disappearance of affirmative action, as Justice Sandra Day O’Connor did in 2003, the last time the court issued an important decision on the topic. So long as universities carefully articulate why they must consider race to achieve a diverse student body, it would seem that affirmative action in higher education is here to stay. And Kennedy’s opinion will now replace O’Connor’s as the go-to precedent on the subject.
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Harvard Magazine
Harvard’s Stake in the Fisher v. Texas Affirmative Action Case
Relieving fears at Harvard and elsewhere that it might strike down the use of race in admissions, the U.S. Supreme Court today upheld the University of Texas (UT) at Austin’s affirmative action program in the case Fisher v. University of Texas at Austin...Paul professor of constitutional law Tomiko Brown-Nagin called the decision “a stunning win for the University and a reversal of fortune for affirmative action’s detractors.” Laurence Tribe, Loeb University Professor and professor of constitutional law, commented that, "Today’s decision in Fisher v. Texas means that race-conscious affirmative action programs in higher education will be upheld as long as they follow the Court's guidelines for avoiding crude racial quotas and for fine-tuning those programs over time on the basis of intelligently articulated educational philosophies targeting the many dimensions of diversity, as Harvard’s programs of affirmative action have taken great care to do.
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Worcester Telegram
Who’s (left) to judge?
An op-ed by Tommy Tobin `16. "The judgment is affirmed by an equally divided Court." With this one line, the U.S. Supreme Court recently gave us a clarion call why the country needs to fill the vacancy caused by the passing of Supreme Court Justice Antonin Scalia...Harvard Law’s Crystal S. Yang found that judicial vacancies affect the administration of our criminal justice system. Her forthcoming article in the American Economic Journal: Economic Policy found that judicial vacancies induce prosecutors to exercise their discretion in deciding whether to prosecute a case after an arrest. Professor Yang found that prosecutors may be up to 17 percent less likely to move forward with a case during a vacancy rather than a full-member court. For those cases that are prosecuted, Dr. Yang found that defendants were significantly more likely to plead guilty and avoid a trial, possibly because of better deals offered in a period of overbooked judicial calendars, or a desire of defendants to speed up a process. Professor Yang’s study suggests that judicial vacancies do not simply affect judges, they can change the behavior and outcomes for other actors in our criminal justice system.
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Star Tribune
Appeals court upholds ruling blocking Minnesota clean energy law
A federal appeals court on Wednesday upheld a ruling that Minnesota’s 2007 clean energy law illegally regulates out-of-state utilities, the latest and perhaps final chapter in a five-year legal battle between the state and North Dakota. The appellate court decision is a win for the state of North Dakota and its utility and coal interests, which argue that the Minnesota law hampered their ability to sell electricity from coal-fired power plants and build new coal generators...Even more difficult would be an appeal directly to the U.S. Supreme Court. “It’s unlikely the Supreme Court takes this case,” said Ari Peskoe, an energy fellow at Harvard Law School’s Environmental Policy Initiative.
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The New York Times
Law Schools Are Going Online to Reach New Students
Law schools, in the face of marked declines in enrollment, revenue and jobs for graduates, are beginning to adopt innovative new ways of delivering legal education. Some law schools are moving away from relying solely on classic settings and instead are blending classroom learning with online instruction...To attract new and broader audiences, she advised law schools to categorize offerings by subject matter rather than by course or by degree program. One example is a copyright law course developed in conjunction with Harvard Law School. In addition to law students, roughly 500 other people have been attracted to the online course, which is offered in the spring semester and was developed by Harvard using existing technology. The course allows both categories of students to interact via weekly webcasts featuring guest speakers and an online discussion forum, according to Prof. William W. Fisher, known as Terry, who teaches the course, which is also licensed to 18 universities worldwide to generate revenue.
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MarketWatch
How to negotiate your first salary, according to a Harvard Law professor
It’s no secret that many of today’s young people could use a little more money in their pockets. Between student loan payments, sluggish wages and historically high rent costs, 20-somethings are often struggling to make ends meet. And yet, many don’t do the one thing in their control to change that...Often they’re just happy to land that first job and don’t want to rock the boat, says Robert Bordone, the director of the Negotiation and Mediation Clinic at Harvard Law School...Bordone and a team of his students are working with the White House to develop a suite of tools to help students, particularly those at community colleges, negotiate salaries at their first jobs...MarketWatch spoke with Bordone about how young people can make sure they get paid fairly, even when they think they don’t have a ton of leverage.
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WGBH
Is Beacon Hill On Track To Make Massachusetts Safe For Fornicating Communists?
If state Rep. Byron Rushing, a Democrat from Boston's South End, has his way, laws that criminalize adultery, vagrancy, fornication, sodomy, blasphemy, Communism, and more will soon be repealed...Getting rid of the outdated laws is low on the list of priorities currently being juggled by the Legislature, Harvard Law School professor Laurence Tribe told WGBH News. "The danger that such laws will be pulled out of the drawer and enforced against unwitting members of disadvantaged groups is often overlooked," Tribe said. "The effort to clean up and update outmoded and partly or wholly unconstitutional laws as Byron Rushing is doing remains an important one, not least because the presence of dead wood in our lawbooks contributes to a corrosive cynicism and a scofflaw attitude," Tribe said.
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WBUR
What SCOTUS Ruling On Affirmative Action Means For Case Against Harvard’s Admissions Policies
Many Massachusetts colleges and universities are pleased by Thursday's U.S. Supreme Court ruling upholding the use of race as a factor in college admissions. But that doesn't mean that the legal fight about race conscious admissions decisions is over. Perhaps the Massachusetts school most closely watching this case was Harvard University. It's facing a separate lawsuit alleging that its admissions policies discriminate against Asian Americans. Some say Thursday's high court ruling is going to affect that suit. "I can hear the death knell of that lawsuit," said Harvard law professor Laurence Tribe. Tribe, who is advising the school on that suit, says the Supreme Court ruling bolsters Harvard's argument that race is one of several factors that schools should consider in admissions decisions.
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The Harvard Crimson
In Landmark Ruling, Supreme Court Backs Race-Conscious Admissions
In a landmark victory for Harvard and affirmative action supporters across the nation, the Supreme Court rejected a challenge to race-conscious admissions policies in a 4-3 vote...Thursday’s ruling is a “decisive victory” for Harvard, Law professor Laurence H. Tribe ’62 said, adding that the decision is “favorable to what Harvard has tried to do over the years to overcome racial stereotypes.”“Our affirmative action program and others like it will of course continue to be the targets of litigation, some of it well intended, but those creating and administering such programs will now be able to point to what amounts to a clear blueprint for their design and defense,” Tribe wrote in an email.
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WBUR
Legal Analyst Nancy Gertner On Utah V. Streiff
If a police officer stops you, asks for an ID and runs a routine check, he might find an outstanding "small traffic warrant." You could be arrested and charged with a serious crime based on that warrant, not for any traffic violation, but for drugs found during a search...Guest: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst.
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