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News@Law, 08/08/2016

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
Criminal Defendants Sometimes ‘Left Behind’ at Supreme Court, Study Shows
The quality of advocacy at the Supreme Court these days is quite high. “We have an extraordinary group of lawyers who appear very regularly before us,” Justice Elena Kagan said in 2014 at a Justice Department event. But there was, she said, one exception. “Case in and case out,” she said, “the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.” That impression, widely shared by people who frequently attend Supreme Court arguments, has now been confirmed by a comprehensive look at a decade of data. “Criminal defendants are almost never represented by expert counsel in arguments before the Supreme Court,” Andrew Manuel Crespo, a law professor at Harvard, wrote in the new study, which was published in The Minnesota Law Review. In the 10 years ending in June 2015, he found, as many as two-thirds of the arguments on behalf of criminal defendants were presented by lawyers making their first Supreme Court appearances.
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The New Yorker
College Students Go to Court Over Sexual Assault
An op-ed by Jeannie Suk Gersen....As the first rounds of students have been disciplined for sexual misconduct under the new procedures, scores of them have gone to court to protest their schools’ decisions. The suits, against schools such as Yale, Cornell, and the University of California, San Diego, have alleged that, under intense pressure to be tough on sexual assault, the schools violated basic fairness to accused students. Most remarkably, many of the suits have claimed that the new procedures, which were developed to protect the Title IX rights of sexual-assault victims, in practice violate the Title IX rights of the accused...But, last week, a unanimous Second Circuit appeals panel reversed that decision and held that the accused student could go forward with his claim that the university subjected him to sex discrimination in violation of Title IX. The case will go back to the lower court for trial proceedings, unless Columbia settles with the student, who is seeking damages and wants his disciplinary record scrubbed. Across the country, state and federal courts have recently decided for other accused students who claimed that their schools’ procedures were unfair.
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Backchannel
The Limits of Net Neutrality
An op-ed by Susan Crawford. Last year, the European Parliament adopted a regulation aimed at protecting open Internet access. That seemed like good news, almost as uplifting as the recent D.C. Circuit decision that seemed to guarantee open access here in the states. Both actions seem to protect the consumer-friendly principle of net neutrality from its self-interested foes. But neither are enough in themselves.
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ABA Journal
Implicit bias is a challenge even for judges
Judges are tasked with being the most impartial members of the legal profession. On Friday afternoon, more than 50 of them discussed how this isn’t so easy to do—and perhaps even impossible when it comes to implicit bias. But working to overcome biases we don’t recognize is a job that is as necessary as it is worth doing...And the implicit-association test for measuring such bias shows, after being taken by thousands of individuals, that 80 percent of white test-takers and 40 percent of blacks tested show a pro-white bias, said panelist Johanna Wald, director of strategic planning for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. The test is easy to take and surprisingly accurate. The key is that these typically are unconscious biases. Wald asked the judges and lawyers to keep three things in mind: Bias is a natural human tendency and useful because we need shortcuts in dealing with so much in life; unconscious biases often are in conflict with our egalitarian values; and yet they predict and determine our actions and decisions more than our explicit values. There isn’t so much a need for more research in the area, Wald said, but a need to identify which research is important in the application of justice and what to do about it. “Unless and until we start to get a handle on that and figure out what to do about that … the outcomes are going to be just as harmful as if they were explicit biases,” she said.
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The Financial Times
Out-of-court bond exchanges face challenges on TIA grounds
Perversely enough, corporate bankruptcy is not cheap. Protracted fights between duelling bondholders, banks, trade creditors and the companies involved often maximise value only for lawyers. So, to avoid costly and inefficient Chapter 11 brawls, troubled businesses have been increasingly choosing to restructure their balance sheets through out-of-court bond exchanges. Now, though, even these bond exchanges may be threatened by an esoteric court battle over a Depression-era law. According to the US Trust Indenture Act of 1939, which governs the terms of bonds, the right of bondholders to receive principal and interest cannot be altered without their unanimous consent...Harvard Law School bankruptcy expert Mark Roe recently wrote that TIA decisions of late have correctly solved the problem of bondholder coercion. Ultimately, however, he believes Congress or the Securities & Exchange Commission should relax the requirement for unanimity to allow changes to bond terms. Otherwise, we can expect the lawyers — in Chapter 11 bankruptcy cases, or in ordinary court cases figuring out what counts as payment impairment — to become much busier.
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The Atlantic
What the DNC Hack Could Mean for Democracy
Analysts largely agree that the hacking of various arms of the Democratic Party, and the release of hacked emails that deepened divisions within the party just ahead of its presidential convention, is a big deal. But there’s less agreement about whether what we’re witnessing is fundamentally old or new. The answer to that question could shape not just the Obama administration’s response to the hack, but international norms on the limits to foreign influence in democratic elections...As U.S. authorities investigate who was behind the hack, legal scholars and cybersecurity experts have been scrambling to sort the old from the new. Jack Goldsmith, a Harvard Law professor and former George W. Bush administration official, says there’s something novel about the mechanisms and scale of the intervention, in that it seems to have involved not just cyber operations, but also partnering with a third-party organization to publish a massive amount of data. That last step is what made ordinary espionage extraordinary—and what potentially invites more ambitious interventions in American democracy in the future. The U.S. government, he fears, may be unprepared for the onslaught.
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Bloomberg
Lawyers Can Be Zealous Without Being Nasty
An op-ed by Noah Feldman. The American Bar Association is considering adding a rule to its canon of ethics that would prohibit lawyers from discriminating in the course of their jobs. The proposal seems innocuous and probably overdue -- but it has encountered a surprising degree of opposition. So it seems reasonable to ask: Why is this even a thing? How can anyone in good conscience think that barring discrimination by lawyers is a bad idea? The answer is that the legal profession is the last bastion of unfettered, unapologetic nastiness, proudly flying the flag of zealous client representation. In some ways, that’s good. The adversarial system calls for a degree of confrontation and aggression that would be inappropriate in almost any other professional context. Yet it should be possible to craft rules to carve out certain kinds of nastiness -- including discrimination on the basis of race, sex, sexual orientation, or other invidious motives.
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The Bend Bulletin
A cure for hepatitis C, if not for the cost
...Within the past three years, new drugs with cure rates surpassing 90 percent have come on the market that have dramatically changed the conversation for hepatitis C patients like Cox. The results are like nothing doctors had seen before: patients’ bodies being effectively rid of the virus within just a few months, rather than living with it for decades. But the drugs’ exorbitant prices keep them out of reach for lots of people...“I don’t want to impute bad motives on the part of insurers,” said Robert Greenwald, a clinical law professor at Harvard Law School and faculty director of its Center for Health Law and Policy Innovation, “but I do think they feel more comfortable than they should about basically condemning a population and many people within that population to sickness, ill health and ultimately, for some, death, for having these kinds of restrictions.”
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Utility Dive
With Clean Energy Standard, New York looks to save nukes, skirt legal challenges
New York regulators approved an aggressive Clean Energy Standard this week that calls for 50% renewable energy and includes income supports to keep three upstate nuclear plants online. A close reading of the Public Service Commission’s order reveals the state believes it has no choice but to support the plants, or risk falling short on emissions goals. At the same time, the order has been carefully crafted to pass federal or legal scrutiny, though a challenge is all but inevitable...Ari Peskoe, senior fellow in electricity law at Harvard Law School, said he concluded the New York order would not be preempted — at least, not based on the Hughes argument. “The distinction, and the PSC was very deliberate — the commission is not adjusting a wholesale rate. What they’re doing is valuing the carbon-free attribute," Peskoe said. "They’ve been smart about how they’re going about it." That's not to say some party won't make that argument. But “Hughes is a really narrow decision," Peskoe said.
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Bloomberg
Pocket Constitution Packs a Few Surprises
An op-ed by Cass Sunstein. Improbably, the U.S. Constitution has become a runaway bestseller. The reason, of course, is Khizr Khan’s speech at the Democratic convention, and in particular these words posed to the Republican presidential nominee: “Let me ask you: Have you even read the United States constitution? I will gladly lend you my copy.” Pointedly, Khan added, “In this document, look for the words 'liberty' and 'equal protection of law.'” Khan’s words have pointed the Constitution's thousands of fresh readers toward a text that might well surprise them. Still, James Madison, father of the founding document, would be pleased.
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Bennington Banner
Green Mountains racial history isn’t black and white
...Following Whitfield, fellow scholar Kenneth Mack brought the past into the present. Mack, a Harvard Law School classmate of President Barack Obama, now teaches at his alma mater. But racial challenges persist: Last fall, someone defaced portraits of Mack and other black professors with electrical tape. "There's a lot of work to be done," the educator said. That's one reason Mack has written "Representing the Race: The Creation of the Civil Rights Lawyer," a history of the pioneering African-Americans who first fought for equality. "It is about a group of men and women who changed America," he told a Woodstock audience. "The past is more complicated than we think it is, and it helps us understand the present is more complicated than we think it is. To see what I'm getting at, you've got to hear the stories."
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Time
The Real Reason You Can’t Vote for an Independent Candidate
An op-ed by Randy Barnett and Lawrence Lessig. Hillary Clinton and Donald Trump are disliked by more voters than any major-party nominees in at least three decades. Independents easily outnumber either Democrats or Republicans. And polls show voters overwhelmingly want another choice. There is no shortage of great leaders in the United States with integrity, strength and vision, but there is something standing in their way: A morass of state laws meant to keep particular Americans from threatening the two existing major parties. Fundamentally, these laws prevent rivals from emerging that might replace the existing non-responsive parties—the way the Republicans emerged to replace the Whigs over the issue of slavery. And like poll taxes and literacy tests, they unjustifiably block ballot access.
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The Boston Globe
Wider access to hepatitis C drugs is humane and pragmatic
The long-term health prospects for thousands of Massachusetts residents are about to improve. As of Monday, MassHealth will require private insurers that manage coverage for two-thirds of the state Medicaid plan’s members to loosen rules that cruelly prevent people infected with hepatitis C from receiving drugs that cure the disease...Massachusetts’ limits on hepatitis C medicines have been at odds with US Centers for Medicare and Medicaid Services’ policy, which mandates that Medicaid insurance plans cover the new drugs. MassHealth also has faced scrutiny from health care advocates, who note that the disease is especially prevalent among lower-income residents who don’t have other treatment options, or who are reluctant to seek preventive medical care. “We’re dealing with a population that has a history of exclusion and distrust of the health care system,” says Robert Greenwald, director of Harvard Law School’s Center for Health Law and Policy Innovation, and a prominent critic of limits on hepatitis C coverage.
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