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News@Law, 07/11/2016

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

Bloomberg
An Attack on Citizens United, Through the Back Door
An op-ed by Noah Feldman. A group of high-profile legal minds wants the Supreme Court to eliminate super-PACs, the advocacy groups that can raise and spend unlimited amounts of cash to praise and attack political candidates. But instead of asking the court to overturn the 2010 Supreme Court case that lifted many restraints on political spending, Citizens United v. Federal Elections Commission, they plan to ask the justices to overturn a lower court decision that interpreted Citizens United to open the door to the super-PACs. The strategy is worth pursuing...Why attack SpeechNow instead of challenging Citizens United directly? The answer is subtle, and it reflects the legal expertise of the group, which includes my senior Harvard Law School colleague Laurence Tribe, the unquestioned master of the dark arts of shaping doctrine through litigation.
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Politico
The most important free trade agreement you’ve never heard of
Nearly two dozen countries have spent the last three years wrangling over a trade deal that will set the rules governing trade in services for much of the world for decades to come. Yet you’ve likely never heard of it. Other mammoth trade deals have triggered demonstrations across the EU and the U.S. while the so-called Trade in Services Agreement’s technicalities are being worked out largely without political pushback. In fact, it seems to have made it to the homestretch...“It has been more than 20 years since the conclusion of a major trade agreement on services has been made,” said Mark Wu, an assistant professor at Harvard Law School who specializes in international trade law.
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The Huffington Post
‘Someone Else Was Killed By The Police On My Timeline. What Can I Do?’
An op-ed by Derecka Purnell `17. Today, social media introduced me to Alton Sterling during his brutal, involuntary final moments with Baton Rouge police officers. More times than I can count since Trayvon Martin’s murder, friends, family, and colleagues have reached out to me through a helpless, angry, inspirational, curious, loving, or hopeless “what can I do?” message or phone call. Hours after watching Sterling’s death, I read a law school friend’s post on how we can process police and vigilante killings that are widely publicized. He inspired me to pull this list together. This list is in no way comprehensive or exhaustive, but rather entry steps to further connect people to each other in tangible ways.
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The Huffington Post
How The War On Child Porn Is Helping Us Fight ISIS Propaganda
How can the U.S. fight the spread of Islamic State propaganda? The militant group’s infamous videos of beheadings, violence and torture have a dangerous allure for would-be radicals, and they proliferate over social media in a way that can make containment seem hopeless. But fighting extremist content online need not be very complicated, according to Dr. Hany Farid, a computer scientist at Dartmouth College...Farid is referring to a technique called “hashing,” which he pioneered nearly a decade ago while battling a different but equally vile online scourge: child pornography. Hashing involves scanning the unique digital fingerprint, or “hash,” of a video or photo, making it easy to find instances of that content and remove it...“There’s a valid concern about overreach,” Vivek Krishnamurthy, assistant director of Harvard Law School’s Cyberlaw Clinic, told HuffPost. “Just because a video is flagged, it doesn’t mean there are no conditions under which it should circulate, like as part of a news report, or a parody.” “Plus, as with other algorithms, the question is, is the tech working correctly?” he went on. “We don’t know enough about how these technologies [like hashing] really work.” Still, Krishnamurthy acknowledged that the government is in a tough position. Militant propaganda is a genuine national security concern, and it can’t be ignored.
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Time
Comey’s Announcement Signals Max FBI Independence
An op-ed by Jack Goldsmith. On Tuesday FBI Director Jim Comey stated that Hillary Clinton and her State Department colleagues were “extremely careless in their handling of very sensitive, highly classified information,” but concluded that “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” It is highly unusual for the FBI Director to publicly summarize the nature and conclusions of a major investigation, and then announce the FBI’s recommendation to the Justice Department that the focus of the investigation should not be prosecuted. So why did Comey do it?
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Slate
Ronald Reagan’s Solicitor General Has Had Enough of Trump
The man who represented the Reagan administration 25 times at the Supreme Court has issued a stinging rebuke of Donald Trump in an exclusive to Slate. Charles Fried, who served as solicitor general from 1985-1989 and now teaches constitutional law at Harvard Law School, tells Slate that Trump is the most risky in a string of recent GOP candidates that have forced a choice between party and country. Here is the full comment: "Though long a registered Republican, this will be the third consecutive presidential election in which my party forces the choice between party and, in John McCain’s words, putting America first. Sarah Palin, McCain¹s erratic and surely regretted choice as running mate, in her voluble and opinionated ignorance was an early precursor of Donald Trump. It was the spirit of Sarah Palin and those who cheered her on that animated the subsequent defeat of such traditional Republicans as Bob Bennett in Utah, Dick Lugar in Indiana, and Eric Cantor in Virginia. Many who survived only did so by pretending to positions they did not hold. There was no more transparent pretender than Mitt Romney in 2012. Now those same forces have given us Donald Trump, whose presumptive presence at the head of the Republican ticket disgraces not only the party but the nation. You sow the wind and reap the whirlwind. It is to Romney's credit that this year, like John Paulson and George Will, he is standing up against the brutal, substantively incoherent, and authoritarian tendencies of Donald Trump."
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The Washington Post
Can super PACs be put back in the box?
A powerhouse legal team representing a bipartisan group of congressional members and candidates is unleashing a new effort to overturn the case that birthed super PACs, part of a novel strategy to rein in the big money that has poured into campaigns since 2010. Their immediate target is not Citizens United v. Federal Election Commission, the polarizing decision handed down by the Supreme Court that year. Instead, they are going after a lesser-known case decided by U.S. Court of Appeals for the D.C. Circuit just two months later: SpeechNow.org v. FEC ...A team of attorneys including Laurence Tribe, a professor of constitutional law at Harvard University, and Richard Painter, who was the chief ethics lawyer for former president George W. Bush, are taking aim at SpeechNow.org with a new complaint they hope will reach the Supreme Court before the 2020 elections. The thrust of their argument: The lower court erred in its interpretation of a line in the Citizens United decision, a mistake that unleashed a flood of money into elections that the Supreme Court never intended. “The situation left in place by SpeechNow.org is one that Congress never enacted and people would never support,” Tribe said. “The law permits a very severe limit on the amount an individual can give to someone’s campaign, but at the same time that could be evaded by giving millions to super PACs. . . . The Supreme Court never approved anything like that.”
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Bloomberg
Fighting Rape, Germany Endangers Free Assembly
An op-ed by Noah Feldman. Germany changed several laws this week in direct reaction to the New Year’s Eve attacks in Cologne by a disorganized group of young Muslim men. One change, implementing “no means no” in German rape law, was long overdue. A second, taking criminal history into account in immigration decisions, was probably inevitable and isn’t out of step with other countries. But a third, which creates criminal liability for being part of an amorphous group and tacitly allowing an assault perpetrated by someone else, is more worrisome. It smacks of collective punishment, deviates from European criminal law norms, and threatens the right of assembly.
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The Boston Globe
Wrong? Maybe. Criminal? Maybe not.
An op-ed by Nancy Gertner. The Supreme Court’s decision in the corruption case against former Virginia governor Robert McDonnell will complicate the already complex investigation of union influence in the Walsh administration. The court found that it was not a crime to receive money from a constituent in exchange for introducing him to officials who might be interested in his business and even hosting him at the governor’s mansion. What was illegal was taking money in exchange for a decision on a pending matter, like the award of a specific government contract or a vote for bill. The decision was unanimous and followed other Supreme Court decisions rejecting the government’s novel interpretation of federal criminal statutes.
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PBS Newshour
Small towns join forces to bridge the digital divide
America still lags behind other developed countries in internet service and availability. As of this year, according to the Federal Communications Commission, roughly 34 million Americans lack access to high speed internet, which the agency describes as having download speeds of at least 25 Mbps and upload speeds of at least 3 Mbps. But that number only tells part of the story. The vast number of those Americans lacking access live in small towns or rural communities, about 23 million people. That’s 39 percent of all rural residents in the country...Susan Crawford of the Berkman Center for Internet & Society says that large corporations don’t see it in their financial interests to connect smaller areas. “They are responding rationally to Wall Street, and Wall Street wants them to keep their profits up very high,” she said. “And for them, it’s not as profitable to run a wire to a remote, isolated area with a few houses in it.”
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Face the Nation
What would past presidents say about 2016 White House race?
This 4th of July weekend, "Face the Nation" delves into the minds of past presidents and a great military leader. Authors Annette Gordon Reed, Onuf, Jean Edward Smith, and Doug Brinkley share their insights on presidential politics, past and present.
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The Week with George Stephanolpoulos
What Are Obama’s Post-Presidency Plans?
Harvard Law Professor Kenneth Mack on President Obama's post presidency plans.
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The Huffington Post
Declare Independence From Food Waste
An op-ed by Emily Broad Leib, Sally Greenberg, and Roni Neff. The July 4 weekend marks our nation’s birthday and the time when Americans celebrate — not only with fireworks, but with picnics, backyard BBQs, pool parties. Sadly, one byproduct of these celebrations are the many tons of food that we will inevitably waste after these family gatherings. Today, 40 percent of food produced in the United States is thrown away each year (over two-thirds of that by consumers). Ketchup with a date label that says it has expired.” Salad dressings that are past their “use by” dates, chips and cheese with passed expiration dates. As a result of confusing date labeling policies, consumers regularly toss out foods that are perfectly safe, wholesome, and still taste good.
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ABA Journal
Harvard Law School’s Berkman Center gets new name after $15 million donation
The Berkman Center for Internet & Society at Harvard Law School is getting a $15 million donation from Michael R. Klein, who received an LLM from the school. It has been renamed the Berkman Klein Center for Internet & Society, according to a Harvard Law press release, and the donation will help build new, better interfaces between computer science, engineering, law, governance and policy. Klein is a co-owner of ASTAR AirCargo, formerly known as DHL Airways, and a former partner at Wilmer Cutler Pickering Hale and Dorr. He also serves as chairman of the Sunlight Foundation, a nonprofit group focused on government transparency, using open data and reporting.
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Bloomberg
A Case of Bad Eggs Could Land You in Prison
An op-ed by Noah Feldman. The legal troubles of the father and son executives of an Iowan egg farm could have repercussions for businesses everywhere: In a case involving a 2010 salmonella outbreak, an appeals court has decided that you can get prison time for violating federal regulations, even if you didn’t know you were breaking the rules. It's a unique decision, and one that the Supreme Court should examine.
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