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News@Law, 07/25/2016

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

The New York Times
Justices Show How Disclosing Revisions Offers (Confers?) Benefits
Supreme Court opinions are not set in stone. Justices keep editing them after they are issued, correcting factual errors and even misstatements of law. For decades, those changes were made largely out of sight. But in October, on the first day of the term, the court announced that it would start disclosing after-the-fact changes to its decisions...A couple of years ago, Richard J. Lazarus, a law professor at Harvard, revealed that the court had routinely been revising its decisions, altering them without public notice weeks, months and sometimes years after they were first issued. Professor Lazarus urged the justices to disclose the changes. “The court can both make mistakes and admit mistakes without placing its institutional integrity at risk,” he wrote in The Harvard Law Review. To its credit, the court — never one for rapid change — listened.
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The Baltimore Sun
Harvard law professor: criticism of Mosby over Gray trials is ‘wholly unfounded’
An op-ed by Ronald Sullivan. Baltimore City State's Attorney Marilyn Mosby is the subject of intense yet wholly unfounded criticism for her office's decision to prosecute six police officers for the death of Freddie Gray. Significantly, a George Washington University law professor, John Banzhaf, has gone so far as to file an ethics complaint against Ms. Mosby. These critiques of Ms. Mosby bespeak a troubling double standard. It appears that some would rather treat police officers with a special legal status, while treating average citizens with the rules reflected in our Constitution. Significantly, enshrined on the main portico of the Supreme Court building is the phrase "equal justice under law." It is a symbolic representation of a core constitutional principle that no person is above the law. Ms. Mosby has exercised her prosecutorial discretion equally with respect to all citizens. Yet many condemn her nonetheless.
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Project Syndicate
Could Hensarling’s Dodd-Frank “Off-Ramp” Work?
An op-ed by Mark Roe. Jeb Hensarling, the Republican chair of the Financial Services Committee in the US House of Representatives, delivered a wide-ranging speech last month at the Economic Club of New York, proposing to overhaul US financial regulation. Hensarling blamed regulators and excused Wall Street for the financial crisis; condemned government-funded bank bailouts; characterized the 2010 Dodd-Frank financial-reform legislation as a power grab; and called for increased congressional oversight of the Federal Reserve. Most of Hensarling’s proposals – even backed, as they now are, by a partisan-sounding document from the House Banking committee and a favorable Wall Street Journal review – are political nonstarters...They have already been sharply criticized by Democrats as being too risky and pro-bank – which they largely are. That said, one of Hensarling’s ideas is well worth exploring: an “off-ramp,” as he put it, from Dodd-Frank regulation for banks that willingly increase their available capital.
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Reuters
Hershey Trust reaches in-principle reform agreement
The board of the charitable trust that controls Hershey Co said on Friday it had reached an in-principle agreement with the Pennsylvania Attorney General's office that would avoid a legal row in exchange for reforms in how it is run. The settlement could provide stability to the trust following months of infighting and confrontation with the attorney general's office. It could also offer the clarity needed for Mondelez International Inc to make a new approach to acquire Hershey...In 2002, the trust cited the need for diversification as a reason of putting Hershey up for sale. Hershey then attracted a $12.5 billion offer by chewing gum maker Wm. Wrigley Jr. Co. However, the deal was abandoned after Pennsylvania's Attorney General successfully petitioned a court to block the offer amid opposition from the local community. "This portfolio that is meant to rescue needy children is being exposed to needless risk that could be diversified away without compromising expected return." said Robert Sitkoff, a Harvard Law School professor specializing in wills, trusts, estates, and fiduciary administration.
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Bloomberg
Appeals to Fear Don’t Work in Presidential Elections. Usually.
An op-ed by Cass Sunstein. Donald Trump last night offered a funhouse mirror version of one of the greatest speeches in American history: Franklin Delano Roosevelt’s first inaugural address, in 1933. In the midst of a genuine crisis, the Great Depression, FDR began by emphasizing his “firm belief that the only thing we have to fear is fear itself -- nameless, unreasoning, unjustified terror.” Trump sought to foster exactly that. For Trump, “America is a more dangerous environment for everyone than frankly I have ever seen and anybody in this room has ever watched or seen." Quietly and wryly, Roosevelt observed, “We are stricken by no plague of locusts.” He added: “Compared with the perils which our forefathers conquered because they believed and were not afraid, we have still much to be thankful for.”
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PRI
Does human specimen research always need consent?
Should scientists be allowed to study your biological specimens — such as blood, urine or tissue samples — if you haven’t expressly given them permission?...“What's being proposed to be changed now is saying, ‘It doesn't matter if those specimens have been de-identified. We're still going to require researchers to get your consent before using them,’” says Holly Fernandez Lynch, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School...“The good ... in proposing this rule change is people don't know how their specimens are being used and if we fail to tell them, we're going to lose trust in the research enterprise,” Lynch says. “We really ought to be telling people what we're doing with their specimen — so that's sort of the justification that's been put forth.”
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The Boston Globe
Supreme Court’s corruption decision could affect Mass. cases
A Supreme Court ruling that has made it more difficult to prosecute public officials for corruption could affect a wide range of cases in Massachusetts, including the ongoing investigation into state senator Brian A. Joyce, the indictment of Boston City Hall officials, and the convictions of state probation department officials...“One takeaway from the McDonnell decision is the notion it’s OK to advocate on behalf of constituents,” said Nancy Gertner, a retired federal judge and Harvard Law School professor. “The question is what is legitimate constituent advocacy and what is not.”
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Associated Press
Airbnb sues hometown San Francisco over rental regulation
San Francisco wants people who rent out their homes through Airbnb and other online platforms to follow some rules, and it wants the platforms to advertise only those rule-abiding listings — or face steep fines...In its federal lawsuit filed in June, Airbnb states San Francisco’s ordinance violates a federal law that has long shielded websites such as Facebook and YouTube from responsibility for information posted by users. In this case, it’s the legality of vacation listings...“This is going to be the first of many kinds of legal battles around the platform economy. I’m sure that other companies are going to mount similar kinds of defenses when they’re in regulatory crosshairs,” said Vivek Krishnamurthy, assistant director of the Cyberlaw Clinic at Harvard Law School’s Berkman Klein Center for Internet & Society. “At some point,” he said, “governments are going to have to be able to regulate these things.”
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The Washington Post
Government gets tough on student loan servicers, but will it be effective?
The Obama administration is taking a hard line on the contractors it uses to collect federal student loan payments, threatening to withhold compensation or new business if companies fail to adhere to new standards for servicing over a trillion dollars in student debt....“It’s a promising first step, but there is still a lot of work to do,” said Deanne Loonin, an attorney on the Project on Predatory Student Lending at the Legal Services Center of Harvard Law School. “These policy directives still have to be incorporated into the servicing contracts. Also, so far, there is no clear way for borrowers to enforce these rights. We cannot rely only on the Department of Education to oversee the contracts and ensure that borrowers are protected. There must be rigorous public and private enforcement.”
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Cape Cod Times
Sea lion act at Barnstable County Fair faces opposition
A traveling sea lion exhibit currently featured at the Barnstable County Fair was cited in May by the U.S. Department of Agriculture for violating the federal Animal Welfare Act, raising concerns among animal welfare advocates and scholars who are calling for fair organizers to stop the show..But a vast majority of citations don't result in enforcement, said Delcianna Winders, an Academic Fellow of Animal Law & Policy Program at Harvard Law School who studies USDA enforcement of the Animal Welfare Act. A December 2014 audit of the USDA by the Office of Inspector General found that penalties issued in 2012 were reduced by 86 percent from the law's maximum penalty even though the cases resulted in death and other egregious violations, according to the report. For every $10,000 penalty, violators pay about $1,400 dollars in fines, Winders said. “This is a longstanding issue that the Office of Inspector General has raised multiple times in the past. Unfortunately, even since this most recent audit, my analysis has shown that penalties continue to be steeply discounted,” Winders said. “The problem is aggravated by the fact that the agency insists on keeping the penalty worksheets secret.”
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The Boston Globe
Apparent gap stymies prosecution of doctors in sex cases
It violates medical ethics, but is it clearly against the law for a doctor to touch a patient sexually under the guise that it’s critical to her care? In some states it is illegal, but not in Massachusetts, according to the Middlesex district attorney’s office. This gap in state law is the reason the office recently decided not to prosecute Dr. Roger Ian Hardy, the popular fertility specialist accused of molesting patients, according to a lawyer for one of his alleged victims...Jeannie Suk Gersen, a Harvard Law School professor, questioned why prosecutors did not charge Hardy with indecent assault and battery, since the patient did not give explicit consent for Hardy to touch her clitoris.
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Bloomberg
The Republican Convention, Translated for Liberals
An op-ed by Cass Sunstein. Many Democrats do not merely disagree with the Republican Party platform and with the speakers at this week’s convention. They may even struggle to understand what they are reading and hearing. That’s a problem for Republican politicians, who hope to connect with Democratic voters, but even more for Democrats, who hope to keep the presidency and to capture the Senate. The reason is that Republicans are appealing to deep and honorable strands in American political culture, which Democrats ignore at their peril.
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Bloomberg
Immigration Case Deserves Another Day in the Supreme Court
An op-ed by Noah Feldman. The Obama administration has asked the Supreme Court to wait until it has nine justices and rehear U.S. v. Texas, the case in which a 4-4 court affirmed a lower court’s decision to block the president’s executive action on immigration. The effort is unlikely to succeed, because the court’s rules require a majority to grant rehearing, and right now the court doesn’t have one. But in a more logical world, the court would agree now to reconsider this extremely important case, which would grant temporary legal status to some 4 million people who entered the U.S. illegally, when it is at full strength. That it probably won’t shows just how dysfunctional an eight-justice court really is.
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Bloomberg
Turkey’s Judicial Purge Threatens the Rule of Law
An op-ed by Noah Feldman. In the wake of the coup attempt, Turkish president Recep Tayyip Erdogan can hardly be blamed for purging the military. But firing 2,745 judges without any investigation or demonstrated connection to the coup is another matter. The action threatens the rule of law in Turkey going forward. And the way it was done signals some of the methods Erdogan can be expected to use in the weeks and months ahead.
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Business Insider
A Harvard law professor reveals what ‘Star Wars’ teaches us about Donald Trump (video)
Harvard law professor and author Cass R. Sunstein took a break from his typically complex, footnote-filled texts to write a book analyzing one of the biggest pop culture phenomena of all time: "Star Wars." In "The World According to Star Wars", Sunstein breaks down the origins of the "Star Wars" mythology, the reasons it became (and is still) so successful and also finds myriad parallels between the events chronicled in the science fiction saga and those happening in today's geopolitical landscape. We asked Sunstein if he sees any parallels between "Star Wars" and the rise of presumptive Republican nominee Donald Trump.
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