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News@Law, 08/29/2016

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

The Wall Street Journal
Ranking Law Professors by Judicial Impact
Chief Justice John Roberts may not think much of legal scholarship coming out of the academy these days, but judges (or at least their clerks) do read law reviews. That much is apparent in a new study gauging the judicial impact of articles published in peer-reviewed and student-edited law journals. ...Below is the paper’s ranking of professors by judicial citations. The top three all come from Harvard law school: constitutional scholars Richard Fallon and Cass Sunstein and administrative law professor John Manning. UCLA professor and Washington Post legal blogger Eugene Volokh and Yale professor Akhil Amar follow right below them.
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New York Times
Secrecy of Settlements at Fox News Hid Bad Behavior
Like many companies confronted with sexual harassment in their executive ranks, Fox News and its parent, 21st Century Fox, say they do not tolerate such behavior and have strict policies prohibiting it. ...If that’s so, how could the former Fox News chief executive, Roger Ailes, have conducted what now appears to have been a decades-long campaign of sexual abuse and harassment of subordinates? ... “A lot of men have gotten away with sexual harassment with absolutely no consequences,” said Catharine A. MacKinnon, a professor of law at the University of Michigan and Harvard Law School who pioneered sexual harassment lawsuits. No matter what companies say, she added, “the real rule is that the more powerful a man is, the more he gets away with.”
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The New Yorker
The case against Fox News
An essay by Jeannie Suk GersenYears ago, I briefly considered a job on a different career path. A person whose position made him a gatekeeper for that job had contacted me to ask if I was interested in being considered. He suggested we meet to discuss it, and named a restaurant. When I arrived, we had a respectful conversation about my qualifications.
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The New York Times
Bankruptcy for Banks: A Sound Concept That Needs Fine-Tuning
An op-ed by Mark Roe and David Skeel Jr:  The House of Representatives is pushing to enact a bankruptcy act for banks. It has passed a bankruptcy-for-banks bill, sent it to the Senate, and now embedded it in its appropriations bill, meaning that if Congress is to pass an appropriations bill this year, it may also have to enact the bankruptcy-for-banks bill. Is that a good idea? In concept, bankruptcy for banks makes sense: Why should they get the benefits of government bailouts that industrial companies rarely receive? The answer usually is that a bank failure can bring down the economy, while an industrial failure cannot. But if banks can be reorganized in bankruptcy, the possibility of a win-win result is in the cards. We could restructure a big bank to stop it from damaging the economy, but without having to bail it out. The two of us support this concept — and indeed one of us worked extensively with the Hoover Institution to draft such a bankruptcy proposal. But the bill in play has several dangerous features that could make bailouts more likely, not less likely.
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New York Times
Where the Death Penalty Still Lives
Twenty states and the District of Columbia have abolished capital punishment. Four more have imposed a moratorium on executions. ... A new geography of capital punishment is taking shape, with just 2 percent of the nation’s counties now accounting for a majority of the people sitting on death row. ... “Racism is the historical force that has most deeply marked the American death pen­alty,” says Carol Steiker, a Harvard law professor and an author of the forthcoming book “Courting Death: The Supreme Court and Capital Punishment From Colonial Days to the Present.”
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Time
The Single Bad Reason We Waste Billions of Pounds of Food
Op-ed by Jacob Gersen: ... [T]he federal government estimates that each year the average four-person household wastes more than two million calories, the equivalent of $1,500. Why exactly are we paying millions of dollars to throw away food? One answer—maybe the answer—is law. A mix of federal, state and local laws make it almost impossible to get food that would otherwise be wasted to those who could use it.
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ABC News
Differences Aside, Supreme Court Unites Trump, Senate GOP
Differences aside, Donald Trump and Senate Republicans are strongly united on one issue — ideological balance on the Supreme Court. While Democrats are pushing the GOP-led Senate to confirm Supreme Court nominee Merrick Garland by the end of President Barack Obama's term, Majority Leader Mitch McConnell, R-Ky., has been resolute in blocking him, saying the next president should fill the high court vacancy. Republicans maintain it's a winning political strategy in a year when some GOP rank and file are struggling with reasons to vote for their nominee. ... Friends of Garland point out that he went through another lengthy confirmation delay when his appeals court appointment was held up for 19 months. He was later confirmed in 1997 on a 76-23 vote. "He has given no sign of being frustrated," said Laurence Tribe, a Harvard Law professor and longtime friend to his former student.
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ABA Journal
Conservative groups push for constitutional convention; would it open Pandora’s box of mischief?
Conservative groups pushing for a constitutional convention are just six states short of their goal. Thirty-four states are needed to call a constitutional convention under Article 5of the Constitution. So far 28 states have adopted resolutions for a constitutional convention to consider an amendment that requires a balanced federal budget, the New York Times reports. ... Harvard law professor Lawrence Lessig isn’t worried about a runaway convention. “The very terms of Article 5 state that proposals aren’t valid unless they’re ratified by three-fourths of the states,” he tells the Times. “There’s no controversial idea on the left or the right that won’t have 13 states against it.”
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Atlanta Journal Constitution
Inside the conservative push for states to amend the Constitution
Taking advantage of almost a decade of political victories in state legislatures across the country, conservative advocacy groups are quietly marshaling support for an event unprecedented in the nation’s history: A convention of the 50 states, summoned to consider amending the Constitution. ... So what rules would an amendments convention follow? “The answer to almost every question you could ask is ‘We don’t know,'” said Michael J. Klarman, a constitutional law expert at Harvard whose book on that convention, “The Framers’ Coup: The Making of the United States Constitution,” will be published in October. “I think a convention can do anything they want — re-establish slavery, establish a national church. I just don’t think there’s any limit.”
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The Hill
A bombshell in the broadband privacy debate
The unique American right to privacy – the Constitutional right to be “secure in their persons, houses, papers, and effects” birthed as a direct response to the British crown’s unfettered “general warrant” rights to search colonial homes is so fundamental today that nary a politician will seek to question it. The same can be said for our First Amendment’s freedom of speech and the Fifth Amendment’s guarantee of equal protection. This is what makes so amazing how the FCC might be thumbing its nose at all three core principles in its latest “privacy rulemaking.” And the noting of this came in a major broadside delivered by the most revered constitutional scholar of the day – Harvard Law School’s Laurence Tribe. In a major speech before the Media Institute, Tribe says that the effort by the FCC to strictly regulate some Internet companies’ privacy practices and not others is an affront – one that will not survive constitutional scrutiny.
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The Boston Globe
Saying goodbye to the courtroom
An op-ed by Lecturer David Hoffman. After 31 years as a courtroom lawyer, I have decided to walk away from litigation. I have been mulling this decision for many years, primarily because of my disgruntlement — and my clients’ disgruntlement — over the costs, delays, and the sheer unpredictability of courtroom battle. Trial lawyers often comment ruefully: “I have lost cases I should have won, and just as often won cases I should have lost.” It was not an easy decision. To be completely blunt, litigation is lucrative, even if it is sometimes ruinously expensive for clients. Litigation can also be immensely satisfying, when you win.
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Boston.com
DA: FBI agent, Boston officer justified in shooting terror suspect Usaamah Rahim
More than a year after Usaamah Rahim was shot to death by an FBI agent and a Boston police officer in a Roslindale parking lot, Suffolk County District Attorney Daniel Conley has announced that his office will not be pursuing criminal charges against the agent and officer who shot him. ... Harvard Law Professor Ronald Sullivan, who is representing Rahim’s family, said that while they still have to review the report, which is more than 700 pages, the possibility of pressing civil charges against the FBI and Boston police remains open.
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WFSU
Harvard Study Says Duval A Death Penalty Hot Spot
A study by Harvard Law School’s Fair Punishment Project is pointing to Duval County as a national hot-spot for the death penalty. A new study by Harvard researchers says Duval is one of only 16 counties in the country that imposed five or more death sentences in the past five years.  Senior Research Fellow Robert Smith says that puts Duval in the same league with major urban areas like Los Angeles and Phoenix. “When we started looking into the cases, what we found was this record of just overzealous prosecution.” Sixteen death sentences were handed down in Duval in the past five years, according to the study, and nearly half of the cases involved defendants with serious mental impairment.
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New York Post
A liberal legal icon condemns the IRS’ abuses
One of the leading liberal lights of American law now says the “IRS is engaged in unconstitutional discrimination against conservative groups and must be halted.” To be clear, Harvard prof Laurence Tribe is a convert: Early in the week, he sent out a tweet dismissing the idea of an IRS scandal as long-debunked. But, as the Cato Institute’s Walter Olson noted at Overlawyered, for once social media actually shed light on a dispute: Others asked Tribe to read this month’s DC Circuit Court of Appeals ruling against the IRS in the case — and he did.
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Bloomberg View
Two Liberal Judges Take a Stand Against Tenure
An op-ed by Noah FeldmanIn a victory for teachers’ unions, the California Supreme Court on Monday refused to strike down the state’s generous tenure laws -- which a lower court had said violated students’ rights to an adequate education. Significantly, the court’s 4-3 ruling didn’t break down on purely partisan lines. Two prominent liberals, each of whom could be contenders for the U.S. Supreme Court in a Hillary Clinton administration, dissented. That’s evidence of a growing divide among liberals about whether favoring teachers might actually be a bad thing for students. In 2014, a California lower court judge struck down teacher tenure provisions as violating the state constitution. As I noted the time, California’s laws seem poorly designed, allowing tenure after just two years and even when the teacher may not be fully credentialed. Aside from the badness of the law, I criticized the judicial decision harshly for its lack of well-developed constitutional reasoning. Among other things, the court simply asserted in a single paragraph that poor schools tend to get worse teachers, and that this counts as a violation of the equal protection of the laws.
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Bloomberg View
Don’t Censor Terrorists’ Names
An op-ed by Noah Feldman: Major media outlets in France have recently decided not to publish the names and faces of terrorists so as not to glorify them and encourage copycats. On the surface, this might seem like reasonable self-imposed discretion in the interests of national security. But it’s actually self-censorship -- and it’s dangerous. It reflects a subtly mistaken conception of why jihadis are prepared to die for their cause, and it risks dehumanizing an enemy that is dangerous precisely because its adherents are humans with identifiable motives. The French daily Le Monde, the Catholic newspaper La Croix and a French affiliate of CNN called BFM-TV expressly connected their decisions to the recent spate of attacks in France. Le Monde said the goal was to prevent “posthumous glorification” of the terrorists.
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Bloomberg View
States Can Make Voting Harder as Long as It’s Fair
An op-ed by Noah FeldmanWhen a state has made it easier to vote, can it reverse course and make it harder? The simplest answer is that it can -- provided the effects don’t disproportionately hurt racial minorities. But the devil is in the details, as a divided federal appeals court proved this week when it upheld Ohio’s rollback of its “Golden Week,” in which voters could register and vote at the same time. Two judges thought Ohio’s otherwise expansive voting opportunities made the revocation of Golden Week no problem. A third thought the Ohio legislature’s decision imposed a disparate burden on black voters, and was unlawful. Both positions were right. Behold the difficulty of applying voting rights law fairly and rationally in the age of subtle discrimination.
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Bloomberg View
Transgender Rights Lose One Round to Religious Rights
An op-ed by Noah FeldmanReligious liberty and transgender rights are two of the signature civil-rights issues of our era. So it was only a matter of time before these competing ideals of freedom and equality came into direct conflict -- and now a federal district court has held that religious-liberty laws can trump the laws that prohibit sex-based discrimination. The decision is an indication that the courts need to recognize bias against transgender people as a form of sex discrimination. The case involves an employee of a Michigan funeral home who began transitioning from male to female. The funeral home has a gendered dress code that requires male funeral directors to wear suits with trousers and female directors to wear skirt suits. The employer refused to allow the transitioning employee to wear a skirt suit on the job, firing her when she refused to wear the men’s attire.
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Bloomberg View
Bringing a Chicken to the Immigration Fight
An op-ed by Noah Feldman: Cockfighting, although practiced around the world, is banned in all 50 states. But is someone who breaks the ban committing a crime of moral turpitude? A federal appeals court has said no, declining to deport an immigrant convicted of facilitating a cockfight. In a line that may outrage animal-rights activists, the court said that a crime of moral turpitude must involve harm to third parties, not just directly to the chickens. The outcome is correct for the immigrant, but not precisely for the reason the court gave. In a society that condones the factory-farm killing of billions of animals, it would be the height of hypocrisy to deport someone for killing just one rooster pursuant to an unfamiliar cultural practice.
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Florida Times-Union
Another week, another magazine feature about State Attorney Angela Corey and Public Defender Matt Shirk
A new Harvard Law School report and The New York Times Magazine feature released Tuesday focus on Duval County’s role as a leading place where convicted criminals are sent to death. The Fair Punishment Project, of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, highlighted the 16 counties that sentenced at least five people to death from 2010 to 2015. Duval ranked second in the nation per capita with 16 death sentences, and 88 percent of its death sentences since 2006 were not unanimous.
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ABA Journal
Conservative groups push for constitutional convention; would it open Pandora’s box of mischief?
Conservative groups pushing for a constitutional convention are just six states short of their goal. Thirty-four states are needed to call a constitutional convention under Article 5 of the Constitution. So far 28 states have adopted resolutions for a constitutional convention to consider an amendment that requires a balanced federal budget, the New York Times reports. ... Harvard law professor Lawrence Lessig isn’t worried about a runaway convention. “The very terms of Article 5 state that proposals aren’t valid unless they’re ratified by three-fourths of the states,” he tells the Times. “There’s no controversial idea on the left or the right that won’t have 13 states against it.”
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The (South Jersey) Courier-Post
Bill protects animals and people
A letter by Fellow Delcianna Winders. Will Coggin of the Center for Consumer Freedom — a lobbying group that shamelessly defends tobacco companies, agribusiness and other corporations — suggests that S63, state Sen. Ray Lesniak’s bill to protect consumers, cats, and dogs, is “a bad bill” Nothing could be further from the truth. Lesniak’s bill, which the Senate overwhelmingly passed and is now pending before the Assembly as A2338, is an important measure to protect against the many problems created by large-scale commercial breeders, which, like many of the businesses Coggin represents, put profits above the interests of consumers and animals.
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