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News@Law, 09/06/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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People
25-Year-Old Blind Woman Inspired to Become Disability Rights Lawyer: ‘I Had to Advocate for Myself Every Day’
Jameyanne Fuller [`19] is used to living life with no limits. Blind since birth, Jameyanne has scaled an Andean mountain, earned a perfect 800 on her math SATs (despite her elementary school claiming blind children couldn't learn math), used Braille to graduate Kenyon College with the highest of academic honors and was awarded a prestigious Fulbright scholarship to teach in Italy. Oh, and she's also written two novels.
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Harvard Gazette
In lives of others, a compass for his own
It took Pedro Spivakovsky-Gonzalez several years and nearly 10,000 miles, on a journey that included several cities around the world, to find his calling in his hometown. The son of political refugees from the former Soviet Union and Spain, Spivakovsky-Gonzalez, J.D. ’17, was born in Boston but grew up in Spain and Canada. He studied economics at the University of California at Berkeley, completed a master’s in development studies at the University of Cambridge in England, and went to work as a research economist in Washington, D.C. It was after his stints in Cambridge and Washington that he experienced “the dissonance” of studying poverty and inequality in wealthy institutions, and the limits to making a direct impact on people’s lives as a researcher...But the real epiphany came while working at the Harvard Legal Aid Bureau, one of the School’s clinical programs and the oldest student-run organization in the United States.
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WBUR
Harvard Is Digitizing Nearly 40 Million Pages Of Case Law So You Can Access It Online And For Free
Not too long ago, a statement like this spoken in the hushed, hallowed hallways of the Harvard Law School library would have been considered heresy: "I think for court decisions, law books are becoming obsolete and even to some some degree a hindrance." That's Adam Ziegler, and he's no heretic. He's the managing director of the Library Innovation Lab at Harvard. Ziegler is leading a team of legal scholars and digital data workers in the lab's Caselaw Access Project. "We want the law, as expressed in court decisions, to be as widely distributed and as available as possible online to promote access to justice by means of access to legal information," Ziegler said. "But also to spur innovation, to drive new insights from the law that we've never been able to do when the law was relegated to paper."
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The Harvard Crimson
Law Review Inducts Most Diverse Class of Editors in History
For the first time in the publication’s nearly 130-year history, the Harvard Law Review inducted a group of editors this year whose demographics reflect those of their wider Law School class—including the highest-ever percentages of women and students of color. The demographic composition of the new editors—who were selected over the summer—reflects the broader makeup of the Law School’s class of 2018, according to numbers provided by Harvard Law Review President Michael L. Zuckerman ’10. Forty-six percent of the incoming editors are women, an increase of about 10 percentage points from an average of the past three years. Forty-one percent are students of color, compared to the same three-year average of 28 percent on the Law Review...“The descriptive stats of the Review haven’t historically been inclusive and so that may signal to some people that it’s not an inclusive place, because it didn’t have an inclusive membership,” said Imelme Umana, a second-year Law student and new Law Review editor...Law Review Vice President Kaitlin J. Beach, who said she has felt frustrated in the past as a female editor, added she thinks the new class’s diversity is already shifting discussions and priorities at the Law Review.
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Al.com
Religious discrimination has no place at the DMV
An op-ed by Caleb C. Wolanek `17. Religious discrimination has no place in our democracy. Like any other form of invidious discrimination, we believe that whether someone is Christian, Muslim, Jewish, or Hindu is completely irrelevant to government decision-making...Yesterday, the ALCU filed a lawsuit on behalf of Yvonne Allen, a Christian who believes she must wear a headscarf. Government officials at the DMV in Lee County told Ms. Allen that she could not wear her headscarf in her license photo. That alone raises a religious liberty issue. But the DMV made it worse: officials directly told her that she would have been permitted to wear her headscarf if she was a Muslim. That is the very essence of religious discrimination.
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The New Yorker
The Public Trial of Nate Parker
An op-ed by Jeannie Suk Gersen. A poster for Nate Parker’s new film, “The Birth of a Nation,” to be released in October, shows a photo of Parker’s head hoisted in a noose fashioned out of a twisted-up American flag. Parker stars in, wrote, produced, and directed the film, which tells the story of Nat Turner’s life and the slave rebellion he led in 1831. The title is appropriated from the famous 1915 silent film of the same name, which is set during the Civil War and Reconstruction, and in which black men (often played by white actors in blackface) are portrayed as wanting to sexually coerce white women. Parker counters this fantasy by showing an act of sexual violence against a black woman by white men. In his film, the revolt is partly inspired by a gang rape of Turner’s wife. It is hard to avoid the sense that, in creating his film, Parker was reflecting on the rape accusation for which he was tried fifteen years ago.An op-ed by Jeannie Suk Gersen. A poster for Nate Parker’s new film, “The Birth of a Nation,” to be released in October, shows a photo of Parker’s head hoisted in a noose fashioned out of a twisted-up American flag. Parker stars in, wrote, produced, and directed the film, which tells the story of Nat Turner’s life and the slave rebellion he led in 1831. The title is appropriated from the famous 1915 silent film of the same name, which is set during the Civil War and Reconstruction, and in which black men (often played by white actors in blackface) are portrayed as wanting to sexually coerce white women. Parker counters this fantasy by showing an act of sexual violence against a black woman by white men. In his film, the revolt is partly inspired by a gang rape of Turner’s wife. It is hard to avoid the sense that, in creating his film, Parker was reflecting on the rape accusation for which he was tried fifteen years ago.
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The New York Times
Why Airgas Was Finally Sold, for $10 Billion Instead of $5 Billion
Big shareholders do not always play nice. They strip away founders’ responsibilities. They side with activist hedge funds. They vote for takeovers even when a board is resisting. Those are the types of shareholders that McCausland encountered toward the end of his three-decade reign at the industrial gas distributor Airgas. By 2015, he could not take it anymore. He searched globally for a buyer...The ruling was — and remains — controversial. “The court’s case allowing the indefinite use of the poison pill for this purpose established an unfortunate precedent,” said Lucian A. Bebchuk, director for the Program on Corporate Governance at Harvard Law School. “There is significant empirical evidence indicating that, on the whole, the current expansive use of takeover defenses is detrimental to the interests of shareholders and the economy.”
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Forbes
The GMO Labeling Fight Is Not Industry Versus Consumers
An op-ed by Steve Ansolabahere and Jacob E. Gersen. In late July, President Obama signed a bill requiring some form of labeling of foods containing genetically engineered materials. The measure preempts state laws, like Vermont’s, that require different labels than those mandated by the federal measure. The law requires companies to disclose any genetically engineered materials, but does not require them to disclose that fact on the label or product itself. Rather, if companies choose, they can simply put a bar code or QR code that consumers could scan with a smartphone to retrieve the relevant information. Smaller companies would be allowed to include only a phone number that consumers could call to learn whether their food is genetically engineered. The call-me-later approach to food labeling is more than a bit unusual.
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Penn Live
What if James Harrison kept fighting the NFL’s PED investigation?
James Harrison sat down with the NFL for an interview he never believed in to answer questions about a report he publicly called bulls*** for an investigation overseen by Roger Goodell, who he's repeatedly referred to as a crook, among much worse. He did it so he could play...Still, he would be likely to lose, said Carfagna, a visiting sports law professor at Harvard Law School. As long as his punishment came from an agreement that was collectively bargained – both the PED policy and league CBA were – Section 301 of the Labor Management Relations stops a judge from ruling in Harrison's favor, Carfagna said. "We're pre-empted from even considering this," he said. A distinction between the PED policy and the CBA effectively doesn't matter, Carfagna said, as the league gets to decide if it thinks either policy was broken and then open an investigation.
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The Atlantic
Did Facebook Defame Megyn Kelly?
Facebook set a new land-speed record for situational irony this week, as it fired the people who kept up its “Trending Topics” feature and replaced them with an algorithm on Friday, only to find the algorithm promoting completely fake news on Sunday. Rarely in recent tech history has a downsizing decision come back to bite the company so publicly and so quickly...Jonathan Zittrain, a professor of law and computer science at Harvard University, likened Facebook’s decision to use impersonal aglorithms to “confining things to the roulette wheel.” “Even the casino isn’t supposed to know what number is going to win when it spins. And so, if there’s some issue, at least it isn’t intentional manipulation by Facebook,” he told me. Google claims the same innocence with its search results, he said.
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Backchannel
Blame Your Lousy Internet on Poles
An op-ed by Susan Crawford. America, we have a problem, and it is tall, ubiquitous, and on the side of the road. It is poles. Not the polls that do or do not track the progress of Donald Trump. Not people of Polish extraction. Utility poles. Poles are the key to our future, because poles are critical components of high-speed fiber optic internet access. The lucky towns that have dominion over them have been transformed—take, for example, Chattanooga.
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Associated Press
Correction: Immigration-Family Detention Story
A legal ruling that would send 28 detained immigrant mothers and their children back to Central America despite their claims they would be persecuted upon return was upheld on Monday by a federal appeals court. A panel of the U.S. Court of Appeals for the Third Circuit denied asylum to the women from Honduras, Guatemala and El Salvador. Judge D. Brooks Smith wrote in the decision that the justices were "sympathetic to the plight" of the petitioners, but he added that since the women arrived in the United States "surreptitiously" they were not entitled to constitutional protections...Gerald Neuman, a Harvard Law School professor who co-chairs the school's Human Rights Program, said Monday the ruling is a "shocking outcome." "This court has held that these people have no rights under the Suspension Clause," he said, referring to a section of the U.S. Constitution which says the right of habeas corpus cannot be suspended unless in cases of rebellion or invasion. Neuman pointed out that courts have even ruled that prisoners held at Guantanamo Bay have the right to contest their imprisonment. Neuman and more than a dozen scholars and organizations filed a brief in support of the immigrants' arguments, outlining why they should have the right to contest their detention.
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Bloomberg
All Immigrants Deserve a Court Hearing. Period.
An op-ed by Noah Feldman. Do undocumented mothers and children who are caught just after they’ve entered the country illegally deserve judicial review after immigration officials have decided they don’t qualify for asylum? If you’re a foreigner denied access to the U.S., you have no right to a court hearing. If you’ve been in the country for a while, even illegally, you’re entitled to face a federal judge before being deported. But there's a constitutional gray area that applies to undocumented immigrants who are caught within two weeks of entering the country or within 100 miles of the border.
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Bloomberg
A Bad Ruling for Those Who Want to Throttle AT&T
An op-ed by Noah Feldman. Ma Bell came back from the grave Monday, saving AT&T from the supervision of the Federal Trade Commission. The FTC had sued the company for intentionally “throttling” the mobile internet for its unlimited data customers when they passed a certain usage. A federal appeals court rejected the suit on the ground that as a common carrier, AT&T is exempt from FTC regulation. The outcome is wrong, the product of a literalist reading of the laws that produces terrible real-world consequences. It should be reversed, by the courts or by Congress.
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The Philadelphia Inquirer
The down view of index funds
...Index funds are guided not by the wizardly stock-pickers of old but by number crunchers who buy lists of representative securities and hold them, rise or fall. They have cut costs and boosted profits for large and small investors. But U.S. and European professors scrutinizing the impact of the Big Three index-fund purveyors - BlackRock Inc., Vanguard Group, and State Street Corp. - say they see, in the triumph of indexing, not just a cheap way for investors to squeeze profits but also threats to capitalism as we know it...Joint control over major companies by few large U.S. investment managers "can help explain fundamental economic puzzles, including why corporate executives are rewarded for industry performance" instead of just their own, "why corporations have not used recent high profits to expand output and employment, and why economic inequality has risen," writes Einer Elhauge, professor at Harvard Law School, in an essay on "Horizontal Shareholding" in the Harvard Law Review that cites Azar's work at length.
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The Harvard Crimson
HLS Profs Score High on Judicial Impact, But Women Fall Short
Harvard Law professors rank highest nationwide in the judicial impact of their legal scholarship, according to a new study examining citations of law review articles by U.S. high courts, but no women scholars across the country placed in the top 25. The study ranked the top 25 law professors according to the number of judicial citations their scholarly works receive, and Harvard Law School professors Richard H. Fallon, Cass R. Sunstein ’75, and John F. Manning ’82 claimed the top three spots...Fallon described the challenge law professors face in trying to bridge two groups—“practicing lawyers and judges” and “more theoretically minded professors and students”—whose interests often diverge. “I would like to think that we at Harvard Law School do a good job at keeping a foot successfully in both camps.”...Manning, who wrote in an email that he believes that judicial citations are not the most meaningful measure of scholarly impact, thinks that women should already rank higher. “By any reasonable measure of quality of legal scholarship (which citation counts capture only very imperfectly), there are certainly women who belong in the top 25,” he wrote.
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Politico
Is This the Way to Get Rid of the Ridiculous Health Conspiracy Theories?
In August, this often-silly presidential campaign became a medical theatre of the absurd. After Donald Trump campaign surrogates raised questions about Hillary Clinton’s physical stamina—and circulated photos of her propped up by pillows—she demonstrated her strength … by opening a pickle jar on late-night TV. Meanwhile, wild speculation about Trump’s mental fitness led New York Times columnist Maureen Dowd to imagine up an entire scenario where Trump is institutionalized post-election...Ethicists point out that a mandatory medical review might not be feasible. While some important jobs—think airline pilot—do require medical approval, it would be harder to make the case for a politician and would raise complicated legal questions. So “let’s assume it is not a government panel,” muses Harvard ethicist I. Glenn Cohen, “but rather something that candidates voluntarily undertake.” He points to how the American Bar Association, for instance, has historically rated the qualifications of Supreme Court nominees. Many lawmakers say they consider the ABA’s assessment as one factor among many when vetting a judicial appointee. Yes, it’s possible for candidates to buck a voluntary expectation—Trump’s doing it right now with his tax returns—but it reframes the focus, Cohen argues.
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The Florida Times-Union
As celebrities celebrate, legal experts assess the reasons for defeats of Angela Corey and others
As voters around the country decided the fates of Sens. Marco Rubio and John McCain and Rep. Debbie Wasserman Schulz, at least a few observers focused on the primary for Jacksonville’s elected prosecutor. Ten-time Grammy Awards winner John Legend celebrated State Attorney Angela Corey’s loss. So did “Orange Is The New Black” author Piper Kerman and former Democratic presidential candidate and Vermont Gov. Howard Dean...Harvard Law School professor Ronald Sullivan said, “Overzealous prosecutors, like Angela Corey, who have resorted to pursuing draconian sentences regardless of the circumstances will soon see themselves being replaced with leaders who have rejected these failed policies of the 1980s and ’90s, and are truly committed to reforming the justice system with proven, evidence-based, equitable solutions that increase public safety.”...David Harris, managing director of the Charles Hamilton Houston Institute at Harvard Law School, said the election results show that “voters have spoken in no uncertain terms about the kind of change they want to see and it speaks well beyond any single prosecutor to changes across the justice system.”
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The Harvard Crimson
If History is Guide, Grad Student Unionization Path May Be Rocky Despite Ruling
...Despite the lengthy road ahead, John T. Trumpbour, research director of the Labor and Worklife Program at Harvard Law School, said he believes the students can win their battle. “The Harvard graduate students right now are in a much better position to achieve victory for unions than was the case then,” Trumpbour said. “People right now are so much more organized and energized.” In the same turn of events that happened in the early 2000s, the upcoming presidential election could impact the Board’s decision. Trumpbour said a Donald Trump administration would be in the University’s best interest, with the idea that he would pack the NLRB with Republican appointees who would reverse the decision. “They’re kind of in a tough position because they are very afraid of Trump getting elected for a variety of reasons, but on this particular issue they would much more be in need of a Republican president to get the Board’s composition to change,” Trumpbour said.
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CNN
Donald Trump is a risk we can’t take
An op-ed by Charles Fried. It was urgent that Hillary Clinton in her Reno speech indict Donald Trump for his regular, unremitting embrace of the slogans, causes and emblems of the far right (not conservative, please!) hate-mongering fringe of our public discourse.This is not just an accidental association. It is his chosen signature. Remember, he was an enthusiastic birther and has gone on to embrace every sinister paranoid fantasy since.These are not ghosts you can raise just when it seems convenient or because a particular crowd might thrill to them and then when the time comes to govern you can waive aside and pretend you never summoned them. You lie down with dogs, you get up with fleas. And these fleas carry the disease of virulent hatred and discord.
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Bloomberg
Don’t Muzzle Judicial Candidates on Politics
An op-ed by Noah Feldman. Just about the only thing dumber than judicial elections is trying to regulate what judges can say when they’re running for office. Last year, the Supreme Court struggled with this problem in a case about judicial fundraising. Now an appeals court has struck down elements of Kentucky’s nonpartisan judicial election rules that try to regulate how judges can talk about party affiliation. The court came up with a good general principle -- namely, that states can’t try and have it both ways, staging judicial elections while barring candidates from explaining why they should be elected. But the principle should be taken even further: If states choose judicial elections, then the First Amendment should require them to let those candidates speak freely, exactly like anyone else running for office.
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Bloomberg
In Praise of Radical Transparency
An op-ed by Cass Sunstein. Almost immediately after a new administration takes office, it must decide on its approach to releasing information. In early 2017, incoming officials should mount an unprecedentedly aggressive t
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