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News@Law, 08/15/2016

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

The Boston Globe
The Clinton imperative
An op-ed by Charles Fried. Increasing numbers of registered Republicans, and former and present Republican officials like myself, will not support Donald Trump for president. That’s the easy part. He has shown us that he is a mean and vindictive bully, striking out in the crudest ways (e.g., his sexist ripostes against Carly Fiorina and Megan Kelly) against anyone who attacks him, and then extending his vile remarks even to their relatives (Heidi and Rafael Cruz, Ghazala Khan). Indeed it is hard to think of any person in recent public life who has displayed a more repellent personality. Richard Nixon might come to mind, but that only because of what showed up in the secret recordings of what he thought were private conversations in the Oval Office. In public, Nixon had the self-control and self-awareness to keep his worst qualities reasonably well hidden. Rochefoucauld said that hypocrisy is the homage that vice pays to virtue, and in this respect at least, Trump is no hypocrite.
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The New York Times
Once Skeptical of Executive Power, Obama Has Come to Embrace It
In nearly eight years in office, President Obama has sought to reshape the nation with a sweeping assertion of executive authority and a canon of regulations that have inserted the United States government more deeply into American life. Once a presidential candidate with deep misgivings about executive power, Mr. Obama will leave the White House as one of the most prolific authors of major regulations in presidential history...The new president had a skeptical streak when it came to the value of regulation, influenced by his friend Cass R. Sunstein, a Harvard Law professor who had long argued that the government should more rigorously assess the benefits of new regulations. Mr. Obama liked that idea so much that he named Mr. Sunstein to lead the White House office that oversees rule-making.
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The New York Times
Think Tank Scholar or Corporate Consultant? It Depends on the Day
...An examination of 75 think tanks found an array of researchers who had simultaneously worked as registered lobbyists, members of corporate boards or outside consultants in litigation and regulatory disputes, with only intermittent disclosure of their dual roles. With their expertise and authority, think tank scholars offer themselves as independent arbiters, playing a vital role in Washington’s political economy. Their imprimatur helps shape government decisions that can be lucrative to corporations...“I think we have too much influence of funded research with clear interests at stake that is treated as though it is independent and academic research,” said Yochai Benkler, a professor at Harvard Law School and co-director of its Berkman Klein Center for Internet & Society. “There is no culture in the discipline to mark funded research clearly, or systematically treat it as less reliable.”
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Science
The FDA is prohibited from going germline
An article by I. Glenn Cohen and Eli Y. Adashi. A potentially renewable provision of the Consolidated Appropriation Act of 2016 forestalling the prospect of human germline modification was signed into law on 18 December 2015. The provision...stipulates that “none of the funds made available by this Act [to the FDA] may be used to review or approve an application for an exemption for investigational use of a drug or biological product… in which a human embryo is intentionally created or modified to include a heritable genetic modification”. Destined to expire at the conclusion of this fiscal year (30 September 2016), the rider has since been incorporated yet again into the House and Senate appropriation bills for the fiscal year ending 30 September 2017. Subject to ongoing annual renewal, this congressionally legislated ban undermines ongoing conversations on the possibility of human germline modification, its likely distant time horizon notwithstanding. Also affected are ongoing efforts of the FDA to review the prevention of mitochondrial DNA diseases through germline modification of human zygotes or oocytes at risk.
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Associated Press
Amateurs Analyze Trump’s Mind, but Should the Pros Do It?
Amateur psychoanalysts have put Donald Trump on the couch, calling him a sociopath, unhinged, a narcissist. Amid all this psych-talk, there is one group of people who aren't talking as much: the professionals. Or at least they're not supposed to. Professional ethics dictate that psychiatrists and psychologists avoid publicly analyzing or diagnosing someone they've never examined, but there is new and unusually vocal dissension against this long-held gag rule because of what some of them think they hear and see in Trump...In 1973, the psychiatry association adopted the Goldwater rule. Dr. Alan Stone, a professor of psychiatry and the law at Harvard, was the lone board member to vote against it. "I believe in free speech," Stone said. "If psychiatrists want to make fools of themselves, they have that right."
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Backchannel
The Next Generation of Wireless — “5G” — Is All Hype.
An op-ed by Susan Crawford. I remember a May 1989 outdoor wedding in Los Angeles during which the perspiring officiant held up a copy of Newsweek. “The Race for Fusion,” the cover read. “Why The Stakes are So High.” It was the height of the frenzy about nuclear reactions at room temperatures, and the media was obsessing about how this “cold fusion” might solve all our energy problems. The minister said something about the marriage being a similar kind of miracle, and the crowd chuckled. I think of that wedding every time I hear the two syllables written as “5G.” Because when it comes to hype, “5G” is this year’s “cold fusion.”
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Minnesota Public Radio
Aspen Ideas Festival: Lawrence Lessig on ‘Recovering a Sensible Democracy’ (audio)
A talk from the Aspen Ideas Festival about the state of America's democracy. Harvard Law professor Lawrence Lessig believes we've ended up with a democracy where there is unequal freedom to vote, unequal representation, and unequal status as citizens. The good news? He says it's completely fixable. Lawrence Lessig is professor of law at Harvard University. He spoke June 30, 2016 at the Aspen Ideas Festival in Colorado.
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Irish Examiner
The prosecutor and the Kenyan president
...In 2010, the International Criminal Court (ICC), the Hague-based tribunal created in 1998 to try the worst atrocities on earth — war crimes, crimes against humanity and genocide — announced plans to charge six Kenyans for orchestrating the postelection violence. The most important suspect was Uhuru Kenyatta; the son of Kenya’s first president, Jomo Kenyatta, he was considered by many Kikuyu to be their natural leader...Alex Whiting, a onetime federal prosecutor in Boston who became Moreno-Ocampo’s prosecutions coordinator, told me the Kenyatta case “was like trying to prosecute an organized-crime case without the tools the Department of Justice uses to prosecute organized crime” — though, for this reason, Moreno-Ocampo’s temperament was an asset. “You have to have a big ego, because you don’t have much else.”
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Reuters
‘Grumpy hold-outs’ could sink Bitfinex recovery plan after Bitcoin theft
Crypto-currency exchange Bitfinex's plan to impose losses on all its trading clients for the theft by hackers of $72 million in Bitcoin rests on two flawed pillars, according to lawyers. The Hong Kong-based exchange said on Aug. 2 that hackers had stolen 119,756 bitcoins from some clients' accounts, the second-biggest such hack in dollar terms, and later said it would spread the losses across all its customers, whether or not they had been hacked or even held bitcoin...Patrick Murck, a fellow at Harvard University's Berkman Klein Center for Internet & Society, said the Bitfinex plan was unlikely to survive a legal challenge. "It might be a pyrrhic victory. You might still end up with less money," said Murck, who is also co-founder of the Bitcoin Foundation and its former general counsel, but the "odds are fairly low" that nobody will test it in court. "It takes one grumpy hold-out ... to blow the whole thing up,” he said.
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Politifact
Clinton’s views do not go against the Constitution
Khizr Khan, the father of a Muslim-American soldier who was killed in the Iraq War, accused Donald Trump of not reading the Constitution. Rep. Chris Collins, a Trump supporter, turned the claim around on Hillary Clinton. During an interview on MSNBC, Collins made assertions about Clinton’s views on the Constitution in the context of the Gold Star father’s Democratic National Convention speech. "He stood next to Hillary Clinton, who has already said she's going to wipe out the Second Amendment..."...We spoke to constitutional law experts Laurence Tribe from Harvard Law School and Matthew Steilen from the University at Buffalo about Collins' claim. In this case, they said executive actions and orders typically do not directly contradict the 10th Amendment.
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Bloomberg
A Court Ruling That Could Save the Planet
An op-ed by Cass Sunstein. A federal court this week upheld the approach that the government uses to calculate the social cost of carbon when it issues regulations -- and not just the cost imposed on Americans, but on people worldwide. It’s technical stuff, but also one of the most important climate change rulings ever. The social cost of carbon is meant to capture the economic damage of a ton of carbon emissions. The assumptions that go into the analysis, and the resulting number, matter a lot, because they play a key role in the cost-benefit analysis for countless regulations
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Bloomberg
Trump’s ‘Second Amendment’ Line Is Protected. Barely.
An op-ed by Noah Feldman. A century ago, Donald Trump might have gone to prison for suggesting that “the Second Amendment people” might find a way to stop Hillary Clinton’s agenda as president. Today, the First Amendment protects him -- barely. It’s still a federal crime to threaten the life of the president, and people go to jail for it all the time, despite the apparent abridgment of free speech. But while Trump’s words would probably get him a Secret Service visit if he were an ordinary crazy person, they wouldn’t lead to prosecution.
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Ottawa Citizen
Elephant-free circuses – it’s about time
An op-ed by Fellow Delcianna Winders. This weekend, the Royal Canadian Circus is coming to Ottawa for the first time. Also for the first time, this circus is elephant-free. For years, the Royal Canadian Circus, put on by the U.S.-based Tarzan Zerbini Circus, has featured elephants who are kept chained and forced to perform under threat of punishment. Endangered elephants can only be moved across borders legally if doing so will help the species. Shackling elephants (who evolved to roam great distances and suffer life-threatening foot and joint problems when confined), forcing them to perform unnatural tricks, and beating them when they don’t obey hardly helps conservation. In fact, studies show that such performances likely undermine conservation efforts. But under a dubious scheme set up by the U.S. government dubbed “pay-to-play,” Zerbini obtained import-export permits in exchange for promising to contribute a small fraction of its profits to conservation.
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Bloomberg
Religious Liberty Is a Little Different in the Military
An op-ed by Noah Feldman. How much leeway should Marines have to express their religious beliefs? According to Congress, religious liberty laws apply with full force to the military. But last week the highest court in the armed forces put some limits on claims by active-duty personnel. Those limits cut against recent trends in Supreme Court jurisprudence -- but they make a lot of sense in a military context, even if they shouldn’t necessarily be copied by other courts for civilians.
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Bloomberg
Shaming Could Be the Best Fix for Olympic Doping
An op-ed by Cass Sunstein. At the Olympics, we’re witnessing some serious cases of public shaming. Victorious competitors are publicly ostracizing those who once used performance-enhancing drugs. To take just one example, Australian Mack Horton, gold medalist in the 400-meter freestyle, pointedly refused even to acknowledge China’s silver medalist Sun Yang, who had been suspended for doping. “I don’t have time or respect for drug cheats,” Horton said later. Horton and others are aggressively asserting the social norm against drug use. By ostracizing those who violate that norm, they’re giving some important clues about the functions of norms in general -- and how they can be fortified.
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