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News@Law, 08/22/2016

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

Christian Science Monitor
DOJ: Stop jailing people just because they can’t afford bail (+video)
Holding a defendant in jail simply because they can’t afford a fixed bail amount is unconstitutional, the Justice Department said in a brief it filed Thursday in a Georgia lawsuit. "Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment," the department said in an amicus brief, referring to the Equal Protection Clause of the Constitution. ... Questions about the fairness of the criminal justice system even extend to the Supreme Court. A recent study published by Harvard Law Prof. Andrew Manuel Crespo found that in two-thirds of Supreme Court cases, criminal defense lawyers had argued fewer than two cases before the Court.
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Al Jazeera
On trial: the destruction of history during conflict
When the Roman Emperor Jovian ordered the burning of the Library of Antioch in the 4th century AD, there was nobody around to make him answer for what ancient Syrian culture buffs deemed a "barbaric act", according to records. Modern history is littered with cases of wartime razing, from the levelling of Dresden to the Taliban's Buddha demolition at Bamiyan. Politicians have been slow to crack down on ruinous acts, but experts hope that this month the curve will bend in the right direction. ...According to Harvard Law School scholar Alex Whiting, progress is slow, but gains are palpable. "When the US invaded Iraq, there was chaos, looting and the destruction of art and culture. No one had prepared for it at all," Whiting told Al Jazeera."This process is about drawing attention to the importance of those things. Hopefully, more care will be paid in the future."
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Chicago Sun-Times
Three ways Congress can muscle-up to your voting rights
An op-ed by Michael Golden and Harvard Law Professor Lawrence Lessig:  Over the last year, presidential candidates from both parties have ridden to great success the populist cry of a “rigged system” – in which billions of dollars in campaign cash have destroyed the very idea of a representative democracy. The American electorate has embraced this message. Donald Trump distilled the charge to a dozen words: “When you give, they do whatever the hell you want them to.” And in differing degrees and with different styles, Bernie Sanders and Hillary Clinton have both attacked the tight grip of campaign cash on the politics of our nation.But with three months to go before ballots get cast, only one of the two frontrunners – and her party – has unequivocally supported specific plans to solve these problems. And though the presidential race now dominates the media conversation, it is in Congress, which currently carries a 14 percent approval rating, where these solutions will matter the most. The polarization and paralysis on Capitol Hill, stemming from our rigged election system, prevents legislators from negotiating and compromising to make meaningful progress on the issues that Americans consistently prioritize.
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National Law Journal
Laurence Tribe Takes on Twitter Bar Over Trump Tweet
The can of worms opened with a teasing tweet from @tribelaw, the Twitter account of Harvard Law School professor Laurence Tribe. Tribe, a frequent social media critic of Republican presidential candidate Donald Trump, disclosed that Trump had called him for legal advice 20 years ago. Saying he kept his notes from the call and implying he might release them, the constitutional law scholar mused whether his discussion with Trump in 1996 would fall under the attorney-client privilege. (Tribe's tweet came in response to Democratic consultant Bob Shrum, who called Trump a blowhard — a charge with which Tribe appears to agree.)
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The New York Times
Military Vets Can Bring Much-Needed Sensitivity Training to Police Departments
An op-ed by Adrian Perkins `18. Police departments across the country should draw heavily from military veterans to fill their ranks. Many already do this, but they should take it a step further and adapt the United States Army’s sensitivity training program, which soldiers take before deployment. This program includes mock engagements with communities, as well as religious and cultural classes. The cultural and demographic divide between local law enforcement and the communities they police can be enormous. When there is a cultural gap as wide as the one in cities like Ferguson and the north side of Baton Rouge, inadequate training, military grade equipment and cell phone and body camera technology can turn neighborhoods into tinderboxes. Ideally, our police departments should focus on improving diversity within the force, but cultural training would also be good. Actively recruiting from the military could help on both fronts.
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American Prospect
Blue Cities, Red States
When Denton, Texas, passed a fracking ban in November 2014, it was national news. The story seemed out of a movie, a David-and-Goliath tale in which a scrappy band of citizens goes up against big industry and wins. Located in the heart of oil and gas territory, the town is hardly a liberal bastion; its state representative is a staunch conservative, and among its biggest annual events is the North Texas State Fair and Rodeo. But residents were watching gas drills come closer and closer to their parks and schools. ...Preemption is a relatively cut-and-dry legal matter in most states. Localities are creations of the states and have whatever power states grant them. “For more than a century, it’s been understood that city power derives from state law,” says Harvard Law School professor Gerald Frug, co-author of City Bound: How States Stifle Urban Innovation. “A lot of the fights have to be done at the state [level].”, co-author of City Bound: How States Stifle Urban Innovation. “A lot of the fights have to be done at the state [level].”
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The New York Times
Get Out of Gun Control, Apple
An op-ed by Jonathan Zittrain. This month, Apple previewed some changes to its next generation of iPhones and iPads with the promise that “all the things you love to do are more expressive, more dynamic and more fun than ever.” That especially includes emojis, those little icons that, according to one study, 92 percent of the online population now make part of their everyday communication. One change in particular, though, is not delighting everyone. Apple’s new suite of operating systems appears to replace its pistol emoji, which was an image of a six-shooter, with a squirt gun...To eliminate an elemental concept from a language’s vocabulary is to reflect a sweeping view of how availability of language can control behavior, as well as a strange desire for companies — and inevitably, governments — to police our behavior through that language. In the United States, this confuses taking a particular position on the Second Amendment, concerning the right to bear arms, with the First, which guarantees freedom of speech, including speech about arms.
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The Boston Globe
Boston officers say no to mediation program
Nearly a year after the Boston Police Department launched a mediation program to reduce a backlog of minor grievances against officers, not a single complaint has been mediated because the officers involved have refused to participate. The program, which began in September, was billed as a way to quickly resolve routine complaints such as allegations of disrespectful treatment, which would allow the department to spend more time investigating more serious allegations of misconduct or use of excessive force. But for a complaint to be mediated, both parties must agree to participate. Under the program, managed by the Harvard Mediation Program at Harvard Law School, officers are asked first if they want to participate. If they refuse, the party who filed the complaint is not offered the option of mediation...It’s not unusual that officers are reluctant, officials say. “Officer resistance” is the primary reason similar programs fail to catch on during the first year, said Rachel A. Viscomi, assistant director of the mediation program. “It’s not a process [officers are] familiar with,” she said. “It’s a challenge anytime you’re starting something new, especially when it’s so different from what they’re used to.” “It is disappointing, but not out of the norm by any stretch,” Viscomi said.
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The New Yorker
The Legacy of Lynching, on Death Row
...During the controversy, [Bryan] Stevenson visited the University of Texas Law School, in Austin, for a conference on the relationship between the death penalty and lynching. Jordan Steiker, the professor who convened the meeting, told me, “In one sense, the death penalty is clearly a substitute for lynching. One of the main justifications for the use of the death penalty, especially in the South, was that it served to avoid lynching. The number of people executed rises tremendously at the end of the lynching era. And there’s still incredible overlap between places that had lynching and places that continue to use the death penalty.” Drawing on the work of such noted legal scholars as David Garland and Franklin Zimring, Steiker and his sister Carol, a professor at Harvard Law School, have written a forthcoming book, “Courting Death: The Supreme Court and Capital Punishment,” which explores the links between lynching and state-sponsored executions. The Steikers write, “The practice of lynching constituted ‘a form of unofficial capital punishment’ that in its heyday was even more common than the official kind.”
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Bloomberg
Trump’s Campaign Against Immigrants Echoes (and Ignores) the Red Scare
An op-ed by Cass Sunstein...Which brings us to Donald Trump. No one should deny that Islamic terrorists want to kill Americans, and Trump is right to emphasize the need for careful screening procedures to keep Americans safe. But by branding his political opponents as in league with terrorists, and in calling for a new kind of Cold War, Trump is engaging in a form of 21st-century McCarthyism. In some ways, he’s outdoing McCarthy. The most alarming line in Trump’s national security speech this week has received far too little attention. It wasn’t his claim that we should admit only those people who “share our values.” Nor was it his vague proposal for a new “immigration screening test.” The most alarming line was his identification of “the common thread linking the major Islamic terrorist attacks that have recently occurred on our soil,” which turns out to be “that they have involved immigrants or the children of immigrants.”
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Bloomberg
The Troubling Case of an Attorney General Who Lied
An op-ed by Noah Feldman. It’s never the wrongdoing -- it’s the lying about it. Pennsylvania Attorney General Kathleen Kane, who announced her resignation Tuesday in the face of a possible 14-year sentence for her conviction on perjury charges, proves the truth of that adage for public corruption cases. Leaking grand jury proceedings to embarrass a political rival would not have gotten her sent to prison. But lying about it under oath could and will. How could a state’s top law enforcement official be so dumb? Why are perjury charges so serious? And why don’t people, even lawyers, realize it?
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The Guardian
Trump’s ‘deeply un-American’ stance on immigration prompts legal concerns
A quarter century after the end of the cold war, Donald Trump has proposed restoring ideological tests for immigrants, a move that legal experts say raises a tangle of practical and even constitutional concerns. In a speech on Monday devoid of policy details or specifics, the Republican nominee called for the “extreme vetting” of immigrants, including a screening process to root out applicants who do not uphold “American values”. Laurence Tribe, a liberal constitutional law professor at Harvard University, said Trump’s proposal was “a nonstarter”. “The proposal ... is very deeply un-American, is probably unconstitutional, would almost certainly fail in Congress and is another example of Trump having no idea what he’s talking about,” he said. Restricting immigrants on the basis of ideology is anathema to American values, Tribe argues. Freedom of speech and religion are enshrined under the first amendment of the constitution and the enduring symbol of freedom is the Statue of Liberty welcoming weary immigrants to its shores.
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